First Session, 48th

General Assembly

65 Elizabeth II,

BILL 63

AN ACT TO AMEND THE LANDS ACT

Received and Read the First Time .................................................................................................

Second Reading .................................................................................................................................

Committee ..........................................................................................................................................

Third Reading .....................................................................................................................................

Royal Assent ......................................................................................................................................

HONOURABLE EDDIE

JOYCE

Minister of

Municipal Affairs

Ordered to be printed by

the Honourable House of Assembly

EXPLANATORY NOTES

This Bill would amend the Lands Act to

update the definition of the

word "surveyor";

increase the size of the area

of Crown lands which the minister may grant without the approval of the Lieutenant-Governor

in Council;

require all new shoreline

reservations to be 15 metres wide or greater;

modify the circumstances under

which a grant, lease or licence relating to a shoreline reservation may be

issued;

change the process for an

application for a grant, lease or licence of Crown lands;

remove the requirement for an

order reserving Crown lands to be published in the Gazette ;

change the circumstances under

which a free grant of Crown lands may be issued;

reduce the time permitted for

an extension to register the plan of a survey;

allow the minister in all

circumstances to rectify, without the approval of the Lieutenant-Governor in

Council, an error that resulted in inconsistent grants, leases or licences

being issued for the same Crown lands;

allow the minister to waive a

condition contained in a grant of Crown lands up to 30 hectares;

consolidate the unauthorized

uses of Crown lands under this Act;

expand what is considered an

unauthorized structure;

reduce the amount of time a

person is given to remove an unauthorized structure on Crown lands;

allow the minister to remove,

demolish or dispose of an unauthorized structure without notice where it is a

hazard to public health or safety;

clarify a provision respecting

adverse possession;

narrow the list of persons who

require the consent of the Lieutenant-Governor in Council to acquire Crown

lands;

increase the size of the area

of Crown lands which may be transferred to the Crown in right of Canada without

the approval of the Lieutenant-Governor in Council;

remove the requirement for

approval by the Lieutenant-Governor in Council when Crown lands are transferred

to another minister;

remove the requirement for

notice to be given to the occupier of lands where a surveyor or a person

installing control survey markers intends to enter those lands;

add provisions with respect to

the collection of debt;

add a requirement to review the

Act and the regulations every 5 years; and

change the requirements for

notice in various sections of the Act.

A BILL

AN ACT TO AMEND THE LANDS ACT

Analysis

S.2 Amdt.

Definitions

S.4 R&S

Grants of Crown lands

S.7 R&S

Reservation of shoreline

S.8 Amdt.

Reservation of Crown lands

5. S.9 Amdt.

Free grants

S.10 Amdt.

Survey and registration of plan

7. S.11 Amdt.

Report of adverse claim

S.18 Amdt.

Inconsistent grants

S.20 Amdt.

Waiver of conditions

S.28 R&S

Boundaries

S.29.1 Added

Unauthorized use of Crown lands

Ss.30 to 33 R&S

30. Court order

31. Offence

32. Removal of structure

33. Stop order

13. S.35 Amdt.

Where order not obeyed

S.36 Amdt.

Adverse possession abolished

S.37 R&S

Copies of grants, etc.

S.40 R&S

Conflict of interest

17. S.41 R&S

41. Lieutenant-Governor

in Council regulations

41.1 Ministerial regulations

S.45 Amdt.

Minister to issue notice

S.49 Rep.

Subsequent claim

S.52.1 Added

Regulations

S.53 Amdt.

Transfer to Canada

S.54 R&S

Transfer of land to other ministers

S.64 Amdt.

Entry on land

Part VI.1 Added

PART

VI.1

GENERAL

73.1 Collection of

debt

73.2 Statutory

review

Transitional

Be it enacted by the Lieutenant-Governor and

House of Assembly in Legislative Session convened, as follows:

SNL1991 c36

as amended

1. Paragraph 2(

i) of the Lands Act is repealed and

the following substituted:

(i) "surveyor" means a surveyor who is a

registered member of the Association of Newfoundland Land Surveyors of the Province of Newfoundland under the Land Surveyors Act, 1991 .

Section 4 of the Act is repealed and the

following substituted:

Grants of Crown

lands

(1) The

minister may issue a grant to a person of an area of Crown lands not exceeding

the consideration that the minister may set out in the grant.

(2) The minister may, subject to the approval of

the Lieutenant-Governor in Council, issue a grant to a person of an area of

subject to the payment of the consideration that the minister may set out in

the grant.

Section 7 of the Act is repealed and the

following substituted:

Reservation of

shoreline

(1) Where

Crown lands that border on a lake, pond, river, the seashore or foreshore are

granted, leased or licensed under this Part, it is considered, in the absence

of an express grant, lease or licence of those Crown lands, that a strip of

Crown lands not less than 15 metres wide around and adjoining the lake, pond,

seashore or foreshore or along each bank of the river was not intended to pass

and did not pass to the grantee, lessee or licensee.

(2) A grant, lease or licence of a strip of Crown

lands around and adjoining a lake, pond, seashore or foreshore or along each

bank of a river that is otherwise reserved under subsection (1) may be issued by

the minister under the following circumstances:

(

a) where an applicant demonstrates that a grant,

lease or licence of the land is necessary for the purpose of an industrial

undertaking and the grant, lease or licence would not cause undue injury to the

rights of others;

(

b) to enable a person to carry on aquaculture;

(

c) where a structure that is being used as a residence

and was erected before the coming into force of this

section intrudes on the

reservation, to the extent of the intrusion only; and

(

d) for the purpose of giving a licence only for

the construction of boat houses, wharves, slipways, airplane hangers, recreational

trails or other structures for recreational purposes prescribed by the minister

to the extent that they intrude on the reservation.

(3) A grant, lease or licence under subsection

(2) does not convey exclusive hunting or fishing rights, except as provided by the Aquaculture Act , to the grantee, lessee or licensee.

(4) A grant, lease or licence issued under paragraph

(2)(

c) or (

d) shall not permit a grantee, lessee or licensee to restrict access

to the reservation on the part of the general public by erecting a fence or by

other means.

(5) The department shall publish the following

information with respect to an application made under this

section on its website

within 5 days of the date the application is received:

(

a) the exception under which the application is

being made;

(

b) a description of the lands in respect of which

the application is being made; and

(

c) notice that a person who wishes to object to

the application must file the objection with reasons for it with the minister

within 30 days from the date the notice is posted on the department's website.

(6) An applicant for a grant, lease or licence under

subsection (2) shall publish a notice of his or her application

(

a) in the

Gazette within 21 days of submitting his or her application; and

(

b) in any other location the minister considers

necessary.

(7) The notice required by subsection (6) shall state

the information listed in subsection (5) and any other information prescribed by

the minister.

(8) The minister may include in a grant, lease or

necessary.

(9) An application under this

section is not

required where a person makes an application for a grant under subsection 36(3)

or 36(4) in respect of lands which include a strip of Crown lands around and

adjoining a lake, pond, seashore or foreshore or along each bank of a river

that is otherwise reserved under subsection (1).

4. Subsections 8(3) and (4) of the Act are

repealed.

5. (1) Subsection 9(1) of the Act is repealed

and the following substituted:

Free grants

(1) The

minister may grant, free of charge, but subject to the payment of an

appropriate administration fee, an area of Crown lands not exceeding 10

hectares for the site of

(

a) a school; or

(

b) an undertaking by a city or a municipality as

those terms are defined in the Municipalities

Act, 1999 which is in the public interest other than economic development.

(2) Section 9 of the Act is amended by adding

immediately after subsection (2) the following:

(3) In this section, "school" means a

school other than a private school as defined in the Schools Act, 1997 .

6. Subsection 10(3) of the Act is repealed and the

following substituted:

(3) Notwithstanding subsections (1) and (2), the

minister may, on receipt of a request in writing made by an applicant or a

person acting on behalf of the applicant before the expiry of the 12 month period

immediately following the date of approval of the application, extend the time

for registering the plan of the survey to a maximum of 18 months from the date

of approval of the application.

7. Subsection 11(1) of the Act is repealed and the

following substituted:

Report of adverse

claim

(1) A

surveyor who is authorized to carry out a survey of Crown lands for the

purposes of this Part shall fully investigate whether there exists an adverse

claim with respect to the lands.

8. Subsections 18(2) and (3) of the Act are

repealed and the following substituted:

(2) Where

(

a) through error, more than one grant, lease or

licence inconsistent with each other has been issued for the same Crown lands;

and

(

b) the Crown lands have passed from the original

grantee, lessee or licensee or have been improved before the discovery of the

error

the minister may, in substitution, assign

lands or grant a certificate entitling a person to acquire Crown lands of a

value and to an extent that the minister considers just and equitable under the

circumstances.

9. Subsections 20(1) and (2) of the Act are

repealed and the following substituted:

Waiver of conditions

(1) The

minister may waive a condition contained in a grant of Crown lands issued under

this Part or a previous Act where the area of land involved does not exceed 30

hectares.

(2) The Lieutenant-Governor in Council may waive a

condition contained in a grant of Crown lands issued under this or a previous

Act where the area of land involved is in excess of 30 hectares.

Section 28 of the Act is repealed and the

following substituted:

Boundaries

(1) The

holders of lands whether or not the lands are held under an assurance from the

Crown shall, at all times, either keep up or maintain boundary markers at all

corners and angles of the lands held by them and keep the boundary lines

through the woods connecting all the corners and angles open and clear to a

width of at least one metre.

(2) The absence of a boundary marker shall,

subject to an existing law relating to trespass by cattle, be a good defence in

an action of trespass brought or taken by the holder of the lands.

(3) The minister may order a survey of the lands

referred to in subsection (1) where the minister is satisfied that the boundary

markers which marked the boundaries of the original survey of the lands are no

longer in existence, or where in the opinion of the minister it is necessary or

desirable to make a survey.

(4) Where, in the opinion of the minister, a

survey under subsection (3) is necessary because of the failure of a holder to

comply with subsection (1), the minister may require the holder to bear the cost

of that survey, and may sue for it as if it were a debt due the Crown by the

holder.

(5) In this section, "boundary marker"

means a fence, post, mound, monument, line, iron bar or pin.

11. The Act is amended by adding immediately after

section 29 the following:

Unauthorized use

of Crown lands

29.1

(1) A

person shall not

(

a) refuse or neglect to vacate or abandon

possession of Crown lands where that person lawfully entered into possession or

occupation of the Crown lands and forfeited the right to possession or

occupancy;

(

b) be in possession of Crown lands except in

accordance with this Part or another Act permitting occupation or possession of

Crown lands for the purposes of that Act;

(

c) enclose, mark off or take possession of Crown

lands except in accordance with this Part or another Act permitting occupation

or possession of Crown lands for the purposes of that Act;

(

d) place, erect or build a structure on Crown

lands in respect of which there is not in effect a grant, lease or licence

issued under this Part or place, erect or build a structure on Crown lands for

which he or she is not the holder of a grant, lease or licence in effect under

this Part; or

(

e) clear Crown lands or build a road on Crown

lands in respect of which there is not

in effect a grant, lease or licence issued under this Part.

(2) In this section, "structure"

includes a building, house, cottage, cabin, wharf, dock, boathouse, slipway,

tent platform, shelter, enclosure, wall, fence, barrier, gate, trailer, bus,

mobile home or other motor vehicle converted for the purpose of habitation,

natural or other objects arranged by a person to create a structure, the

materials that may be used to place, erect or build a structure and the

contents of a structure.

12. Sections 30 to 33 of the Act are repealed and

the following substituted:

Court order

30. Where

a person contravenes paragraph 29.1(1)(

a) or (b), the minister may apply to a

judge for, and the judge, upon proof to his or her satisfaction that the lands

were so forfeited and should properly revert to the Crown, or that the person

is in possession of Crown lands except in accordance with this Part or another

Act permitting occupation or possession of Crown lands for the purposes of that

Act, shall order the grantee, lessee, licensee or person in possession, to

deliver up the lands to the Crown and to restore the lands to a condition

satisfactory to the minister.

Offence

(1) A

person who contravenes paragraph 29.1(1)(

c) is guilty of an offence and is

liable on

summary conviction to a fine of not less than $1,000 or to a term of

imprisonment not exceeding 3 months or to both the fine and imprisonment.

(2) An information or complaint with respect to an

offence committed under subsection (1) may be laid or made on or before a day

12 months from the day when the offence first came to the notice of the

minister.

Removal of structure

(1) Where

a structure is placed, erected or built on Crown lands in contravention of

paragraph 29.1(1)(d), the minister may, by written notice, require the person

who placed, erected, built, occupies or uses the structure to do one or more of

the following within 30 days after service of the notice upon the person:

(

a) remove the structure from the Crown lands;

(

b) demolish the structure;

(

c) otherwise dispose of the structure; or

(

d) restore the Crown lands to a condition

satisfactory to the minister.

(2) Notwithstanding subsection (1), the minister

may remove, demolish or otherwise dispose of a structure on Crown lands

(

a) in respect of which there is not in effect a

grant, lease or licence issued under this Part; or

(

b) that was placed, erected or built on Crown

lands by a person who is not the holder of a grant, lease or licence issued

under this Part,

and restore the Crown lands to a condition

satisfactory to the minister without notice under subsection (1) where the

structure is a hazard to public health or safety.

(3) A notice referred to in subsection (1) may be

served on the person to whom it is addressed by delivering it to the person or

by leaving it at the person's last or most usual place of residence with a

person present there at the time.

(4) Where the identity of the person to whom a

notice referred to in subsection (1) is directed is not known or the person

cannot be found, the minister may post the notice with respect to the structure

on the structure and may publish it in a newspaper having general circulation

in the area in which the lands are located.

(5) A person upon whom a notice under subsection

(1) has been served who fails to remove, demolish or otherwise dispose of the

structure or restore the Crown lands to a condition satisfactory to the minister

within 30 days of service of the notice is liable on

summary conviction to a

penalty of $25 for each day that the structure remains on the Crown lands.

(6) Where a notice referred to in subsection (1) has

been served, posted or published and the structure has not been removed, demolished

or otherwise disposed of or the Crown lands have not been restored to a condition

satisfactory to the minister within 30 days of the service, posting or

publishing, the minister or a person acting under the authority of the minister

may do one or more of the following:

(

a) remove the structure from the Crown lands;

(

b) demolish the structure;

(

c) otherwise dispose of the structure; or

(

d) restore the Crown lands to a condition

satisfactory to the minister.

(7) Where a structure is removed, demolished or

otherwise disposed of or the Crown lands are restored to a condition satisfactory

to the minister under subsection (2) or (6), the costs and expenses of the removal,

demolition, disposition and restoration may be recovered by the minister as a

debt due the Crown against the person who placed, erected, built, maintained,

occupied or used the structure.

(8) The minister may, upon application by a person

who claims to be the owner of the structure made before the expiry of the time

period provided in this section, extend the period for compliance with this

section to a period not to exceed 6 months.

Stop order

(1) Where

lands are being cleared or a road or structure is being placed, erected or

built on lands in contravention of paragraph 29.1(1)(

d) or (

e) and the minister

is of the opinion that the lands are Crown lands, the minister may order the

person responsible to stop clearing, placing, erecting, building or depositing

materials and to restore the lands to a condition satisfactory to the minister.

(2) An order made under this

section shall be

signed by the minister and shall be served on the person to whom it is addressed

either personally or by certified mail or, where the person engaged in clearing,

placing, erecting, building or depositing the materials is not known, by

posting a notice on the lands in question.

13. Subsection 35(1) of the Act is repealed and the

following substituted:

Where order not

obeyed

(1) Where

an order made under

section 33 is not complied with within the time set out in

the order, and a period of 14 days has passed from the time of service or

posting of the notice and an appeal has not been commenced, heard or otherwise

disposed of under

section 34, the minister may carry out the restoration

ordered and the cost of the restoration may be recovered by the Crown as a debt

from the person on whom the order was served.

14. (1) Subsection 36(2) of the Act is

repealed and the following substituted:

(2) The period of possession of Crown lands prior

to January 1, 1977, which would, by the application of the law pertaining to

the acquisition of an interest in land based upon open, notorious and exclusive

possession existing prior to the enactment of this section, have been necessary

to confer upon a person an interest in that land is considered to be, and

always to have been, 20 continuous years immediately prior to January 1, 1977.

(2) Subsection 36(4) of the Act is repealed and

the following substituted:

(4) Where the Crown lands affected by this

section

contain 30 hectares or less, the minister may issue a grant, upon being

satisfied that

(

a) a person has acquired an interest in Crown

lands under subsection (2); and

(

b) the lands have been in continuous use for

agricultural, business or residential purposes or for a purpose referred to in

section 9 for a 20 year period immediately prior to January 1, 1977,

and the grant may be issued subject to

those charges, exceptions or qualifications that the minister may decide.

Section 37 of the Act is repealed and the

following substituted:

Copies of grants,

etc.

(1) Duplicates

of all grants, leases, licences or easements and copies of surveys shall be

kept and recorded in the division.

(2) The records referred to in subsection

(1) shall be open to the inspection of the public in a format acceptable to the

minister, during normal business hours, upon the payment of a fee set by the

minister.

(3) A person may obtain a copy of a grant, lease,

licence or easement kept in the division upon the payment of a fee set by the

minister.

Section 40 of the Act is repealed and the

following substituted:

Conflict of

interest

(1) Except

with the consent of the Lieutenant-Governor in Council, the following persons

shall not acquire, either alone or with another, a grant, lease, licence or

easement under this Part:

(

a) a deputy minister of the department;

(

b) an assistant deputy minister of the department;

(

c) an employee responsible for communications for

the department;

(

d) an employee of the Lands Branch of the

department; and

(

e) a spouse or cohabiting partner.

(2) In this section,

(a) "cohabiting partner" means a person

who cohabits in a conjugal relationship outside of marriage with a person referred

to in paragraph (1)(a), (b), (

c) or (d); and

(b) "spouse" means a person who is

married to a person referred to in paragraph (1)(a), (b), (

c) or (d).

Section 41 of the Act is repealed and the

following substituted:

Lieutenant-Governor

in Council regulations

41. The

Lieutenant-Governor in Council may make regulations

(

a) respecting lands reserved under

section 8

including the uses to which those lands may be put and the conditions under

which those lands may be used; and

(

b) generally for the giving of effect to the purpose

of this Part.

Ministerial regulations

41.1 The

minister may make regulations

(

a) setting out the structures for recreational

purposes for which a grant, lease or licence may be issued under paragraph

7(2)(d);

(

b) setting out the other information required under

subsection 7(7); and

(

c) generally for the giving of effect to the

purpose of this Part.

18. Subsection 45(3) of the Act is repealed and the

following substituted:

(3) A notice under this

section shall be published

in the Gazette within the period

fixed for filing claims and in any other location prescribed by the minister.

Section 49 of the Act is repealed.

20. The Act is amended by adding immediately after

section 52 the following:

Regulations

52.1 The

minister may make regulations

(

a) directing other locations for the publication

of notices under subsection 45(3);

(

b) setting the deposit required under

section 50;

and

(

c) generally for the giving of effect to the

purpose of this Part.

21. Subsection 53(2) of the Act is repealed and the

following substituted:

(2) Where the Crown lands that may be transferred

under subsection (1) contain not more than 30 hectares, the minister may, by order,

transfer those lands, either forever or for a lesser term, to the Crown in

right of Canada, subject to those conditions, restrictions or limitations that

the minister considers advisable and, for the purposes of this section, the

order has the same effect as an order of the Lieutenant-Governor in

Council.

Section 54 of the Act is repealed and the

following substituted:

Transfer of land

to other ministers

54. The

minister may by order transfer, either forever or for a lesser term, to another

minister of the Crown specified in the order, the administration and control of

the entire or a lesser interest of the Crown in an area of Crown lands, and the

transfer may be made subject to those conditions, restrictions or limitations

that the minister considers advisable.

23. Subsection 64(11) of the Act is repealed.

24. The Act is amended by adding immediately after

section 73 the following:

PART VI.1

General

Collection of

debt

73.1

(1) Where

there is a debt owed to the Crown under this Act, the minister may issue a

certificate stating the amount due and remaining unpaid to the Crown and the

name of the person by whom it is payable, and file the certificate with the court.

(2) When a certificate is filed with the court under

subsection (1) it is of the same effect and all proceedings may be taken on the

certificate as if it were a judgment of the court for the recovery of the

amount stated in the certificate against the person named in the certificate.

(3) A person named in the certificate filed under

this

section may, within 30 days after the certificate is filed, apply to a

judge for a review, on a question of law or jurisdiction, of the certificate.

(4) On application under subsection (3), the judge

may make an amendment to the certificate that is necessary to make the

certificate accord with the judge's decision.

(5) There is no appeal from a decision of a judge

made under this section.

(6) A certificate filed under this

section may

also be filed in the judgement enforcement registry on the expiration of the 30

day period referred to in subsection (3) in accordance with

Part III of the Judgment Enforcement Act and be enforced

in accordance with that Act.

Statutory review

73.2 The

minister shall, every 5 years, conduct a review of this Act and the regulations

and consider the areas which may be improved.

Transitional

(1) Where an application was submitted for

a grant involving an area of Crown lands that exceeds 20 hectares but does not

exceed 30 hectares under

section 4 of the Lands

Act and the approval of the Lieutenant-Governor in Council was not provided

before the coming into force of this Act, the minister may issue a grant

without the approval of the Lieutenant-Governor in Council.

(2) Where a person has been issued a grant, lease

or licence before the coming into force of this Act which provides that the strip

of Crown lands around and adjoining a lake, pond, seashore or foreshore or

along the bank of the river is less than 15 metres wide, that grant, lease or

licence continues to be valid.

(3) Where a person published a notice of his or

her intended application in the Gazette

under

section 7 of the Lands Act before

the coming into force of this Act, that person is not required to publish a

further notice in the Gazette when his

or her application is received by the department.

(4) Where an application was submitted for a

grant, lease or licence under

section 7 of the Lands Act and it was not determined by the Lieutenant-Governor in

Council before the coming into force of this Act, that application shall be

determined by the minister as though it were submitted after the coming into

force of this Act.

(5) Where an application was submitted for a grant

for the site of a church or cemetery under

section 9 of the Lands Act before the coming into force

of this Act, that application shall be determined as though this Act were not

in force.

(6) Where the time to register the plan of a

survey was extended by the minister under subsection 10(3) of the Lands Act before the coming into force

of this Act, that extension continues to be valid as though this Act were not

in force.

(7) Where an error was discovered involving an

area of Crown lands in excess of 20 hectares under

section 18 of the Lands Act and the approval of the

Lieutenant-Governor in Council was not provided before the coming into force of

this Act, the minister may assign lands or grant a certificate without the

approval of the Lieutenant-Governor in Council.

(8) Where an application was submitted to waive a

condition involving an area of Crown lands that exceeds 20 hectares but does

not exceed 30 hectares under

section 20 of the Lands Act and that application was not determined by the

Lieutenant-Governor in Council before the coming into force of this Act, that

application shall be determined by the minister.

(9) Where a notice was issued under subsection

32(1) of the Lands Act before the

coming into force of this Act, the time for complying with that notice shall

continue to be 60 days from the date of the notice.

(10) Where an application was submitted for a grant

involving an area of Crown lands that exceeds 20 hectares but does not exceed

30 hectares under

section 36 of the Lands

Act and that application was not determined by the Lieutenant-Governor in

Council before the coming into force of this Act, that application shall be determined

by the minister.

(11) Where an application was submitted to transfer

the administration and control of the interest in Crown lands to the Crown in

right of Canada involving an area of Crown lands that exceeds 20 hectares but

does not exceed 30 hectares under

section 53 of the Lands Act and the approval of the Lieutenant-Governor in Council

was not provided before the coming into force of this Act, the minister may

transfer the Crown lands without the approval of the Lieutenant-Governor in Council.

(12) Where an application was submitted to transfer

the administration and control of the interest in Crown lands to another minister

of the Crown involving an area of Crown lands that exceeds 20 hectares under

section 54 of the Lands Act and the approval

of the Lieutenant-Governor in Council was not provided before the coming into

force of this Act, the minister may transfer the Crown lands without the approval

of the Lieutenant-Governor in Council.

(13) Where

an application was submitted by the spouse or cohabiting partner of a person

employed with the department to acquire a grant, lease, licence or easement under

the Lands Act and that application

was not determined before the coming into force of this Act, that spouse or

cohabiting partner may be issued the grant, lease, licence or easement without

the consent of the Lieutenant-Governor in Council as though

section 16 of this

Act were not in force.

Queen's Printer