First Session, 47th

General Assembly

61 Elizabeth II,

BILL 60

AN ACT RESPECTING THE USE AND

EXPROPRIATION OF LAND FOR THE PURPOSE OF THE MUSKRAT FALLS PROJECT

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

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

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

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

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

HONOURABLE JEROME

P. KENNEDY, Q.C.

Minister of Natural

Resources

Ordered to be printed by

the Honourable House of Assembly

EXPLANATORY NOTES

This Bill would enact the Muskrat Falls Project Land Use and Expropriation

Act to advance the implementation of the Muskrat Falls Project.

The Bill would

provide the ability to create a

statutory easement which could be granted, transferred, mortgaged, leased or

otherwise dealt with as real property;

establish a process by which an

expropriating authority may, where land is required for the Muskrat Falls

Project, expropriate that land on behalf of a proponent in accordance with this

Act and an expropriation protocol established in the regulations;

confirm that a holder is liable

for taxation in respect of the Muskrat Falls Project, except in prescribed

circumstances; and

approve the use of land by a proponent

in the transmission corridor and with respect to the transmission lines for the

Muskrat Falls Project, and require that existing and future land use plans and

development regulations conform with the approved land use.

A BILL

AN ACT RESPECTING THE USE AND EXPROPRIATION

OF LAND FOR THE PURPOSE OF THE MUSKRAT FALLS PROJECT

Analysis

Short title

Definitions

Labrador Inuit rights

Crown bound

Act prevails

PART

STATUTORY EASEMENT

Statutory easement created

Application of statutory easement

Effect of registration

Shoreline reservation

Application of s.10, Lands Act

Regulations

PART

EXPROPRIATION

Expropriation

Where expropriation urgent

The Churchill Falls ( Labrador )

Corporation Limited (Lease) Act, 1961

Ascertainment of land to be expropriated

Notice of expropriation

Limited estate required

Rights of mortgagee or lien holder

Effect of error

Where compensation agreed

Vesting of title

Compensation

Registration

Arbitration panel

Arbitration panel may try questions of

law and fact

Leasehold land

Return of land expropriated

Award of arbitration panel to be written

Want of form

Arbitration panel may award costs

Payment of compensation

Claims upon compensation

Payments into trust

Proponent to notify claimants

Trustee to furnish names and addresses

Trustee to pay owner

Where claim is contested

Petition for payment out of court

Notice of application

Adverse claims

Security for costs

Costs

Adjudication

Compensation

Claims barred after 3 years

Compensation becomes property of

proponent

Expropriation protocol

PART

III

MUNICIPAL TAXATION

Definition

Real property tax

Business or commercial tax

Other tax

Taxation of landowner

Order to pay taxes

PART

LAND USE AND PERMITTING

Land use and permitting

Application

Continued non-conforming use

Order

Regulations

PART

GENERAL, CONSEQUENTIAL AND COMMENCEMENT

Fees and forms

SNL2009 cR-10.01 Amdt.

Commencement

Be it enacted by the Lieutenant-Governor and

House of Assembly in Legislative Session convened, as follows:

Short title

1. This

Act may be cited as the Muskrat Falls

Project Land Use and Expropriation Act.

Definitions

2. In

this Act

(a) "arbitration panel" means the

arbitration panel appointed under

section 24 ;

(b) "expropriation protocol" means the

manner of conducting expropriations under this Act as prescribed by the regulations;

(c) "holder" means a proponent of the

Muskrat Falls Project or any subsequent person who has an interest in both a

transmission corridor and the transmission assets associated with it;

(d) "judge", unless the context

otherwise requires, means a judge of the Trial Division;

(e) "land" means real property of every

kind, and includes tenements, hereditaments, and appurtenances, leaseholds, and

an estate, term, easement, statutory easement, right or interest in, to, over,

under or affecting land, including rights-of-way, and waters, water rights,

water powers and water privileges;

(f) "landowner" includes a person, the

Crown or a department of the Crown, a Crown corporation or a Crown agent;

(g) "minister" means the minister or

ministers appointed under the Executive

Council Act to administer this Act or a Part or Parts of this Act;

(h) "municipality" means a municipality

as defined in the Urban and Rural

Planning Act, 2000 ;

(i) " Muskrat Falls

Project" means the Muskrat Falls Project as defined in the Energy Corporation Act;

(j) "proponent" means a proponent of the

Muskrat Falls Project, and includes, whether individually or in combination of

them,

(

i) the corporation established in the Energy Corporation Act , including all

affiliates, subsidiaries, successors and assigns of that corporation, and

(ii) Emera Inc., including all affiliates,

subsidiaries, successors and assigns of that corporation;

(k) "secured creditor" means a person

who has a security interest in the assets of another person or who acts for or

on behalf of that person with respect to the security interest and includes a

receiver or a receiver-manager appointed by a secured creditor or by a court on

the application of the secured creditor, a trustee appointed under a trust deed

relating to a security interest or another person performing a similar function;

(l) "security interest" means an

overriding royalty, a deemed trust or actual trust, assignment or encumbrance

not resulting in a complete transfer of title and beneficial ownership, and an

interest in property that secures payment or performance of an obligation

created by or arising out of a debenture, mortgage, lien, judgment, pledge,

charge and a retention of title, however or wherever arising, considered to

arise or otherwise provided for and whether absolute, contingent, fixed,

floating, perfected or not perfected;

(m) "transmission assets" means

transmission assets contained in, on or attaching to transmission lines for the

Muskrat Falls Project including

(

i) foundations, underground services, subsea

services, erections and structures, whether temporary or permanent, and all

other facilities, fixtures, appurtenances and tangible personal property of any

nature whatsoever contained on or attaching to a transmission line, and

(ii) all mechanical, electrical, communication and

other systems and other technology installed under or upon anything referred to

in subparagraph (i);

(n) "transmission corridor" means the

land over, under or upon a route upon which a transmission line is located, but

does not include land occupied by transmission assets where those transmission assets

are not located upon a transmission route;

(o) "transmission lines" means

(

i) a new HVdc transmission line and all related

components, including electrode sites, grounding stations and converter

stations, constructed or to be constructed between the Muskrat Falls

hydroelectric plant on the Churchill River and Soldiers Pond,

(ii) new transmission lines and all related

components including converter stations, constructed or to be constructed

between the Muskrat Falls hydroelectric plant on the Churchill River and the

generating plant located at Churchill Falls, and

(iii) new transmission lines and all related

components including electrode sites, grounding stations and converter stations,

constructed or to be constructed by Emera Inc. between the island portion of

Newfoundland and Labrador up to and including Cape Breton, Nova Scotia; and

(p) "trustee" means a trustee as defined

in the Trustee Act.

Labrador Inuit

rights

3. This

Act and regulations made under this Act shall be read and applied in

conjunction with the Labrador Inuit Land

Claims Agreement Act and, where a provision of this Act or regulations made

under this Act is inconsistent or conflicts with a provision, term or condition

of the Labrador Inuit Land Claims

Agreement Act , the provision, term or condition of the Labrador Inuit Land Claims Agreement Act shall have precedence over

the provision of this Act or a regulation made under this Act.

Crown bound

4. This

Act binds the Crown.

Act prevails

(1) Except

as otherwise provided in this Act, for the purpose of the Muskrat Falls

Project, this Act shall prevail over another Act of the province, and, in the

case of an inconsistency between this Act and another Act of the province, this

Act prevails.

(2) Section 56 of the Public Utilities Act shall not apply to the Muskrat Falls Project.

PART I

STATUTORY EASEMENT

Statutory

easement created

(1) The

Crown, an agent of the Crown, a municipality or a person may create, in favour

of a holder for a purpose described in subsection (3), an easement without

dominant tenement to be known as a statutory easement.

(2) To the extent necessary to give effect to

subsection (1), the rule requiring an easement to have dominant and servient

tenements is abrogated.

(3) A statutory easement may only be created and

may only be used by a holder for a purpose necessary in connection with an

activity or undertaking involving the Muskrat Falls Project or a part of it.

(4) A statutory easement grants to the holder the

right to construct, maintain, repair and operate, on the land subject to the

statutory easement, transmission lines and transmission assets relating to the

Muskrat Falls Project or a part of it, as well as a right of reasonable access

over adjoining land to the land subject to the statutory easement as may be

required for those purposes.

(5) Notwithstanding subsection (1), where land is

subject to a security interest, a statutory easement shall not be created,

except by expropriation, with respect to that land without the consent of the secured

creditor.

(6) A landowner retains a residual interest in the

land over which a statutory easement is created.

(7) Notwithstanding another provision of this

Part, the creation of a statutory easement does not impede or detrimentally

affect the right of the public or of a person, in accordance with the laws of

the province and in a manner that does not interfere with the use and enjoyment

of the statutory easement holder, to do some or all of the following:

(

a) access lakes, ponds or rivers on land upon

which a statutory easement has been created; and

(

b) access for a recreational purpose, or for

other personal use, land upon which a statutory easement has been created and enter

on to, exit or use the land for that purpose.

(8) Notwithstanding the Provincial Parks Act and the regulations under that Act, a

statutory easement may be granted over land proclaimed to be part of the Newfoundland and Labrador T'Railway Provincial Park, but

where a statutory easement is granted, the Newfoundland and Labrador T'Railway shall be

considered to be an approved use under

section 54 .

Application of

statutory easement

(1) A

statutory easement is an interest in land and shall include any property or

assets located upon, constructed, erected or affixed to the land of the

statutory easement by or on behalf of a holder, and the ownership of that

property or assets shall not vest with the landowner by virtue of being attached

to the land but shall remain with the holder and shall only be transferred upon

transfer by the holder of the statutory easement in accordance with this Part.

(2) A statutory easement created under this Part

may be transferred, leased, have a security interest created or granted with

respect to it or be otherwise dealt with by a holder and the rights to the land

under a statutory easement may be assigned to another holder for a term and in

a manner which leaves the assignor with a reversionary interest in those

rights.

(3) A statutory easement shall only be granted to,

leased or transferred to a holder.

(4) Subsection (3) does not restrict

(

a) the ability of a secured creditor to deal with

a statutory easement upon enforcement of a security interest, but where that

security interest is realized, it may only be transferred to a holder; or

(

b) the ability of a holder to transfer all or

part of a statutory easement to the landowner, and upon that transfer that portion

of the statutory easement transferred shall merge with the landowner's residual

interest.

(5) Upon registration of an instrument creating a

statutory easement, the statutory easement evidenced by it shall be collateral

to the rights of the landowner in the land, and is enforceable against the successors

in title of the landowner.

(6) Notwithstanding the date of creation of a

statutory easement, all statutory easements registered under the authority of

this Act shall expire on January 1, 2075, and the land which was the subject of

the statutory easement shall then be held by the holder in the same manner as

land is held for the purpose of transmission assets and transmission lines at

that time.

Effect of registration

(1) A

statutory easement and an instrument creating a security interest in that

statutory easement may be registered under

section 7 of the Registration of Deeds Act, 2009 .

(2) The minister shall prescribe the form of an

instrument creating a statutory easement, and that instrument shall contain the

following:

(

a) those references to the provisions of this Act

that the minister determines are necessary to ensure notice to third parties;

and

(

b) another provision respecting a statutory

easement required by the Lieutenant-Governor in Council in the regulations.

(3) A landowner who executes an instrument respecting

a statutory easement is not liable for a breach of a covenant in the instrument

occurring after the person has ceased to be the owner of the land.

(4) Where a statutory easement is registered under

this section, that registration constitutes a release of an existing security

interest on the land described in the statutory easement, and no further

release or modification of the security interest is necessary and the validity

of the security interest on other land which is not the subject of the

statutory easement is unaffected.

(5) A landowner shall not subsequently encumber or

create a security interest for any land with respect to which a statutory

easement has been registered, and a security interest on the real property of

the landowner shall not apply to or be binding upon the statutory easement or

the holder of a statutory easement, notwithstanding the landowner's remaining

interest in the land.

Shoreline reservation

(1) Notwithstanding

section 7 of the Lands Act, a

shoreline reservation referred to in subsection 7(1) of that Act shall not

apply to a statutory easement under this Part, and where lands referred to in

that subsection are to be included with a statutory easement, the statutory

easement over those lands does, in fact, pass to the holder.

(2) Notwithstanding subsection (1), a holder shall

make every reasonable effort to ensure that the construction, maintenance,

repair, and operation of the Muskrat Falls Project upon a statutory easement does

not impede public access to and along the land which would, but for subsection

(1), be a shoreline reservation referred to in subsection 7(1) of the Lands Act .

(3) Where a holder does not comply with the

requirements of subsection (2), the holder shall provide alternate public

access to and along lands which would, but for subsection (1), be a shoreline

reservation referred to in subsection 7(1) of the Lands Act to the satisfaction of the minister within 30 days from

the date the impediment occurs, unless the minister is satisfied that the

access cannot reasonably be provided, in which case the holder is not required

to comply with subsection (2).

Application of

s.10, Lands Act

Section

10 of the Lands Act, except

subsection 10(2), applies to lands

which are the subject of a statutory easement under this Part.

Regulations

11. The

Lieutenant-Governor in Council may make regulations respecting

(

a) the provisions required to be contained in an

instrument creating a statutory easement;

(

b) the manner in which a statutory easement may

be assigned; and

(

c) generally, to give effect to this Part.

PART II

EXPROPRIATION

Expropriation

(1) Where

a proponent requires land which, in the opinion of the proponent, is necessary

for the Muskrat Falls Project, the proponent may negotiate with the landowner

for that land, and where

(

a) an agreement is reached, it is valid and

binding on the parties; or

(

b) an agreement cannot be reached, the proponent

may apply to the expropriating authority in accordance with the expropriation

protocol to expropriate the land.

(2) An application under paragraph (1)(

b) shall

contain the information required in the regulations.

(3) The expropriating authority shall review the

proponent's application for expropriation and, where it meets the requirements

of this Part and the expropriation protocol, acquire the land on behalf of the

proponent by expropriation under this Part.

(4) The Lieutenant-Governor in Council shall

designate a minister of the Crown as the expropriating authority for the

purpose of this Part.

(5) An expropriation may be made under subsection

(3) where

(

a) an agreement cannot first be reached on the

amount to be paid for the land or on other terms of the purchase of the land;

(

b) the landowner, after reasonable inquiry, is

not known or cannot be found by the proponent;

(

c) the landowner is incapable of conveying the

land or his or her interest in it; or

(

d) for another reason that the expropriating

authority considers it advisable to expropriate the land.

(6) Land which is acquired under this Part,

whether by negotiation or expropriation, shall not be further acquired or expropriated

under the authority of another Act of the province except

(

a) by the Crown; or

(

b) otherwise, in accordance with this Act.

(7) The Public

Utilities Acquisition of Lands Act does not apply to an expropriation under

this Part.

(8) The

Expropriation Act does not apply to an expropriation under this Part.

(9) Notwithstanding another provision of this

Part, where a family home is to be expropriated for the purpose of the Muskrat

Falls Project, the Family Homes

Expropriation Act shall apply to that expropriation and compensation shall

be determined in accordance with that Act.

Where expropriation

urgent

(1) Where

the Lieutenant-Governor in Council is satisfied on an application by a

proponent that the proponent urgently requires the land for the purpose of the

Muskrat Falls Project, the Lieutenant-Governor in Council may by order direct the

expropriating authority to proceed with an intended expropriation without inquiry.

(2) The Lieutenant-Governor in Council shall, in

the expropriation protocol, prescribe the information required to be provided

to a landowner in respect of an urgent expropriation under this section.

(3) Notwithstanding

section 21 , within 7 days after the information referred to

in subsection (2), including the notice of expropriation, is served or provided,

the title to the land vests in the proponent named in the notice of expropriation.

The Churchill Falls

( Labrador ) Corporation Limited (Lease) Act,

(1) For

the purpose of this section, "Act" means The Churchill Falls ( Labrador )

Corporation Limited (Lease) Act, 1961.

(2) Notwithstanding the Act, the expropriating

authority may, on behalf of a proponent for the purpose of transmission lines

and transmission assets constructed or to be constructed between the Muskrat

Falls hydroelectric plant on the Churchill River and the generating plant

located at Churchill Falls, expropriate in the manner prescribed in this Part, land

leased to the Churchill Falls (Labrador) Corporation Limited under the Act and

the Power Site Lease dated August 1, 1968.

(3) Notwithstanding the Act and the lease referred

to in subsection (2), the arbitration provisions contained in that Act and the lease

do not apply to an expropriation by the expropriating authority referred to in

subsection (2), and the provisions of this Part apply to that expropriation.

(4) A person, including the Churchill Falls ( Labrador ) Corporation Limited, is not entitled to

compensation or damages from the Crown or a proponent arising from, resulting

from or incidental to the operation of this

section except as otherwise

provided in this Part.

(5) An action or proceeding does not lie or shall

not be instituted or continued against the Crown, a proponent or a minister,

employee or agent of the Crown based on a cause of action arising from,

resulting from or incidental to the operation of this

section other than an

action or legal remedy available to a landowner provided in this Part.

Ascertainment of

land to be expropriated

(1) The

proponent may by a person authorized by him or her for the purpose ascertain

and delimit the land to be expropriated, and for that purpose the person so

authorized may enter upon land and do the work necessary in the opinion of that

person to ascertain and measure and obtain or prepare a plan and description of

the land to be expropriated.

(2) The proponent shall compensate the landowner

detrimentally affected by

an act done under this

section and in default of agreement

between the landowner and the proponent, the landowner shall be entitled to

compensation for reasonable incidental damages as set out in this Part and the

expropriation protocol.

Notice of

expropriation

(1) The

expropriating authority intending to expropriate land shall notify the landowner

in the manner prescribed in the expropriation protocol, and the notice shall

contain the information prescribed in that protocol.

(2) Where the landowner is incapable of conveying

the land or cannot be found in the province or is not known to the proponent or

where for another reason personal service cannot be conveniently effected, the proponent

shall post a written notice in a conspicuous place on the land to be

expropriated.

(3) Where a notice of expropriation has been

served on the landowner or posted on the land that is being expropriated, the notice

may require the owner to file a claim for compensation with the expropriating

authority within the time period and in the manner prescribed in the

expropriation protocol, and the expropriating authority may extend that time period

as prescribed in that protocol.

(4) Where the landowner of land being expropriated

is required to file a claim for compensation under subsection (3) and does not

do so within the time fixed or within the further period that is fixed, the

arbitration panel may fix and the proponent shall pay the amount of compensation

to be paid in accordance with the rules for compensation in this Part and in

the expropriation protocol, and the award of the arbitration panel is final.

Limited estate

required

17. Where land expropriated under this

Part is required for a limited

time only or where only a limited estate or right is required, the notice of

expropriation shall indicate that and the compensation payable in respect of

that land shall be fixed accordingly.

Rights of

mortgagee or lien holder

18 .

(1) Where

the land to be expropriated is subject to a security interest and the secured

creditor is known to the expropriating authority, a copy of the notice of

expropriation shall be served on the secured creditor.

(2) Where the claim of a secured creditor has been

proved to the satisfaction of the proponent, the amount secured by the security

interest in respect of land expropriated shall be deducted from the compensation

payable and be paid by the proponent to the secured creditor and the receipt of

the secured creditor is a valid discharge of the proponent for the amount of

the compensation paid in satisfaction of the security interest in respect of

the land expropriated.

(3) An action does not lie against the

expropriating authority or the proponent for loss or damages suffered by the secured

creditor because of the failure of the proponent to comply with this section.

(4) A security interest on land subject to

expropriation is terminated by the expropriation, notwithstanding that the

landowner may have a residual real property interest in the land which is

subject to the expropriation.

Effect of error

(1) An error in a notice of expropriation does not invalidate

the expropriation of the land.

(2) A notice of expropriation may be amended and

an amendment shall be served or posted and registered in accordance with this

Part as if it were a notice of expropriation and shall be considered to have

been served or posted at the same time as the notice of expropriation amended

by it.

Where compensation agreed

(1) Where

a proponent and the person who in the opinion of the proponent is the apparent landowner

have reached an agreement for the transfer of the land to the proponent but the

proponent is of the opinion that title to the land cannot be conveniently or

readily transferred by the apparent owner

(a) subsections 16 (1)

and (2) shall apply as if the owner is not known, but in addition the proponent

shall serve a copy of the notice of expropriation on the apparent owner; and

(b) subsections 16 (3)

and (4) shall not apply, and the compensation payable to the apparent owner

under this Part upon the expropriation becoming effective shall be the compensation

contained in the agreement,

but where it is found that the apparent

owner is not the true owner of the land, compensation shall be assessed and

paid to or in respect of the true owner in accordance with this Part.

(2) Paragraph (1)(

b) shall not apply unless the

expropriating authority is satisfied that the agreement is consistent with the

requirements of this Act and the expropriation protocol.

Vesting of title

(1) Within

10 days after the notice of expropriation is served, posted or published as

required, the title to the land vests in the proponent named in the notice of

expropriation.

(2) Where a person resists or opposes a proponent

or the expropriating authority entering upon land referred to in

section 15 or entering upon and taking possession of expropriated

land after the title to the land has vested under this Part, a judge may make

an order respecting access to the property for the proponent or the

expropriating authority, as required for the expropriation, and any other order

the court considers necessary or required to facilitate access.

Compensation

(1) The

proponent shall pay compensation to the owner of land expropriated under the

authority of this Part and to a landowner detrimentally affected by the

expropriation.

(2) Where the parties

(

a) agree as to the compensation to be paid, that

agreement shall be approved by the expropriating authority where it is consistent

with this Act and the expropriation protocol, and compensation shall be paid

accordingly; or

(

b) cannot agree as to the compensation to be

paid, the matter may be referred to the arbitration panel under this Part by either

the proponent or the landowner.

(3) Compensation referred to in subsections

(1) and (2) shall be determined in the manner and in accordance with the rules for

compensation prescribed in this Part and the expropriation protocol, which

shall include the following:

(

a) the compensation shall be an amount based on

the fair market value in accordance with the highest and best use of the land at

the time of the beginning of expropriation proceedings and no account shall be

taken of the compulsory acquisition of the land, the disturbance of the owner

or occupier, or other detrimental effect, subject to paragraph (

f) and subsection

(4);

(

b) the fair market value of the land shall be

taken to be the amount that the land, if sold in the open market by a willing

seller to a willing buyer, might be expected to realize but all returns and assessments

of capital value for taxation made or acquiesced in by the owner of the land

shall be considered;

(

c) where there is more than one separate interest

in land, including a security interest, the market value of each separate

interest shall, where practical, be established separately;

(

d) where the expropriation is of a part of land

that is subject to a security interest, the compensation of a secured creditor shall

be determined in accordance with the market value of the expropriated part of

the land that is subject to the security interest;

(

e) where only part of an owners land is

expropriated and as a result of the expropriation the value of the remaining

land is increased, the owner is nevertheless entitled to the market value of

the land expropriated;

(

f) where only part of an owners land is taken,

compensation shall be given for

(

i) detrimental affection and any reduction in

market value to the remaining land, and

(ii) incidental damages

if the detrimental affection and incidental

damages result from or are likely to result from the taking or from the construction

or use for which the land is required;

(

g) when the expropriation is of a statutory

easement, the amount of compensation may ignore the residual value to the

owner; and

(

h) when the expropriation is of a statutory

easement, the amount of compensation shall include

(

i) damage caused by or arising out of the

operation of the proponent to land of the owner or occupant other than the area

expropriated,

(ii) the loss or damage to personal property of the

owner or occupant caused by or arising out of the operation of the proponent,

and

(iii) expense incurred by the owner or occupant in

repairing or recovering the owners or occupants personal property due to an

act or omission of the proponent.

(4) In addition to the manner of determining

compensation referred to in subsections (1) to (3), a landowner may, in

accordance with the expropriation protocol, be compensated for the disturbance

to the landowner or for another detrimental effect, or for business losses as a

result of the expropriation.

Registration

(1) A

copy of a notice of an expropriation in the form required by the expropriation

protocol shall be registered in accordance with

section 7 of the Registration of Deeds Act, 2009 , and

that Act shall apply to the registration of that instrument.

(2) The provisions of the Registration of Deeds Act, 2009 relating to proof for registration

of an instrument shall apply to proof of service or of posting of the notice as

if the person serving or posting the notice were the signing witness to the

execution of the instrument.

(3) Registration of a notice of expropriation and

other documents respecting expropriation as required in the expropriation

protocol constitutes compliance with the provisions of the Registration of Deeds Act, 2009.

(4) Where the name of the owner of the land expropriated

is not known, the notice of expropriation shall be registered with reference

only to the proponent.

Arbitration panel

24. The

Lieutenant-Governor in Council shall, in the manner prescribed in the

expropriation protocol, appoint an arbitration panel to determine compensation

for or related to an expropriation under this Part.

Arbitration panel

may try questions of law and fact

(1) The

arbitration panel may, in addition to assessing the value of land expropriated,

determine all questions of law and fact necessary for it to

(

a) fix the amount of compensation to be paid in

respect of the land that was expropriated or detrimentally affected by the

expropriation; and

(

b) determine the persons to whom compensation

should be paid and the amount which should be paid to each of them.

(2) The arbitration panel may state an award for

compensation as to the whole or part of the compensation in the form of a

special case for the opinion of a judge of the Trial Division.

(3) The arbitration panel may at any stage of its

proceedings and shall where directed by a judge of the court state in the form

of a special case for the opinion of the court a question of law arising in the

course of the proceedings.

(4) A party may apply to a judge of the court for

an order directing that a question of law arising in the course of proceedings

before the arbitration panel shall be stated in the form of a special case.

Leasehold land

(1) Where

land subject to a lease or sublease for a term of not less than one year is

expropriated the arbitration panel shall apportion the compensation fixed in

respect of the land between the lessor and lessee and sublessee or the assigns

of either in a manner that in its absolute discretion seems appropriate.

(2) Where part only of the land referred to in

subsection (1) is expropriated the arbitration panel shall, in addition,

apportion the rent payable in respect of the land between the land expropriated

and the residue of the land and after the apportionment the lessee or sublessee

or their assigns shall, as to all future accruing rent, be liable only for so

much of the rent as is apportioned in respect of the land not expropriated.

(3) In respect of the land not expropriated and as

against the lessee and sublessee or their assigns the lessor has all the same

rights and remedies for the recovery of the portion of rent as previously to

the apportionment he or she had for the recovery of the whole rent reserved by

the lease, and all the covenants, conditions and agreements of the lease,

except as to the amount of rent to be paid, shall remain in force with regard

to that part of the land that is not expropriated in the same manner as they

would have done where that part only of the land had been included in the lease

or sublease.

Return of land

expropriated

(1) Where,

before the compensation has been actually paid or before an award is made by

the arbitration panel, a parcel or a part of a parcel of land taken for the

purpose of this Act is found by a proponent to be unnecessary for the purpose

for which it was expropriated or where it is found by a proponent that only a

more limited estate or interest in the land or a part of it is required, the expropriation

authority may, in response to a request from a proponent where that proponent

meets the requirements of the expropriation protocol, by a written notice

served or posted in the manner provided in

section 16 ,

declare that the land or the part of it referred to in the notice is not

required and is abandoned by the person in whom the title vested under

section 13 or 21 or that it

is intended to retain only a limited estate or interest in the land or a part

of it as is mentioned in the notice.

(2) Upon the written notice referred to in

subsection (1) being registered in the same manner as is provided in

section 23 for the registration of a notice of expropriation,

the land declared to be abandoned shall revest in the person from whom it was

taken or in those entitled to claim under him or her and

section 23 applies to the notice as if it were a notice of

expropriation.

(3) In the event of a limited estate or interest

in the land or a part of it being retained by the person in whom the title

vested under this Part, the land shall revest in accordance with subsection

(2), subject to the estate or interest retained.

(4) The event of the abandonment revesting the

land in the person from whom it was expropriated shall be taken into account in

addition to all the other circumstances of the case in estimating or assessing

the amount to be paid to a person claiming compensation for the land

expropriated and not abandoned.

Award of arbitration

panel to be written

(1) The

arbitration panel shall make its award in writing within 60 days after it has

been seized with the matter, unless the expropriation authority extends that

period, and shall immediately deliver a copy of its award to all parties to the

hearing.

(2) A party to an arbitration may, within 30 days

after the date of an award, give to the other party notice of an appeal to the

Court of Appeal against the findings of the arbitration panel upon a question

of law or fact in connection with the expropriation or upon the question of the

amount of compensation awarded by the arbitration panel.

(3) Costs in an appeal under subsection (2) may be

awarded by the court for or against the proponent.

Want of form

(1) An

award is not invalid because of a want of form or other technical objection

where this Act has been substantially complied with, and the award states

clearly the compensation awarded and the lands in respect of which it has been

awarded.

(2) The arbitration panel may, but need not, name

in the award the person to whom compensation is to be paid but the lands in

respect of which the award has been made shall be clearly indicated.

Arbitration panel

may award costs

(1) Where

the compensation awarded by the arbitration panel in a case is greater than the

sum that the proponent offered in writing for the land that was expropriated or

detrimentally affected, the proponent shall pay the landowner's reasonable costs

and expenses in connection with the hearing held by the arbitration panel.

(2) Where the compensation awarded by the arbitration

panel in a case is less than the sum that the proponent offered in writing for

the land that was expropriated or detrimentally affected, the proponent has no

obligation to pay the costs and expenses of the landowner.

(3) Where in respect of land expropriated or

detrimentally affected no sum was offered before expropriation, costs and all

expenses in connection with the hearing held by the arbitration panel shall be

paid by the party designated by the arbitration panel, and may be apportioned

between the parties.

Payment of compensation

(1) The

proponent shall pay the compensation awarded by the arbitration panel within 30

days after the date on which the award was made, and, where the compensation is

not paid within 30 days after the date on which the award was made, it shall

after the end of that time period bear interest at the rate of 5% a year until

it is paid.

(2) Where compensation has been agreed between the

parties but has not been paid within 30 days after the date on which the agreement

was made, it shall after the end of that time period bear interest at the rate

of 5% a year until it is paid.

Claims upon compensation

32. The

compensation agreed upon or awarded in respect of land expropriated or detrimentally

affected by the exercise of powers conferred by this Act shall stand in the

stead of the land expropriated or detrimentally affected and a claim to or

encumbrance upon the land expropriated or detrimentally affected shall, as

against the proponent, become a claim to or upon the compensation and shall no

longer affect the land expropriated or detrimentally affected.

Payments into trust

(1) Where,

in respect of land that has been expropriated or detrimentally affected,

(

a) the owner

(

i) refuses to accept the compensation awarded in

respect of the land,

(ii) neglects or fails to make out a title to the

land or the interest in land claimed by him or her to the reasonable

satisfaction of the expropriation authority,

(iii) refuses to execute a document or receipt of

indemnity in respect of the land as required by the expropriation authority,

(iv) is absent from the province or cannot after

inquiry by the proponent be found, or

(

v) is under a disability;

(

b) a person other than the owner to whom

compensation is payable under this Act

(

i) refuses to accept the compensation awarded to

him or her,

(ii) is under a disability,

(iii) is a partial or qualified owner, or

(iv) is not entitled to sell or convey the land; or

(

c) the expropriation authority certifies that in its

opinion there are or are likely to be conflicting claims in respect of the

compensation or that for whatever reason it is advisable to pay the compensation

into trust,

the proponent shall place those funds in

trust with a trustee in accordance with the expropriation protocol .

(2) From the date of the payment into trust, the proponent

is not liable to pay interest under this Act or otherwise.

Proponent to

notify claimants

(1) When

money is paid into trust, the proponent shall

(

a) notify those persons referred to in

section 33 to whom notice can be given;

(

b) file with the trustee the name and address of

persons who to the knowledge of the proponent claim the compensation or a part

of it, together with all information in the possession of the proponent in

respect of the expropriation and claims for payment of compensation on account

of the expropriation or detrimental effect resulting from it; and

(

c) within 10 days after payment into trust, publish

a notice in a newspaper published in the province and circulating in the area

where the land is located stating the place where the land is located,

describing the land that has been expropriated under this Act and calling upon

all persons who had an interest in or claim against the land or who have been

detrimentally affected by the expropriation to file their claims to the

compensation or part of it with the trustee.

(2) The proponent shall advise the expropriating

authority of an action under subsection (1).

Trustee to

furnish names and addresses

35. The

trustee shall give to a person requesting it the name and address of every

claimant to compensation filed with him or her by the proponent or by or on

behalf of the claimants.

Trustee to pay

owner

(1) Where

compensation is paid into a trust account under this Act the trustee shall,

upon a person establishing his or her claim to it or a portion of it according

to law and fulfilling all of the terms or conditions applying to him or her

under this Act, pay to that person the compensation or the portion of the

compensation but the trustee shall not pay the compensation in a case where it

appears to him or her that the claim of a person is or is likely to be

contested or has not been established in accordance with this subsection.

(2) Where the trustee refuses to pay compensation

under subsection (1) he or she shall give to a person claiming payment a certificate

of refusal to pay the compensation and stating his or her reasons for the

refusal.

Where claim is

contested

37. Where

there are conflicting claims to compensation or a portion of the compensation

paid into trust under this Act or where for another reason the trustee has

refused to make payment under

section 36 , a person

claiming the compensation or a part of the compensation may apply to the Trial

Division for an order directing that the compensation or part of the

compensation be paid to him or her.

Petition for

payment out of court

(1) An

application to the Trial Division under

section 37

shall be made by application of the claimant stating that to the best of his or

her belief he or she was immediately before the expropriation the owner of the

land in respect of which he or she claims and setting out in detail the facts

on which his or her belief is founded.

(2) Where he or she is not aware of the existence

of a claim adverse to or inconsistent with his or her own he or she shall state

that.

(3) Where he or she is aware of an adverse claim

he or she shall set out every adverse claim and shall state that he or she is

not aware of an adverse claim except what he or she sets out.

(4) The application shall be verified by

affidavit, but with leave of the judge the affidavit of the applicant may be

dispensed with or may be made by some person other than the applicant and the

affidavit may be made in part by one person and in part by another person.

Notice of application

(1) Before

proceedings are taken under

section 38 a

claimant shall post notice of his or her intention to make an application under

that

section in the Registry of the Supreme Court for 3 clear days, and he or

she shall then give notice of his or her application in accordance with the Judicature Act and the Rules of the Supreme Court, 1986 to a

claimant whose name has been filed with the trustee and to a person who to his

or her knowledge claims the compensation or a part of the compensation.

(2) Where it appears to the judge that there is a

person who may have a claim adverse to or inconsistent with that of the

applicant, the applicant shall serve notice on that person by personal or

substituted service as the judge considers necessary or desirable.

(3) At any stage of the proceedings the judge may

require further publication to be made or further notice to be served upon a

person that he or she considers necessary.

Adverse claims

40. A

person having an adverse claim or a claim not recognized in the application may

before the hearing of the subject matter of the application file with the court

a statement of the particulars of his or her claim verified by affidavit and

serve a copy of the statement on the petitioner, his or her solicitor or agent,

and the trustee.

Security for

costs

41. The

judge may at any stage of the proceedings order security for costs to be given

by the applicant or by a person making an adverse claim.

Costs

42. The

judge may order costs either between party and party or between solicitor and

client to be paid by or to a party to a proceeding.

Adjudication

43. The

matter of the application may be heard and adjudicated upon and the judge may

then make an order for the distribution, payment or investment of the

compensation and for securing the rights of all parties interested as the judge

considers appropriate.

Compensation

44. The

trustee shall in cases referred to in

section 43

dispose of the compensation as directed by the judge.

Claims barred

after 3 years

45. A

claim to compensation or a part of compensation paid into a trust account under

this Act that has not, before the end of 3 years from the date of payment, been

established to the satisfaction of the trustee or in respect of which an

application under

section 37 has not been

commenced in the Trial Division in accordance with this Act, is barred.

Compensation

becomes property of proponent

46. Where

a claim to compensation is barred under

section 45 ,

the compensation and all interest accrued become the property of the proponent and

the trustee shall then return the compensation and interest to the proponent.

Expropriation

protocol

47. The

Lieutenant-Governor in Council shall, by regulation, establish an expropriation

protocol for the purpose of expropriations under this Part, and in particular

shall make regulations

(

a) respecting the procedures which may be

required for negotiations respecting land sought under this Part;

(

b) respecting the procedures for expropriations

under this Part, including urgent expropriations under

section 13 and the return of land under

section 27 ;

(

c) prescribing the information which is required

to be provided respecting an agreement, expropriation or arbitration under this

Part;

(

d) prescribing the time periods for response to a

notice of expropriation required under this Part, and those other time periods

respecting expropriations under this Part;

(

e) respecting the composition of a panel of

arbitration, the process by which that arbitration panel will hear and decide

matters, and generally to facilitate the conduct of an arbitration between the

parties;

(

f) respecting the keeping by the expropriating

authority of a register of expropriations, including the particulars required

to be contained in that register;

(

g) respecting the rules for the payment of money

into trust under this Part; and

(

h) generally, for the purpose and administration

of this Part.

PART III

MUNICIPAL TAXATION

Definition

48. For

the purpose of this Part, "real property" means real property as

defined in the Municipalities Act, 1999 .

Real property tax

49 .

(1) Where

a real property tax is imposed by

an Act of the province for the benefit of a

municipality and a holder is liable to pay that tax, the holder shall pay the

tax in accordance with that Act.

(2) Notwithstanding subsection (1), a holder is

exempt from municipal taxation with respect to the following real property in

relation to the Muskrat Falls Project only:

(

a) real property of the holder in the

transmission corridor;

(

b) transmission assets on, under or connected to real

property in the transmission corridor; and

(

c) other transmission assets as may be prescribed

in the regulations,

but the holder's liability to pay tax

referred to in subsection (1) is otherwise unaffected.

(3) The Lieutenant-Governor in Council may make regulations

respecting the transmission assets referred to in paragraph (2)(c).

Business or commercial

tax

(1) Where

a business or commercial tax is imposed by

an Act of the province for the

benefit of a municipality and a holder is liable to pay that tax, a holder

shall pay the tax in accordance with that Act.

(2) Notwithstanding subsection (1), a holder is

exempt from taxation referred to in that subsection with respect to the transmission

corridor or the transmission lines where the exclusive operation of the holder

in the transmission corridor or in respect of the transmission line is the transmission

of electrical energy with respect to the Muskrat Falls Project, but the

holder's liability to pay tax referred to in subsection (1) is otherwise

unaffected.

Other tax

(1) Where

water or sewage or water and sewage tax is imposed by

an Act of the province

for the benefit of a municipality and a holder is liable to pay that tax, the

holder shall pay that tax in accordance with that Act.

(2) Nothing in this Act affects the ability to

impose a tax under

an Act of the province or the liability to pay that tax where

a service referred to in subsection (1) is provided to a holder.

Taxation of landowner

52. Notwithstanding

another Act of the province, where a statutory easement has been registered

under this Act, a landowner is not liable to pay tax to a municipality as a result

of a residual interest in the land which is the subject of a statutory easement.

Order to pay

taxes

(1) The

Lieutenant-Governor in Council may by order direct that subsection 49 (2) or 50 (2) no

longer applies to a holder.

(2) An order made under subsection (1) has effect

from the date of the order or from the date that may be stated in the order.

PART IV

LAND USE AND PERMITTING

Land use and permitting

(1) A

holder may use and develop land located within the boundary of a municipality or

a planning area as defined in the Urban

and Rural Planning Act, 2000 in respect of the transmission corridor and

transmission lines for the purpose of the Muskrat Falls Project without obtaining

a permit from a council of a municipality as may otherwise be required under an

Act of the province.

(2) A land use plan or development regulations

under the Urban and Rural Planning Act,

2000 , the City of St. John's Act ,

the City of Corner Brook Act , the City of Mount Pearl Act or the Municipalities Act, 1999 , shall not be

inconsistent with the approved use under subsection (1), and where land use

plans or development regulations were prepared and approved before the coming

into force of this section, they are considered to be modified and are approved

as being consistent with the approved use under subsection (1).

(3) After the coming into force of this Part, a

land use plan or development regulations under the Urban and Rural Planning Act, 2000 , the City of St. John's Act , the City

of Corner Brook Act , the City of

Mount Pearl Act or the Municipalities

Act, 1999 , shall only be approved where consistent with subsection (1).

(4) A person is not entitled to compensation for a

reduction in the value of that persons interest in land or loss or damage to

that persons interest in land resulting from the application of this section,

except as may otherwise be referred to in this Act.

Application

(1) The

following Acts shall not apply for the purpose of permitting in a transmission

corridor:

(

a) the

Municipalities Act, 1999 ;

(

b) the Urban

and Rural Planning Act, 2000 ; and

(

c) the City

of St. John's Act , the City of Corner

Brook Act and the City of Mount Pearl

Act .

(2) A municipality or a person shall not use or

undertake a development in respect of a transmission corridor, except in

accordance with a permit issued under subsection (4), or, where the person is a

holder, as approved under subsection 54 (1).

(3) A municipality or a person may, in accordance

with the regulations, apply to the minister for a permit for the development or

use of land in a transmission corridor where that development or use is necessary

(

a) for public infrastructure;

(

b) for the purpose of access to land not in the

transmission corridor; or

(

c) for the use of land in a transmission corridor

by an adjacent landowner for a purpose prescribed in the regulations.

(4) Where, following consultation with the holder

of the transmission corridor, the minister is of the opinion that the proposed

use or development does not unnecessarily interfere with the use of the transmission

corridor by the holder and the application is otherwise acceptable to the

minister, the minister may issue a permit.

(5) A permit issued under this

section may contain

those terms, conditions and specifications as prescribed by the minister.

(6) A decision of the minister on an application

under this

section is final and binding.

Continued non-conforming

use

56. The

minister may, following consultation with a holder of the transmission corridor

and in accordance with regulations made under this Part, allow a development or

use of land to continue under a permit issued by a council of a municipality in

a manner that does not conform with

section 54 provided

that the non-conforming use legally existed before the approval of the use

under that

section and does not unnecessarily interfere with the use of the

transmission corridor by the holder.

Order

(1) Where

a person has, contrary to subsection 55 (2) or

an approval under that subsection, undertaken or commenced a building or other

development, the minister, where he or she considers it necessary, may order

that the person pull down, remove, stop construction, fill in or destroy that

building or development and may order that the person restore the site or area

to its original state.

(2) A person ordered to carry out an action under

subsection (1) shall be served with that order and shall comply with the order

at the person's own expense.

(3) An order made under this

section continues in

force until revoked by the minister who made the order.

(4) The minister may, in an order made under this

section, specify a time within which there shall be compliance with the order.

(5) Where a person to whom an order is directed

under this

section does not comply with the order or a part of it, the minister

may take the action that he or she considers necessary to carry out the order

and costs, expenses or charges incurred by the minister in carrying out the

order are recoverable against the person against whom the order was made as a

debt owed to the Crown.

Regulations

58. The

Lieutenant-Governor in Council may make regulations for the purpose of this

Part, including regulations respecting

(

a) the manner in which an application for a

permit under this Part may be made;

(

b) the purpose for which land in a transmission

corridor may be used in accordance with paragraph 55 (3)(c);

and

(

c) generally, to give effect to this Part.

PART V

GENERAL, CONSEQUENTIAL AND COMMENCEMENT

Fees and forms

59. The

minister may set fees and prescribe forms for the purpose and administration of

this Act.

SNL2009 cR-10.01 Amdt.

60. Subsection 7(1) of the Registration of Deeds Act, 2009 is amended by adding immediately

after paragraph (

a) the following:

(a.1) a statutory easement under the Muskrat Falls

Project Land Use and Expropriation Act;

Commencement

61. This Act, or a

section or subsection,

paragraph, subparagraph or clause of it comes into force on a day or days to be

proclaimed by the Lieutenant-Governor in Council.

Queen's Printer