Acts and Regulations

2013, c.35 - Marshland Infrastructure Maintenance Act

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Current to 1 January 2024
CHAPTER 2013, c.35
Marshland Infrastructure Maintenance Act
Assented to June 21, 2013
Her Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:
Definitions
1The following definitions apply in this Act.
“arbitral tribunal” means a sole arbitrator or a panel of three arbitrators.(tribunal d’arbitrage)
“engineer” means an engineer as defined under the Engineering and Geoscientist Professionals Act. (ingénieur)
“marshland” means land lying on the sea coast or on the bank of a tidal river that is below the level of the highest tide and is protected by marshland infrastructure. (terrain marécageux)
“marshland infrastructure” includes dykes, aboiteaux, dams and dam control buildings, breakwaters, canals, ditches, drains, roads, culverts, bridges, fencing, crossings and other structures, excavations and facilities for the improvement, development, maintenance or protection of marshland that are owned, controlled or managed by the Department of Transportation and Infrastructure. (infrastructure pour terrain marécageux)
“Minister” means the Minister of Transportation and Infrastructure and includes any person designated by the Minister to act on behalf of the Minister.(ministre)
2016, c.6, s.1; 2022, c.27, s.1
Application of the Act
2The Minister is responsible for the administration of this Act and may designate one or more persons to act on the Minister’s behalf.
Power of Minister respecting marshland infrastructure
3If, in the opinion of the Minister, it is in the interest of the Province, the Minister may construct, reconstruct, relocate, recondition, repair, maintain, operate or decommission a marshland infrastructure.
2022, c.27, s.2
Agreements of Minister respecting marshland infrastructure
4The Minister may enter into an agreement with Canada or any person to fund, construct, reconstruct, relocate, recondition, repair, maintain, operate or decommission a marshland infrastructure.
2022, c.27, s.3
Power of entry
5(1)In the discharge of his or her duties under this Act, the Minister or a person authorized by the Minister may enter on and pass through private property without the consent of the owner without being liable for trespass.
5(2)Except in a situation prescribed by regulation, when acting under subsection (1), the Minister shall provide notice to the owner or occupier of the private land in the form and manner prescribed by regulation and with the content prescribed by regulation.
Location of marshlands and marshland infrastructure
6Maps indicating the location of marshlands and marshland infrastructure shall be available for viewing by the public at the Minister’s office in Fredericton and at the Moncton regional office of the Department of Transportation and Infrastructure during normal business hours and shall be published on the Internet.
2016, c.6, s.2
Publication in The Royal Gazette
7The maps referred to in section 6 shall be published in The Royal Gazette on the coming into force of this Act and any change to a map shall be published in The Royal Gazette at least 30 days before the coming into force of the change.
Prohibition
8(1)Subject to subsection (2), no person shall cause damage to or alter a marshland infrastructure.
8(2)If the marshland infrastructure is an aboiteau, dike, dam or dam control building, no person shall
(a) cause damage to or alter the aboiteau, dike, dam or dam control building so that, in the opinion of an engineer, it could endanger the structural reliability of the aboiteau, dike, dam or dam control building, as the case may be, or
(b) otherwise cause damage to or alter the aboiteau, dike, dam or dam control building, as the case may be.
Ministerial Order
9(1)Subject to subsection (2), if the Minister is satisfied that a marshland infrastructure has been damaged or altered, the Minister may issue a Ministerial Order requiring the person to whom it is directed to repair or restore the marshland infrastructure to the condition it was in before it was damaged or altered, to the extent practicable, in accordance with the directions set out in the order.
9(2)If the Minister is satisfied that a marshland infrastructure that is an aboiteau, dike, dam or dam control building has been damaged or altered so that, in the opinion of an engineer, it could endanger the structural reliability of the aboiteau, dike, dam or dam control building, as the case may be, the Minister may issue a Ministerial Order requiring the person to whom it is directed to repair or restore the aboiteau, dike, dam or dam control building, as the case may be, to the condition it was in before it was damaged or altered, to the extent practicable, in accordance with the directions set out in the order.
9(3)A Ministerial Order may include a compliance schedule requiring the completion of specified stages of repair or restoration by specified dates.
9(4)A single Ministerial Order may be directed to one or more persons.
9(5)Except in the case of an emergency, a Ministerial Order, including an amendment to or a revocation of the Ministerial Order, shall be in writing and shall include the reasons for the order.
9(6)When a Ministerial Order is served on a person to whom it is directed, that person shall comply with the order.
9(7)A Ministerial Order remains in effect until revoked by the Minister.
9(8)A Ministerial Order is binding on the heirs, successors, executors, administrators and assigns of the persons to whom it is directed.
9(9)If, in the opinion of the Minister, the action taken under a Ministerial Order is not adequate, the Minister may order the taking of any remedial action the Minister considers necessary.
Non-compliance with Ministerial Order
10If a person to whom a Ministerial Order is directed fails or refuses to comply in whole or in part with the order or part of the order, the Minister may enter on any land or premises, together with the persons, materials and equipment the Minister considers necessary, using the force the Minister considers necessary, and may take any further action the Minister considers necessary to effect compliance with or to carry out the order.
Costs incurred by Minister
11(1)Any cost, charge, loss, damage or expense incurred by the Minister while acting under section 10 shall be the liability of and paid by any person who failed or refused to comply with a Ministerial Order and becomes a debt due to the Crown.
11(2)If two or more persons have failed or refused to comply with a Ministerial Order, those persons are jointly and severally liable under subsection (1).
Recovery of costs by Minister
12(1)If the cost of carrying out work becomes a debt due to the Crown under subsection 11(1), the Minister may issue a certificate stating the amount of the debt due and the name of the debtor.
12(2)A certificate issued under subsection (1) may be filed in The Court of King’s Bench of New Brunswick and entered and recorded in the Court and when entered and recorded may be enforced as a judgment obtained in the Court by the Crown in right of the Province against the person named in the certificate for a debt of the amount specified in the certificate.
12(3)All reasonable costs and charges attendant upon the filing, entering and recording of a certificate under subsection (2) may be recovered as if the amount had been included in the certificate.
2023, c.17, s.150
Service of Ministerial Order
13(1)A Ministerial Order shall be sufficiently served for the purposes of this Act if
(a) it is served in the manner in which personal service may be made under the Provincial Offences Procedure Act, or
(b) it is mailed by registered mail to the latest known address of the person to whom the Ministerial Order is directed.
13(2)Service by registered mail shall be deemed to have been effected four days after the date of mailing.
Proof
14(1)Proof of service of a Ministerial Order in either manner provided for in subsection 13(1) may be made by a certificate or an affidavit purporting to be signed by the Minister, naming the person on whom service was made and specifying the time, place and manner of the service.
14(2)A document that purports to be a certificate or an affidavit of the Minister to the effect that the service was made in the manner provided for in subsection 13(1)
(a) shall be admissible in evidence without proof of the signature, and
(b) is, in the absence of any evidence to the contrary, proof that the person named in the certificate or affidavit was served with the Ministerial Order referred to in the certificate or affidavit.
14(3)In any prosecution for an offence under this Act where proof of the service is made as set out in subsection (1), the burden of proving that one is not the person named or referred to in the certificate or affidavit shall be on the person charged.
14(4)A Ministerial Order served under the provisions of this Act and purporting to be signed by the Minister
(a) shall be admissible in evidence without proof of the signature, and
(b) is, in the absence of any evidence to the contrary, proof of the facts stated in the Ministerial Order.
Land acquired by purchase or expropriation
2022, c.27, s.4
14.1(1)The Minister may acquire land, by purchase or expropriation, for the purposes of a marshland infrastructure.
14.1(2)The Minister shall give written notice to the owner of the land and to the occupier of the land, if any, of the Minister’s intention to purchase land under this section, and the notice shall include
(a) an amount that the Minister considers to be compensation that fairly reflects the value of the owner’s interest in the land, and
(b) any other terms and conditions under which the land is to be purchased that the Minister considers necessary.
14.1(3)If the Minister and the owner of the land have not agreed on the terms and conditions under which the land is to be purchased within 12 months of the Minister giving notice under subsection (2), or at an earlier time when, in the opinion of the Minister, an agreement cannot be reached, the Minister may expropriate as defined in the Expropriation Act and carry out the expropriation in accordance with that Act.
14.1(4)For greater certainty,
(a) an owner who reaches an agreement to sell land to the Minister under this section is entitled to submit a claim for compensation under section 14.11, and
(b) an owner who does not reach an agreement to sell land to the Minister under this section and whose land is expropriated is not be entitled to submit a claim for compensation under section 14.11.
2022, c.27, s.4
Compensation for damages
2022, c.27, s.4
14.11(1)The Minister shall compensate a person for damages suffered by virtue of anything done under this Act.
14.11(2)A person claiming compensation under this Act shall deliver to the Minister a written claim setting out full particulars of the claim and the person’s right and title to the compensation.
2022, c.27, s.4
Arbitration
2022, c.27, s.4
14.2(1)If the Minister does not agree with the compensation claimed under subsection 14.11(2), the Minister shall offer, within 120 days after receiving the claim, the amount that the Minister considers to be reasonable compensation and, at the same time, give notice to the person claiming compensation that the matter of compensation will be submitted to arbitration if the amount of the offer is not accepted within 120 days after the date the person receives the offer.
14.2(2)In determining what is reasonable compensation referred to in subsection (1), the Minister shall consider, among other things, the value of the land having regard to its present use.
14.2(3)If the person claiming compensation does not accept the offer of the Minister within the time referred to in subsection (1), the Minister shall submit the matter of compensation to arbitration and the Minister and the person claiming compensation shall be deemed to have entered into a written arbitration agreement.
2022, c.27, s.4
The Court of King’s Bench may extend time limit
2022, c.27, s.4; 2023, c.17, s.150
14.21On an application by the Minister or a person claiming compensation, The Court of King’s Bench of New Brunswick may extend the time limit under subsection 14.2(1), either before or after the expiry of the time limit.
2022, c.27, s.4; 2023, c.17, s.150
Application of Arbitration Act
2022, c.27, s.4
14.3The Arbitration Act applies to an arbitration under this Act, but, if there is a conflict between a provision of this Act and a provision of the Arbitration Act, the provision of this Act prevails.
2022, c.27, s.4
Exclusive jurisdiction of arbitral tribunal
2022, c.27, s.4
14.4(1)An arbitral tribunal has exclusive jurisdiction to hear and determine all matters of compensation under this Act, and no court shall intervene in the matter of compensation, except
(a) to assist the arbitration process,
(b) to prevent unfair or unequal treatment of a party to an arbitration agreement, and
(c) to enforce awards.
14.4(2)No person shall apply for compensation under Part 2 of the Expropriation Act or any other Act for damages suffered by virtue of anything done under this Act.
2022, c.27, s.4
Appointment of arbitral tribunal
2022, c.27, s.4
14.5(1)Within ten days after the date on which the Minister submits a matter to arbitration, the Minister and the person claiming compensation shall appoint a sole arbitrator.
14.5(2)If the Minister and the person claiming compensation are unable to agree on the appointment of a sole arbitrator within the time period referred to in subsection (1), an arbitral tribunal consisting of three arbitrators shall be appointed as follows:
(a) one by the Minister;
(b) one by the person claiming compensation; and
(c) one by the arbitrators appointed under paragraphs (a) and (b) who shall act as chair of the arbitral tribunal.
14.5(3)The Minister and the person claiming compensation shall each appoint an arbitrator within ten days after the expiry of the time period referred to in subsection (1).
14.5(4)If the Minister or the person claiming compensation fails to appoint an arbitrator within ten days after the expiry of the time period referred to in subsection (1), The Court of King’s Bench of New Brunswick shall appoint an arbitrator on behalf of the Minister or the person, as the case may be.
14.5(5)If the arbitrators appointed under paragraphs (2)(a) and (b) are unable to agree on the appointment of the chair within 20 days after the appointment of the second arbitrator, The Court of King’s Bench of New Brunswick shall appoint the chair on their behalf.
2022, c.27, s.4; 2023, c.17, s.150
Fees and expenses of arbitral tribunal
2022, c.27, s.4
14.6(1)If an arbitral tribunal consists of a sole arbitrator, the Minister is responsible for the fees and expenses of the arbitral tribunal and any other expenses related to the arbitration.
14.6(2)If an arbitral tribunal consists of three arbitrators,
(a) the Minister is responsible for
(i) the fees and expenses of the chair,
(ii) the fees and expenses of the arbitrator appointed by the Minister, and
(iii) any other expenses related to the arbitration, and
(b) the person claiming compensation is responsible for the fees and expenses of the arbitrator appointed by that person.
2022, c.27, s.4
Decision of arbitral tribunal
2022, c.27, s.4
14.7An arbitral tribunal shall make a decision on the matter of compensation within one year after the date on which the Minister submits a matter of compensation to arbitration.
2022, c.27, s.4
Arbitral tribunal may extend the time for making a decision
2022, c.27, s.4
14.8An arbitral tribunal may extend the time for making a decision referred to in section 14.7 before the expiry of the time by giving notice of the extension with reasons to the Minister and to the person claiming compensation.
2022, c.27, s.4
Vesting of land; sale or lease of land
2022, c.27, s.4
14.9All land that is owned by the Department of Transportation and Infrastructure and was acquired for the purposes of a marshland infrastructure is vested in the Crown in right of the Province and, despite section 55 of the Financial Administration Act and any other Act, when the land is no longer required, the Minister, with the approval of the Lieutenant-Governor in Council, may enter into an agreement for the sale or lease of the land and may convey the land by a deed of conveyance, lease or other instrument under the Great Seal of the Province and signed by the Minister, and the proceeds of the sale or leasing shall be accounted for as public money or, on the direction of the Lieutenant-Governor in Council, deposited to the credit of the Land Management Fund established under the Public Works Act.
2022, c.27, s.4
Notification with respect to development on marshland
15If a local government or a regional service commission receives an application for the granting of a building permit with respect to development that is within a marshland that is identified in the maps referred to in section 6, the local government or the regional service commission shall notify the Minister of the application as soon as the circumstances permit.
2017, c.20, s.98; 2020, c.8, s.34
Immunity
16(1)No action for damages or other proceeding shall be taken against the Crown in right of the Province, the Minister or any other person with respect to anything done or purported to be done in good faith or with respect to anything omitted to be done in good faith under this Act.
16(2)No action for damages or other proceeding shall be taken against the Crown in right of the Province for any damages caused by flooding as a result of the failure of a marshland infrastructure.
Advisory committee
17The Minister may establish advisory committees that the Minister considers necessary for the better administration of this Act.
Offences and penalties
18(1)A person who violates or fails to comply with subsection 8(1) or paragraph 8(2)(b)commits an offence punishable under Part 2 of the Provincial Offences Procedure Act as a category F offence.
18(2)A person who violates or fails to comply with paragraph 8(2)(a) commits an offence punishable under Part 2 of the Provincial Offences Procedure Act as a category J offence.
18(3)A person who fails or refuses to comply in whole or in part with a Ministerial Order issued under subsection 9(1) commits an offence punishable under Part 2 of the Provincial Offences Procedure Act as a category F offence.
18(4)A person who fails or refuses to comply in whole or in part with a Ministerial Order issued under subsection 9(2) commits an offence punishable under Part 2 of the Provincial Offences Procedure Act as a category J offence.
Regulations
19The Lieutenant-Governor in Council may make regulations
(a) prescribing the form and content of a notice under section 5, as well as the manner and time of providing the notice;
(b) providing that the form and content of a notice under section 5, as well as the manner and time of providing the notice, may vary in different situations;
(c) prescribing the situations where a notice under section 5 is not required;
(d) defining any word or expression used in but not defined in this Act for the purposes of this Act, the regulations or both;
(e) respecting any matter that the Lieutenant-Governor in Council considers necessary for the administration of this Act.
TRANSITIONAL PROVISIONS, REPEAL AND COMMENCEMENT
Marshland Reclamation Commission
20(1)On the commencement of this section, the Marshland Reclamation Commission established under section 6 of the Marshland Reclamation Act is dissolved.
20(2)The appointments of all persons who hold office as a member of the Marshland Reclamation Commission immediately before the commencement of this section are revoked.
20(3)All contracts, agreements and orders relating to allowances, fees, salaries, expenses, remuneration and compensation to be paid to the members of the Marshland Reclamation Commission dissolved under subsection (1) are null and void.
20(4)Despite the provisions of any contract, agreement or order, no allowance, fee, salary, expenses, remuneration or compensation shall be paid to any member of the Marshland Reclamation Commission dissolved under subsection (1).
20(5)No action, application or other proceeding lies or shall be instituted against the Minister or the Crown in right of the Province as a result of the dissolution of the Marshland Reclamation Commission or the revocation of appointments under subsection (2).
Marsh Body
21(1)On the commencement of this section, any Marsh Body incorporated under section 11 of the Marshland Reclamation Act is dissolved.
21(2)The appointments of all persons who hold office as a member of a Marsh Body immediately before the commencement of this section are revoked.
21(3)All contracts, agreements and orders relating to allowances, fees, salaries, expenses, remuneration and compensation to be paid to the members of a Marsh Body dissolved under subsection (1) are null and void.
21(4)Despite the provisions of any contract, agreement or order, no allowance, fee, salary, expenses, remuneration or compensation shall be paid to any member of a Marsh Body dissolved under subsection (1).
21(5)No action, application or other proceeding lies or shall be instituted against the Minister or the Crown in right of the Province as a result of the dissolution of a Marsh Body or the revocation of appointments under subsection (2).
Repeal of Marshland Reclamation Act and regulation
22(1)The Marshland Reclamation Act, chapter 189 of the Revised Statutes, 2011, is repealed.
22(2)New Brunswick Regulation 82-5 under the Marshland Reclamation Act is repealed.
Commencement
23This Act or any provision of it comes into force on a day or days to be fixed by proclamation.
N.B. This Act was proclaimed and came into force February 1, 2014.
N.B. This Act is consolidated to June 16, 2023.