Acts and Regulations

2011, c.230 - Topsoil Preservation Act

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Current to 1 January 2024
2011, c.230
Topsoil Preservation Act
Deposited May 13, 2011
Definitions
1The following definitions apply in this Act.
“analyst” means an analyst designated under section 13. (analyste)
“highway” means highway as defined in the Motor Vehicle Act. (route)
“inspector” means an inspector designated under section 4. (inspecteur)
“Minister” means the Minister of Environment and Climate Change and includes any person designated by the Minister to act on the Minister’s behalf.(ministre)
“Ministerial Order” means a Ministerial Order issued under section 7. (arrêté ministériel)
“permit” means a permit issued under the regulations that has not expired or been suspended or cancelled. (permis)
“topsoil” means topsoil as defined in the regulations. (couche arable)
“vehicle” means a device in, on or by which a person or property is or may be transported or drawn on a highway, except a device moved by human power or used exclusively on stationary rails or tracks. (véhicule)
1995, c.T-7.1, s.1; 1996, c.25, s.34; 2000, c.26, s.272; 2006, c.16, s.174; 2012, c.39, s.146; 2020, c.25, s.111
REMOVAL OF TOPSOIL
Prohibition respecting removal of topsoil
2(1)Subject to the regulations, no person shall remove topsoil from a site or move topsoil from a parcel unless the person is the holder of a permit.
2(2)Subject to the regulations, no person who owns a parcel shall permit topsoil to be removed from any site within the parcel or moved from the parcel by any other person unless the person who owns the parcel is the holder of a permit.
1995, c.T-7.1, s.2, s.3
Prohibition respecting transportation of topsoil
3No person shall transport topsoil in, on or by a vehicle on a highway except in accordance with the regulations.
1995, c.T-7.1, s.4
INSPECTORS
Designation and powers of inspectors
4(1)The Minister may designate persons as inspectors for the purposes of this Act.
4(2)For the purpose of ensuring compliance with this Act and the regulations, an inspector may
(a) at any reasonable time enter and inspect any site, parcel, place or premises, except a private dwelling, that the inspector believes on reasonable grounds is being used for or in connection with the removal, moving or transportation of topsoil, and
(b) at any time stop and inspect any vehicle and its load that the inspector believes on reasonable grounds is being used for or in connection with the removal, moving or transportation of topsoil.
4(3)When an inspector conducts an inspection under subsection (2), the inspector may
(a) conduct any tests or analyses and take any measurements,
(b) take samples of any substance or material,
(c) require the production of any documentary material, regardless of physical form or characteristics, that the inspector believes on reasonable grounds contains information that is relevant to the administration of this Act and the regulations, and
(d) examine and make copies and extracts of any records or other documents or papers that the inspector believes on reasonable grounds contain any information that is relevant to the administration of this Act and the regulations.
4(4)An inspector shall, when requested, provide proof of identification on a form provided by the Minister.
4(5)An inspector may detain for the purposes of evidence any sample of any substance or material and any documentary material, regardless of physical form or characteristics, that the inspector discovers while acting under this section and believes, on reasonable grounds, may afford evidence of a violation of or a failure to comply with a provision of this Act or the regulations.
4(6)Before or after attempting to effect entry under this section, an inspector may apply for an entry warrant in accordance with the Entry Warrants Act.
1995, c.T-7.1, s.5
Assistance to inspectors
5The owner or person in charge of any site, parcel, place or premises or any vehicle or load inspected under section 4 and any employees or agents of the owner or person in charge shall give all reasonable assistance to an inspector to enable the inspector to carry out the inspector’s duties under this Act and shall furnish the inspector with such information as the inspector may reasonably require.
1995, c.T-7.1, s.6
Obstruction of inspectors
6No person shall
(a) fail to comply with any reasonable request of an inspector,
(b) knowingly make a false or misleading statement, either orally or in writing, to an inspector,
(c) alter or interfere in any way with anything removed by an inspector, or
(d) obstruct or hinder an inspector in the carrying out of the inspector’s duties under this Act.
1995, c.T-7.1, s.7
ACTION BY THE MINISTER
Ministerial Order
7(1)The Minister may issue a Ministerial Order requiring the person to whom it is directed to do, in accordance with the directions set out in the order, one or more of the following:
(a) to cease removing topsoil from a site or moving topsoil from a parcel or to cease permitting the removal of topsoil from a site or the moving of topsoil from a parcel
(i) permanently,
(ii) for a specified period, or
(iii) in the circumstances set out in the order;
(b) to alter the manner of removal of topsoil from a site; or
(c) to carry out rehabilitation of the site or the parcel or other remedial action in relation to the site or the parcel from which topsoil is, or has been, removed or moved.
7(2)A Ministerial Order requiring the rehabilitation of a site or a parcel or other remedial action in relation to the site or the parcel may include
(a) a requirement that the person to whom the order is directed provide to the Minister such drawings, specifications and other information in relation to the site or the parcel as the Minister requires, and
(b) a compliance schedule requiring the completion of specified stages of rehabilitation or other remedial actions by specified dates.
7(3)A single Ministerial Order may be directed to one or more persons.
7(4)A Ministerial Order shall be in writing and shall include reasons for the order.
7(5)When a Ministerial Order is served on a person to whom it is directed, that person shall comply with the order.
7(6)A Ministerial Order remains in effect until rescinded by the Minister.
7(7)A person to whom a Ministerial Order is directed may appeal in the manner provided by regulation, but the initiation of an appeal does not abrogate the requirement to comply with the Ministerial Order.
7(8)A Ministerial Order is binding on the heirs, successors, executors, administrators and assigns of the persons to whom it is directed.
1995, c.T-7.1, s.8
Other order by Minister
8If, in the opinion of the Minister, the action taken under a Ministerial Order is not adequate, the Minister may, verbally or in writing, order the taking of such remedial action as the Minister considers necessary.
1995, c.T-7.1, s.9
Remedial action by Minister
9If a person to whom a Ministerial Order or an order under section 8 is directed fails or refuses to comply in whole or in part with the order or part of the order, the Minister, together with such persons, materials and equipment as the Minister considers necessary, may enter on any land or premises, using the force the Minister considers necessary, and may take such further action as the Minister considers necessary to effect compliance with or to carry out the order.
1995, c.T-7.1, s.10
Liability
10(1)On written demand made by the Minister, any cost, expense, loss, damages or charge incurred by the Minister while acting under section 9, including the cost of all persons, materials and equipment employed and of repairing any damage done, shall be the liability of and paid by any person who failed or refused to comply with a Ministerial Order or an order made under section 8.
10(2)If more than one person has failed or refused to comply with a Ministerial Order or an order made under section 8, those persons are jointly and severally liable under subsection (1).
1995, c.T-7.1, s.11
Recovery by Minister
11(1)If the Minister has incurred any cost, expense, loss, damages or charge that remains unrecovered in part or in whole while acting under section 9 and the Minister has made a written demand under subsection 10(1), the unrecovered cost, expense, loss, damages or charge may be recovered by the Minister by action in a court of competent jurisdiction as a debt owed to the Crown in right of the Province.
11(2)In any action under this section, a certificate purporting to be signed by the Minister setting out the amount of the unrecovered cost, expense, loss, damages or charge referred to in subsection (1) is, without proof of the appointment, authority or signature of the person purporting to have signed the certificate, admissible in evidence and is, in the absence of evidence to the contrary, proof
(a) of the amount of the cost, expense, loss, damages or charge set out in the certificate, and
(b) that the cost, expense, loss, damages or charge was made necessary or caused by the unauthorized removal or moving of topsoil, the improper manner of removal of topsoil or the failure or refusal to rehabilitate a site or parcel or carry out other remedial action in relation to the site or parcel from which the topsoil was removed or moved or other failure or refusal to comply with the Act or the regulations to which the action relates.
1995, c.T-7.1, s.12; 2023, c.17, s.268
GENERAL
Service
12(1)An order, notice or other document that is to be given to or served on a person under this Act shall be sufficiently given or served
(a) if it is served in the manner in which personal service may be made under the Provincial Offences Procedure Act,
(b) if it is mailed prepaid registered or certified mail to the latest or usual address of that person, or
(c) if it is mailed prepaid registered or certified mail to the latest address of that person reported to the Minister under this Act or the regulations.
12(2)Service by prepaid registered or certified mail shall be deemed to have been effected five days after the date of mailing.
1995, c.T-7.1, s.13
Designation of analyst
13The Minister may designate persons as analysts for the purposes of this Act.
1995, c.T-7.1, s.14
Evidence
14(1)In a prosecution with respect to an offence under this Act or the regulations, a statement purporting to be signed by the Minister that a person does not hold a permit under this Act or the regulations, or a permit, order, notice, certificate, plan or any other document purporting to be signed by the Minister or a certified copy of the document, shall be
(a) received in evidence by any court in the Province without proof of the appointment, authority or signature of the person purporting to have signed it or the person purporting to have certified the copy,
(b) in the absence of evidence to the contrary, proof of the facts stated in the document, copy or statement, and
(c) if the name of the person referred to in the document, copy or statement is that of the accused, proof, in the absence of evidence to the contrary, that the person named in the document, copy or statement is the accused.
14(2)A document, copy or statement referred to in subsection (1) shall not be received in evidence unless the party intending to produce it has, before the trial or other proceedings, given to the person against whom it is to be produced reasonable notice of the party’s intention, together with a copy of the document, copy or statement.
14(3)Subject to subsection 15(2), a person against whom a document, copy or statement referred to in subsection (1) is produced may, with leave of the court, require the attendance of a person designated by the Minister for purposes of cross-examination.
1995, c.T-7.1, s.15
Certificate of analyst
15(1)Subject to this section, a certificate of an analyst stating that the analyst has analyzed or examined a sample submitted to the analyst by an inspector and stating the result of the analyst’s analysis or examination is admissible in evidence in a prosecution with respect to an offence under this Act or the regulations and, in the absence of evidence to the contrary, is proof of the statements contained in the certificate without proof of the appointment, authority or signature of the person purporting to have signed the certificate.
15(2)The party against whom a certificate of an analyst is produced under subsection (1) may, with leave of the court, require the attendance of the analyst for purposes of cross-examination.
15(3)A certificate shall not be received in evidence under subsection (1) unless the party intending to produce it has given reasonable notice of the intention, together with a copy of the certificate, to the party against whom it is intended to be produced.
1995, c.T-7.1, s.16
Immunity
16No action lies against the Minister, any inspector or any other persons acting on behalf of the Minister in relation to any act authorized under this Act or the regulations, any act performed in conformity with an order of the Minister or a court made under or in relation to this Act or the regulations or any act performed in good faith that the person performing it believed to be authorized under such an order or under this Act or the regulations.
1995, c.T-7.1, s.17
OFFENCES AND PENALTIES
Offences and penalties
17(1)A person commits an offence punishable under Part 2 of the Provincial Offences Procedure Act as a category F offence if the person
(a) violates or fails to comply with section 2, or
(b) fails or refuses to comply with any order of the Minister in whole or in part.
17(2)A person who violates or fails to comply with section 5 or paragraph 6(a), (b), (c) or (d) commits an offence punishable under Part 2 of the Provincial Offences Procedure Act as a category E offence.
17(3)A person who violates or fails to comply with section 3 commits an offence punishable under Part 2 of the Provincial Offences Procedure Act as a category C offence.
17(4)Subject to subsection (5), a person who violates or fails to comply with any provision of the regulations commits an offence punishable under Part 2 of the Provincial Offences Procedure Act as a category B offence.
17(5)A person who violates or fails to comply with a provision of the regulations in respect of which a category has been prescribed under paragraph 23(t) commits an offence of the category prescribed by regulation.
1995, c.T-7.1, s.18, s.19
Absolute liability offence
18Every person other than an individual who commits an offence under this Act or the regulations commits an absolute liability offence.
1995, c.T-7.1, s.20
Limitation period
19Proceedings with respect to an offence under this Act or the regulations may be instituted at any time within two years after the time when the subject matter of the proceedings arose.
1995, c.T-7.1, s.21
Restraining action by Minister
20If any provision of this Act or the regulations or an order made or permit issued by the Minister is contravened, in addition to any other remedy and to any penalty imposed by law, the contravention may be restrained in an action at the instance of the Minister.
1995, c.T-7.1, s.22
ADMINISTRATION
Administration
21The Minister is responsible for the administration of this Act and may designate one or more persons to act on the Minister’s behalf.
1995, c.T-7.1, s.23
Permit
22When a permit is required under this Act or the regulations, the Minister may issue, refuse to issue, transfer, suspend, cancel or reinstate the permit in accordance with the regulations.
1995, c.T-7.1, s.24
REGULATIONS
Regulations
23The Lieutenant-Governor in Council may make regulations
(a) respecting the issue, transfer, suspension, cancellation and reinstatement of permits;
(b) respecting terms and conditions on which permits may be issued, transferred, held and reinstated, which terms and conditions may vary for different persons or classes of persons;
(c) authorizing the Minister to impose such terms and conditions as the Minister sees fit on the issuance, transfer or reinstatement of a permit in addition to any terms and conditions set by regulation, which terms and conditions may vary for different persons or classes of persons;
(d) respecting the grounds on which a permit may be refused, suspended or cancelled;
(e) exempting any person or class of persons from the requirement to obtain a permit;
(f) exempting any person or class of persons from the application of this Act or the regulations or any provision of this Act or the regulations;
(g) respecting fees to be paid on the application for and on the transfer or reinstatement of permits;
(h) respecting the removal of topsoil from a site or the moving of topsoil from a parcel;
(i) respecting the transportation of topsoil in, on or by vehicles on a highway;
(j) respecting the rehabilitation of sites or parcels from which topsoil has been removed or moved;
(k) respecting the records to be kept, the returns to be made and the information to be given by an owner of a site or parcel or permit holder, or both, with respect to the removal or moving of topsoil;
(l) respecting the responsibility for and the payment and recovery of any cost, expense, loss, damages or charge incurred by the Minister or any person, including the cost, expense, loss, damages or charge incurred for all persons, materials and equipment employed and for repairing any damage done, to control, prevent, rehabilitate, remedy or investigate any matter or thing coming within this Act or the regulations;
(m) respecting the carriage, conduct and settlement of claims and actions relating to matters coming within this Act and the regulations;
(n) respecting the procedure for the collection of costs, expenses, losses, damages and charges incurred by the Minister while acting under this Act or the regulations;
(o) providing for the appeal of an order or decision made under this Act or the regulations;
(p) respecting the manner of appeal from orders or decisions made under this Act or the regulations;
(q) respecting the duties and powers of inspectors;
(r) respecting the taking of samples, the analysis of substances and materials and the testing and analysis of topsoil;
(s) defining “topsoil” and any other word or expression used in but not defined in this Act for the purposes of this Act, the regulations or both;
(t) prescribing, in respect of offences under the regulations, categories of offences for the purposes of Part 2 of the Provincial Offences Procedure Act;
(u) respecting forms for the purposes of this Act and the regulations;
(v) respecting any matter necessary or advisable to carry out effectively the intent and purposes of this Act.
1995, c.T-7.1, s.25
N.B. This Act was proclaimed and came into force September 1, 2011.
N.B. This Act is consolidated to June 16, 2023.