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NEWFOUNDLAND AND LABRADOR
REGULATION 121/13

Muskrat Falls Project Land Use and Expropriation Regulations
under the
Muskrat Falls Project Land Use and Expropriation Act
(O.C. 2013-346)

(Filed November 29, 2013)

Under the authority of sections 11, 47, and 58 of the Muskrat Falls Project Land Use and Expropriation Act, the Lieutenant-Governor in Council makes the following regulations.

Dated at St. John's , November 29, 2013.

Julia Mullaley
Clerk of the Executive Council

REGULATIONS

Analysis


       
1.   Short title

       
2.   Definitions

              PART I
STATUTORY EASEMENT

       
3.   Statutory easement

              PART II
EXPROPRIATION PROTOCOL

       
4.   Compensation further to negotiated agreement

       
5.   Application for expropriation

       
6.   Request does not meet requirements

       
7.   Notice of expropriation

       
8.   Re-application

       
9.   Notice of abandonment

     
10.   Further expropriation

     
11.   Application for expropriation on an urgent basis

     
12.   Approval of expropriation by Lieutenant-Governor in Council

     
13.   Register of expropriations

     
14.   Value of compensation

              PART III
DETERMINATION OF COMPENSATION

     
15.   Negotiated agreement not precluded by arbitration

     
16.   Arbitration panel established

     
17.   Quorum and operations of arbitration panel

     
18.   Types of hearings

     
19.   Commencement of proceedings

     
20.   Notice

     
21.   Pre-hearing conference

     
22.   Response by parties

     
23.   Hearing of application

     
24.   Representation

     
25.   Extension or reduction of time periods

     
26.   Confidential business information

     
27.   Recording, amendment or consolidation of proceedings

     
28.   Dismissal of application

     
29.   Costs

     
30.   Action barred

     
31.   Special case

     
32.   Appeal

              PART IV
PAYMENT INTO TRUST

     
33.   Costs and interest

     
34.   Payment into trust

              PART V
LAND USE AND PERMITTING

     
35.   Permit

     
36.   Application

     
37.   Compatible use

     
38.   Permit for use

     
39.   Permit for development

     
40.   Cancellation of permit

     
41.   Prior development

     
42.   Other prescribed purposes

     
43.   Repeal


Schedule


Short title

        1. These regulations may be cited as theMuskrat Falls Project Land Use and Expropriation Regulations.

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Definitions

        2. In these regulations

             (a)  "Act" means the Muskrat Falls Project Land Use and Expropriation Act;

             (b)  "applicant"

                      (i)  for the purpose of Part III, means a person who makes an application to the arbitration panel, and includes a person who requests that a matter be referred to the arbitration panel, and

                     (ii)  for the purpose of Part V, means a person who makes an application to the minister for a permit under that Part;

             (c)  "appraisal" means an appraisal of the value of land prepared in accordance with the Act and these regulations;

             (d)  "arbitration tribunal" means 3 members of the arbitration panel appointed to determine compensation owing for or related to an expropriation under the Act and these regulations;

             (e)  "claimant" means  

                      (i)  a person who may be entitled to compensation for reasonable incidental damages in accordance with section 15 of the Act,

                     (ii)  a person who, as a result of an expropriation, may be entitled to compensation for detrimental affection in accordance with the Act, or

                    (iii)  a lessee who may be entitled to compensation under section 26 of the Act;

              (f)  "compensation" means the compensation payable by a proponent to a landowner or claimant under section 22 of the Act;

             (g)  "electronic hearing" means a hearing held by teleconference, videoconference or other form of electronic technology allowing simultaneous communication;

             (h)  "hearing" means a proceeding to determine compensation for or related to an expropriation under the Act and these regulations which may be an oral hearing, a written hearing or an electronic hearing;

              (i)  "motion" means a request that the arbitration panel make a decision or give a direction at any stage in a proceeding;

              (j)  "oral hearing" means a hearing at which a party or its counsel or representatives attend before the arbitration panel members in person;

             (k)  "party" means a proponent, a landowner whose land has been expropriated in accordance with the Act and these regulations or a claimant;

              (l)  "person" means a natural person, corporation, partnership, limited partnership, joint venture, estate or other juridical entity recognized by the laws of the province;

            (m)  "prescribed form" means the form prescribed by the minister;

             (n)  "representative" means a person authorized by a person who is a party to represent that person at a hearing, including a member as defined in the Law Society Act, 1999 ;

             (o)  "visual evidence" means an image or an image with sound intended to be introduced into evidence at a hearing and includes a computer-generated image, photograph, map, video, plan, survey, model and overlay;

             (p)  "written evidence" means material intended to be introduced into evidence at a hearing and includes a report, letter, correspondence, notice, memo, form, agreement, email, chart, graph, books of account, and written communication recorded or stored by means of any device; and

             (q)  "written hearing" means a hearing held by means of the exchange of documents whether in written or electronic form.

PART I
STATUTORY EASEMENT

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Statutory easement

        3. (1) The rights and obligations granted in an instrument creating a statutory easement with respect to Crown land include the following:

             (a)  the holder of a statutory easement

                      (i)  is granted the right to remove trees and shrubbery on the statutory easement where, in the reasonable opinion of the holder of the statutory easement, the trees or shrubbery interfere with the construction, maintenance, repair or operation of transmission lines or transmission assets, and

                     (ii)  is granted the right to remove obstructions on the statutory easement where, in the reasonable opinion of the holder of the statutory easement, the obstruction interferes with the construction, maintenance, repair or operation of the transmission lines or the transmission assets;

             (b)  the holder of a statutory easement

                      (i)  shall pay an annual rental fee by the specified date during the currency of the statutory easement,

                     (ii)  shall notify the minister, in writing,

                            (A)  before creating a security interest in the statutory easement under subsection 7(2) of the Act, of the identity of the secured creditor and the nature of the security interest to be granted,

                            (B)  of any proceedings undertaken in relation to a security interest in the statutory easement, and

                            (C)  of an assignment or transfer of a statutory easement as part of a realization on a security interest;

             (c)  the holder of a statutory easement shall, as a condition of  transferring a statutory easement, submit to the minister an executed assignment agreement in the prescribed form;

             (d)  the holder of a statutory easement shall, as a condition of leasing a statutory easement or assigning rights to land under a statutory easement, for a term and in a manner which leaves the assignor with a reversionary interest in those rights,

                      (i)  obtain the agreement in writing of the lessee or assignee to be bound by and abide by the terms and condition of the statutory easement,

                     (ii)  provide a copy of the executed agreement to the minister, and

                    (iii)  execute any further documents requested by the minister to give effect to the lease or assignment;

             (e)  the holder of a statutory easement shall indemnify the Crown   for the holder's actions and the actions of its servants, agents, contractors, subcontractors and suppliers on the statutory easement; and

              (f)  the holder of a statutory easement shall not erect a fence or other barrier on a statutory easement, except

                      (i)  during construction and maintenance of the transmission lines and transmission assets, and

                     (ii)  for the purpose of protection against specific perils.

             (2)  The rights and obligations granted in the instrument creating a statutory easement with respect to land which is not Crown land include the following:

             (a)  the holder of a statutory easement

                      (i)  is granted the right to remove trees and shrubbery on the statutory easement where, in the reasonable opinion of the holder of the statutory easement, the trees or shrubbery interfere with the construction, maintenance, repair or operation of transmission lines or transmission assets, and

                     (ii)  is granted the right to remove obstructions on the statutory easement where, in the reasonable opinion of the holder of the statutory easement, the obstruction interferes with the construction, maintenance, repair or operation of the transmission lines or the transmission assets; and

             (b)  the holder of a statutory easement shall notify the person whose land is subject to a statutory easement, in writing,

                      (i)  of any proceedings undertaken in relation to a security interest in the statutory easement, and

                     (ii)  of an assignment or transfer of a statutory easement as part of a realization on a security interest;

             (c)  the holder of a statutory easement shall, as a condition of transferring a statutory easement, submit to the person whose land is subject to a statutory easement an executed assignment agreement in the prescribed form;

             (d)  the holder of a statutory easement shall, as a condition of leasing a statutory easement or assigning rights to land under a statutory easement

                      (i)  obtain the agreement in writing of the lessee or assignee to be bound by and abide by the terms and condition of the statutory easement, and

                     (ii)  provide a copy of the executed agreement to the person whose land is subject to a statutory easement;

             (e)  the holder of a statutory easement shall indemnify the person whose land is subject to a statutory easement for the holder's actions and the actions of its servants, agents, contractors, subcontractors and suppliers on the statutory easement; and

              (f)  the holder of a statutory easement shall not erect a fence or other barrier on a statutory easement, except

                      (i)  during construction and maintenance of the transmission lines and transmission assets, and

                     (ii)  for the purpose of protection against specific perils.

             (3)  A secured creditor with a security interest in a statutory easement may perform an obligation of a holder of a statutory easement under the statutory easement, but the holder of the statutory easement shall remain responsible for any resulting liability.

             (4)  The annual rental rate due by the holder of a statutory easement granted by the Crown shall be set by the minister, and shall be reviewed every 5 years and be adjusted as the minister determines is appropriate.

             (5)  Notwithstanding paragraph (1)(f), the minister may, on reasonable grounds, direct that public access be granted on or across Crown land for which a statutory easement has been granted.

             (6)  Where the holder of a statutory easement is in breach of paragraph (1)(e) or (2)(e) or subsection 6(3) or 7(3) of the Act and that breach has not been cured within 180 days of notice being provided to the holder and secured creditors with a security interest in the statutory easement, the minister may declare that the statutory easement is null and void and the statutory easement shall revert to

             (a)  the Crown, where the Crown granted the statutory easement; or

             (b)  the landowner who granted the statutory easement.

             (7)  A breach referred to in subsection (6) that cannot be cured by a secured creditor with a security interest in a statutory easement shall be considered cured if, within 180 days of notice being provided to the secured creditor under subsection (6), the secured creditor

             (a)  assumes the rights and obligations under the statutory easement, by submitting to the minister an executed agreement in the prescribed form;

             (b)  pays any outstanding monetary obligations under the statutory easement; and

             (c)  begins performing the obligations under the statutory easement.

             (8)  Unpaid rent owing by a statutory easement holder to the Crown is a debt due to the Crown and is recoverable as such.

             (9)  Where the holder of a statutory easement fails to use the rights granted by the statutory easement for a purpose related to the Muskrat Falls Project or a part of it for a period of 7 consecutive years, the minister may declare that the statutory instrument is null and void and the statutory easement shall revert to

             (a)  the Crown, where the Crown granted the statutory easement; or

             (b)  the landowner who granted the statutory easement.

           (10)  An instrument creating a statutory easement under the authority of section 6 of the Act which is not in the form prescribed by the minister is invalid.

PART II
EXPROPRIATION PROTOCOL

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Negotiation required

        4. (1) Where a proponent requires land which, in the opinion of the proponent, is necessary for the Muskrat Falls Project, the proponent shall negotiate with the landowner for that land before an application may be made under this Part.

             (2)  A proponent, with respect to a negotiation under this section and in the conduct of its dealings under the Act and these regulations generally, shall negotiate in good faith with

             (a)  a landowner who owns land which, in the opinion of the proponent, is necessary for the Muskrat Falls Project; and

             (b)  a claimant.

             (3)  A proponent shall offer to pay to a landowner or a claimant the compensation that is consistent with the rules for compensation prescribed in section 22 of the Act in the context of a negotiation under this section.

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Application for expropriation

        5. (1) Where a proponent requires land which, in the opinion of the proponent, is necessary for the Muskrat Falls Project, the proponent may, under the authority of paragraph 12(1)(b) of the Act, make an application to the expropriating authority requesting that the expropriating authority expropriate the land on the proponent's behalf.

             (2)  An application for expropriation shall be in the prescribed form and shall include the following information:

             (a)  a general description of the land to be expropriated, including the nature of the interest to be expropriated;

             (b)  a declaration of an officer of the proponent that the land to be expropriated is, in the opinion of the proponent, necessary for the Muskrat Falls Project;

             (c)  the circumstances set out in subsection 12(5) of the Act that apply to the request;

             (d)  the identity of any person claiming to have an interest in the land to be expropriated, if known;

             (e)  the details of negotiations which have been undertaken with respect to the acquisition by the proponent of the land to be expropriated and any offer which the proponent has made or, where no offer has been made, the reason why no offer has been made;

              (f)  a survey conducted by a surveyor licensed under the Land Surveyors Act, 1991 , or other description of the land that is to be expropriated, in form and content satisfactory to the expropriating authority;

             (g)  either

                      (i)  a copy of an appraisal of the land, or

                     (ii)  an affidavit of an officer of the proponent respecting an alternative method of valuation of the land;

             (h)  a title search of the land to be expropriated, in form and content satisfactory to the expropriating authority, that details a registered security interest in the land concerned; and

              (i)  the results of a search of the Judgment Enforcement Registry, or where the results are not attached, an explanation satisfactory to the expropriating authority as to why the information is not attached.

             (3)  Where a request is made to expropriate land, the expropriating authority shall determine whether the requirements of section 4 have been met.

             (4)  A proponent shall pay the costs of an appraisal required under this section and shall deliver a copy of it to the landowner, where known.

             (5)  An appraisal shall be carried out by a qualified independent appraiser who

             (a)  is accredited by the Appraisal Institute of Canada; and

             (b)  has earned the designation of Accredited Appraiser Canadian Institute, AACI.

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Request does not meet requirements

        6. Where, in the opinion of the expropriating authority, an application for expropriation does not meet the requirements of the Act and these regulations, the expropriating authority may

             (a)  reject the request; or

             (b)  request that a proponent provide further information respecting a proponent's request to expropriate land, and consider the request in light of that additional information and decide upon it.

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Notice of expropriation

        7. (1) Where the expropriating authority is satisfied that a proponent has met the requirements of the Act and these regulations, the expropriating authority shall issue a notice of expropriation containing the provisions required in the Schedule.

             (2)  A notice of expropriation referred to in subsection (1) may authorize, on behalf of the proponent, the expropriation of

             (a)  the land as described in the application of the proponent;

             (b)  a greater or lesser portion of the land than that which was described in the application of the proponent; or

             (c)  a different interest or an additional interest in land than that which was described in the application of the proponent.

             (3)  The expropriating authority shall direct that the proponent, on behalf of the expropriating authority,

             (a)  post a copy of the notice of expropriation on the land concerned; and

             (b)  either

                      (i)  serve a copy of the notice of expropriation on a known landowner or person with an interest in the land, or

                     (ii)  where a landowner or person with an interest in the land is not known, publish a copy of the notice of expropriation in a newspaper in general circulation in the province.

             (4)  Service required under subparagraph (3)(b)(i) shall be completed in the manner directed by the expropriating authority.

             (5)  Proof of posting and of service or publication under subsection (3) shall be by an affidavit in form and content acceptable to the expropriating authority, and that affidavit shall be completed by the proponent and attached to the notice of expropriation.

             (6)  In accordance with section 21 of the Act, title to the land vests in the proponent 10 days after the posting of the copy of the notice of expropriation under paragraph (3)(a) or the service or publication under paragraph (3)(b), whichever is earlier.

             (7)  The notice of expropriation and the affidavit referred to in subsection (5) shall be registered in the Registry of Deeds by the proponent on behalf of the expropriating authority.

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Re-application

        8. Where the expropriating authority rejects a proponent's request to expropriate land, that rejection does not preclude the applicant from submitting a further application for the expropriation of

             (a)  a different portion of that land or a different interest in that land; or

             (b)  the same land, on the basis of different evidence.

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Notice of abandonment

        9. (1) An application to abandon land under section 27 of the Act shall include the reasons that the proponent wishes to abandon the land.

             (2)  The expropriating authority, in response to a request made under subsection (1), may reject that request or issue a notice of abandonment.

             (3)  A copy of the notice of abandonment shall be posted and served or published as if it were a copy of the notice of expropriation under subsections 7 (3) to (5).

             (4)  A notice of abandonment and the required affidavit shall be registered in the Registry of Deeds by the proponent on behalf of the expropriating authority.

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Further expropriation

      10. Where a proponent determines that it requires a greater portion of land or a different interest in land than that which is referred to in a notice of expropriation, the proponent shall make a new application to the expropriating authority for expropriation under section 5 or section 11, as appropriate.

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Application for expropriation on an urgent basis

      11. (1) Where a proponent determines that land is urgently required for the purpose of the Muskrat Falls Project, the proponent may make an application under section 13 of the Act to the expropriating authority for an order of the Lieutenant-Governor in Council authorizing that expropriation.

             (2)  An application for expropriation under this section shall be in the prescribed form and shall include the following information:

             (a)  a general description of the land to be expropriated, including the nature of the interest to be expropriated;

             (b)  a declaration of an officer of the proponent that the land to be expropriated is, in the opinion of the proponent, necessary for the Muskrat Falls Project;

             (c)  the identity of any person claiming to have an interest in the land to be expropriated, if known;

             (d)  the details of negotiations which have been undertaken with respect to acquisition by the proponent of the land to be expropriated, if any, and any offer which the proponent has made to any person or, where no offer has been made, the reason why no offer has been made;

             (e)  a survey conducted by a surveyor licensed under the Land Surveyors Act, 1991 , or other description of the land to be expropriated, in form and content satisfactory to the expropriating authority;

              (f)  either

                      (i)  a copy of an appraisal of the land, or

                     (ii)  an affidavit of an officer of the proponent respecting an alternative method of valuation of the land;

             (g)  a title search of the land to be expropriated, in form and content satisfactory to the expropriating authority, that details a registered security interest in the land concerned; and

             (h)  the results of a search of the Judgment Enforcement Registry, or where results are not attached, an explanation satisfactory to the expropriating authority as to why the information is not attached.

             (3)  Subsections 5(4) and (5) apply to an appraisal under this section.

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Approval of expropriation by Lieutenant-Governor in Council

      12. (1) Where the expropriating authority receives an application under section 11 , the expropriating authority shall immediately forward that application to the Lieutenant-Governor in Council for consideration.

             (2)  The Lieutenant-Governor in Council shall consider that application and may, by order, do some or all of the following:

             (a)  approve the application, including the terms and conditions the Lieutenant-Governor in Council may impose, and authorize the expropriation of

                      (i)  the land as described in the application of the proponent,

                     (ii)  a greater or lesser portion of the land than that which was described in the application of the proponent, or

                    (iii)  a different interest or an additional interest in the land than that which was described in the application of the proponent; or

             (b)  reject the application.

             (3)  Where, under the authority of section 13 of the Act, the Lieutenant-Governor in Council issues an order directing the expropriating authority to issue a notice of expropriation,

             (a)  the expropriating authority shall issue a notice of expropriation in the prescribed form containing the information required in the Schedule; and

             (b)  the proponent shall provide the landowner with the following

                      (i)  a copy of the appraisal or the affidavit respecting the method of valuation used by the proponent in determining the compensation for the land to be expropriated which was submitted under section 11 , and

                     (ii)  a copy of the survey or other description of the land to be expropriated which was submitted under section 11 .

             (4)  A copy of the notice of expropriation under this section shall be posted and served or published by the proponent as if it were a copy of a notice of expropriation under subsections 7 (3) to (5).

             (5)  In accordance with subsection 13(3) of the Act, title to the land vests in the proponent 7 days after the posting of the copy of the notice of expropriation and the service or publication as required by subsection (4), whichever is earlier.   

             (6)  The notice of expropriation and the affidavit referred to in subsection (3) shall be registered in the Registry of Deeds by the proponent on behalf of the expropriating authority.

             (7)  Where, under section 13 of the Act, the Lieutenant-Governor in Council rejects an application of a proponent for an order to expropriate land, that rejection shall not preclude a proponent from making a further or subsequent application under either section 12 or 13 of the Act in respect of that land or a greater or lesser portion of that land or a different interest in it.

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Register of expropriations

      13. (1) The expropriating authority shall maintain a register of expropriations under the Act and these regulations in both paper and electronic formats.

             (2)  The following information shall be maintained in the register of expropriations:

             (a)  the location of the land concerned;

             (b)  the nature of the interest in land that was expropriated;

             (c)  a copy of a notice of expropriation;

             (d)  a copy of an affidavit of service;

             (e)  a copy of a notice of abandonment, if there is one;

              (f)  the identity of a party with an interest in that land, including a secured interest holder;

             (g)  a copy of an order issued under the authority of section 13 of the Act by the Lieutenant-Governor in Council, if there is one, including any amendments to it;

             (h)  where an agreement between parties respecting compensation has been reached, the date and particulars of that agreement, and details, including the amount paid and to whom, the dollar value of the agreement, the date the agreement was approved by the expropriating authority and a copy of the agreement or related release in executed form;

              (i)  where a matter related to the expropriation of land has been referred to the arbitration panel by a party, the date of the referral, the identity of the persons appointed to the arbitration panel to hear a matter, details of an extension of time requested and granted or not granted under the Act in respect of the hearing of a matter, and the date and disposition of a matter by an arbitration panel, including a copy of the decision;

              (j)  details of a payment made by a proponent to a landowner or claimant under an award of compensation, including any costs and interest awarded by the arbitration panel and a copy of the agreement or related release in executed form;

             (k)  where an arbitration panel has referred a special case under section 25 of the Act, a copy as provided of all related documents, including a decision of the court in the matter;

              (l)  a copy of a notice of application or appeal filed with a court with respect to an arbitration or a decision of the arbitration panel, including details of subsequent appeals related to the same, and details of a decision of a court disposing of a matter; and

            (m)  details of a payment made by a proponent to a trustee under section 33 of the Act, of the identity of that trustee, of a related court application and a report, as requested by the expropriating authority regarding the status of related court applications and of the disposition of money paid to a trustee.

             (3)  A proponent shall forward the information required under subsection (2) to the expropriating authority in electronic format, or in both paper and electronic format where requested by the expropriating authority, within 10 days of a proponent coming into possession of information or the occurrence of an event referenced.

             (4)  The expropriating authority shall forward a copy of every notice of expropriation and notice of abandonment registered in the register of expropriations to the arbitration panel. 

             (5)  The arbitration panel and an arbitration tribunal may access a document registered in the register of expropriations for the purpose of exercising a power or performing a duty prescribed in the Act or these regulations.

             (6)  Failure to comply with a requirement of this section does not invalidate or otherwise affect an expropriation or an agreement respecting compensation related to it.

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Value of compensation

      14. (1) Where land is expropriated under the Act and these regulations, the parties may agree between them as to the value of the compensation owing to a landowner or a claimant at any time before an arbitration tribunal has made a determination on the matter.

             (2)  Notwithstanding subsection (1), an agreement respecting the value of compensation for expropriation under the Act and these regulations is not valid and enforceable unless first approved by the expropriating authority, in writing.  

             (3)  Where the parties disagree on

             (a)  the value of land expropriated and the amount of compensation to be paid for it; or

             (b)  the value to be ascribed to a claim of detrimental affection to land and the amount of compensation to be paid for it,

the proponent, at the proponent's cost, shall obtain an appraisal of the value of the land or of the value of the detrimental affection to the land concerned, if one has not already been completed, and provide a copy of that appraisal to the landowner or claimant.

             (4)  Where, following receipt of the appraisal referred to in subsection (3), the parties do not agree on the value of the land or the value to be ascribed to a claim of detrimental affection to land,

             (a)  the proponent, landowner or claimant may request a second appraisal by another appraiser of the requestor's choosing, the reasonable cost of which the proponent shall bear; and

             (b)  a copy of that appraisal shall be provided by the requestor to the other parties.  

             (5)  An appraisal under this section shall be completed by an appraiser referred to in subsection 5 (5).

             (6)  Notwithstanding another provision of this section, the proponent shall bear the cost of no more than 2 appraisals of land or 2 appraisals of the value of detrimental affection to land where those appraisals concern the same land or the same claim of detrimental affection.

             (7)  Where an agreement cannot be reached under this section,     the compensation to be paid, including any costs or interest related to it shall be determined in accordance with Part III.

             (8)  The arbitration tribunal shall consider in its determinations further to subsection (7) whether the proponent has dealt fairly and in good faith with the landowner or claimant.

PART III
DETERMINATION OF COMPENSATION

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Negotiated agreement not precluded by arbitration

      15. (1) This Part governs the operations of the arbitration panel under the authority of the Act.

             (2)  Notwithstanding another provision of this Part, the parties may, at any time, negotiate an agreement as to compensation owing for or related to an expropriation under the Act and these regulations, whether or not a hearing under this Part has begun.

             (3)  Where an agreement referred to in subsection (2) is reached and that agreement is approved under paragraph 22(2)(a) of the Act, a proceeding under this Part is terminated.

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Arbitration panel established

      16. (1) Under the authority of section 24 of the Act, there is appointed an arbitration panel for the purpose of determining compensation for or related to an expropriation under the Act.

             (2)  The Lieutenant-Governor in Council shall appoint one person as chairperson of the arbitration panel and one person as vice-chairperson of the arbitration panel.

             (3)  Persons appointed under subsection (2) shall be members in good standing under the Law Society Act, 1999.

             (4)  In the absence of the chairperson, the vice-chairperson has and may exercise the powers of the chairperson and shall perform his or her duties.

             (5)  The Lieutenant-Governor in Council shall appoint at least 10 persons, including the chairperson and vice-chairperson, who shall serve as members of the arbitration panel.

             (6)  A member of the arbitration panel shall serve for a period of 3 years and is eligible to be reappointed.

             (7)  Where a member of the arbitration panel resigns or, due to absence, incapacity or other cause, is unable to carry out his or her duties as a member, the Lieutenant-Governor in Council shall appoint a person in his or her place who shall serve for the remainder of the term of the member being replaced.

             (8)  The members of the arbitration panel shall be paid remuneration and expenses related to carrying out their duties at a rate set by the Lieutenant-Governor in Council.

             (9)  Notwithstanding subsection (6), a person continues to be and may serve as a member of the arbitration panel until he or she is reappointed or replaced.

           (10)  Notwithstanding subsection (6), of the members of the arbitration panel first appointed

             (a)  the chairperson shall be appointed for a term of 3 years; and

             (b)  the vice-chairperson shall be appointed for a term of 2 years

and are eligible for re-appointment.

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Operation of arbitration panel and arbitration tribunal

      17. (1) The arbitration panel shall govern its own procedure subject to this Part.

             (2)  The chairperson of the arbitration panel shall appoint, from among members of the arbitration panel, arbitration tribunals which shall conduct hearings respecting compensation for or related to an expropriation under the Act and these regulations.

             (3)  An arbitration tribunal shall at all times have as a member the chairperson or vice-chairperson of the arbitration panel.

             (4)  Hearings by arbitration tribunals may be contemporaneous.

             (5)  An arbitration tribunal has, in relation to the hearing or determination of a matter, all the powers that are or may be conferred upon a commission under the Public Inquiries Act, 2006 .

             (6)  A decision of an arbitration tribunal shall be considered to be a decision of the arbitration panel.

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Types of hearings

      18. (1) A hearing may be oral, electronic or written.

             (2)  An arbitration tribunal shall determine the format, date and location of a hearing, and may consider the factors it determines are relevant in making that determination.

             (3)  Notwithstanding another provision of this section, where an arbitration tribunal receives direction under section 21 respecting the type of hearing required, it shall comply with that direction unless it is satisfied that there is good reason to vary it.

             (4)  A party may object to a determination under subsection (2) and an arbitration tribunal may decide upon the matter.

             (5)  Unless an arbitration tribunal otherwise directs, every application and reply shall be filed in writing with the arbitration tribunal, and the application and reply shall be verified by affidavit or statutory declaration of the party submitting it.

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Commencement of proceedings

      19. (1) A matter may be referred to the arbitration panel by a party by filing an application with the arbitration panel in the prescribed form.

             (2)  An application shall be in writing and shall contain the information required by the arbitration panel.

             (3)  Where the arbitration panel receives a copy of a notice of expropriation in accordance with subsection 13(4) and a matter has not been referred to the arbitration panel within a period of time that the arbitration panel considers reasonable, the arbitration panel may require that the proponent provide the information respecting compensation further to the expropriation that the arbitration panel considers necessary in the circumstances to determine whether compensation should be paid in accordance with subsection 16(4) of the Act.

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Notice

      20. (1) Where the arbitration panel receives an application under section 19 ,  

             (a)  the chairperson shall designate an arbitration tribunal to hear and determine the matter; and

             (b)  the arbitration tribunal shall direct the applicant to serve the notice of that application to other affected parties or other persons the arbitration tribunal considers necessary within 10 days of having received the application.

             (2)  Notwithstanding sub

 

 

 (1), where the arbitration tribunal considers it appropriate, the arbitration tribunal may itself serve the notice required by that subsection.

             (3)  The notice referred to in subsection (1) shall include the following information:

             (a)  the time, date and type of hearing to be held by the arbitration tribunal;

             (b)  a copy of the application; and

             (c)  a copy of the information required to be contained in an application under section 5 or 11 , as appropriate.

             (4)  A copy of the notice referred to in sub

 

 (2) shall also be given to the party making the application.

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Pre-hearing conference

      21. (1) Where a notice has been served under section 20 , an arbitration tribunal may direct the parties to appear in a pre-hearing conference to

             (a)  identify the parties;

             (b)  identify the issues in dispute;

             (c)  vary the type of hearing or the date of the hearing;

             (d)  agree to facts or other matters not in dispute;

             (e)  identify the witnesses the parties propose to call;

              (f)  estimate the number of days required for the hearing; and

             (g)  discuss other related matters including procedural matters and the possibility of a settlement.

             (2)  The chairperson or vice-chairperson may, before the commencement of a pre-hearing conference, direct that the parties produce documents to the arbitration tribunal and the parties on those terms that the chairperson or vice-chairperson may direct.

             (3)  The chairperson or vice-chairperson shall preside over the pre-hearing conference.

             (4)  The person presiding over the pre-hearing conference may direct that it be held in person or by means of the telephone or other telecommunication or electronic device that permits all parties participating in the conference to communicate with each other.

             (5)  The person presiding over the pre-hearing conference

             (a)  may vary the time, date or type of hearing to be held from that which was prescribed in the notice under section 20 and if so varied, shall provide a copy of the amended notice to the parties; and

             (b)  shall record all issues identified as being in dispute and any agreements which have been reached.

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Response by parties

      22. A party to a hearing shall, within 10 days of receiving notice under subsection 20 (1), file a response to that application in the manner required by the arbitration tribunal.

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Hearing of application

      23. (1) Within 21 days of receiving a response under section 22 , the arbitration tribunal shall hear the application in the manner it has determined.

             (2)  An arbitration tribunal may, as it considers appropriate, admit visual evidence or written evidence or both in its consideration of an application.

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Representation

      24. (1) A party may attend a hearing in person or through his or her representative or both a party and his or her representative may attend.

             (2)  A representative who is not legal counsel shall file with an arbitration tribunal a written confirmation of authorization to act for the party.

             (3)  Where a representative of a party changes, the party or his or her representative shall immediately notify the arbitration tribunal and the other parties.

             (4)  A notice given to a representative under this Part shall be considered to be a notice to the party for whom the representative acts.

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Extension or reduction of time periods

      25. An arbitration tribunal may, on its own motion or upon an application by a party, extend or reduce a time period prescribed in this Part, or postpone or adjourn a hearing or consideration of a matter, subject to section 28 of the Act.

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Confidential business information

      26. Upon an application of a party, an arbitration tribunal may hold a hearing in private where the hearing may disclose confidential or sensitive financial or commercial information and may further direct that any evidence of that nature be kept confidential.

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Recording, amendment or consolidation of proceedings

      27. (1) Proceedings by an arbitration tribunal shall be recorded electronically or in writing.

             (2)  An application or other document filed with the arbitration panel in connection with a proceeding under the Act may be amended by leave of the arbitration panel upon the terms and conditions that the arbitration panel may prescribe.

             (3)  The arbitration panel may, upon the terms that it considers necessary, direct that a matter or proceeding before the arbitration panel be consolidated with another matter or proceeding before the arbitration panel and it may issue the direction respecting the conduct of the consolidated proceeding that it considers advisable subject to section 28 of the Act.

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Dismissal of application

      28. An arbitration tribunal may dismiss an application for compensation without holding a hearing where

             (a)  the arbitration tribunal is satisfied that it does not have jurisdiction to hear the application; or

             (b)  the arbitration tribunal finds that

                      (i)  the reasons set out in the application do not support an arbitration under the Act and these regulations,

                     (ii)  the application is not made in good faith, or is frivolous or vexatious,

                    (iii)  the applicant did not make the required submissions to the arbitration tribunal, or

                    (iv)  the applicant has persistently and without reasonable grounds commenced proceedings before an arbitration tribunal that constitute an abuse of process.

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Costs

      29. Costs shall be awarded in writing by an arbitration tribunal in accordance with section 30 of the Act.

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Action barred

      30. An action or other proceeding does not lie against the arbitration panel or a member of the arbitration panel or an arbitration tribunal or a member of an arbitration tribunal for anything done or omitted to be done in good faith in the course of exercising a power or carrying out a duty under the Act or these regulations.

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Special case

      31. Where an arbitration panel refers a special case in accordance with section 25 of the Act, a copy shall be served on the parties.

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Appeal

      32. (1) Where a party appeals a decision of the arbitration panel in accordance with the Act, a copy of the notice of appeal shall be served on the arbitration panel and the other parties to the proceeding.

             (2)  A decision referred to in subsection (1) shall include, in accordance with subsection 17(5), a decision of an arbitration tribunal.

PART IV
PAYMENT INTO TRUST

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Costs and interest

      33. (1) Where a proponent places funds into trust in accordance with section 33 of the Act, the proponent shall

             (a)  determine the trustee to whom funds may be entrusted; and

             (b)  bear the costs of maintaining the trust.

             (2)  Costs of maintaining the trust shall not be deducted from the funds which have been placed into trust.

             (3)  Interest which accrues on funds paid into trust under section 33 of the Act shall be the property of the proponent maintaining the trust.

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Payment into trust

      34. (1) Where a proponent makes a payment into trust in accordance with section 33 of the Act, the proponent shall

             (a)  immediately give notice of that payment to the expropriating authority, including full details of the amount paid and the reason for making that payment; and

             (b)  provide the expropriating authority with a copy of a receipt from the trustee evidencing that payment.

             (2)  The trustee shall provide to the expropriating authority all information respecting the occurrence of the following within 7 days of the date of the occurrence:

             (a)  where money is paid out to a person under section 36 of the Act;

             (b)  where there is a refusal to pay money out to a person under section 36 of the Act;

             (c)  where an application is made by a person under section 37 of the Act and of the outcome of it; and

             (d)  where compensation is disposed of under section 44 of the Act or compensation and interest become the property of the proponent under section 46 of the Act.

PART V
LAND USE AND PERMITTING

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Permit

      35. (1) Unless otherwise specified, a permit issued by the minister under this Part may be a permit for use or development of land.

             (2)  A permit for the development of land under this Part includes the necessary use of that land for the purpose of that development.

             (3)  The minister may prescribe terms and conditions of a permit under this Part, which may include a requirement for access to the land by the minister or his or her designate for the purpose of determining compliance with the permit, the Act and these regulations.

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Application

      36. (1) An application for a permit under subsection 55(3) of the Act shall be made to the minister in the prescribed form.

             (2)  An applicant shall provide with his or her application those plans and specifications that the minister may require.

             (3)  The minister shall, on request, supply to every applicant a copy of the application form referred to in subsection (1) and a description of the plans, specifications and drawings required to be provided with the application.

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Compatible use

      37. (1) The minister, following consultation with the holder of the transmission corridor under subsection 55(4) of the Act, may grant either approval in principle or a permit if, after considering an application, the minister is satisfied that the proposed use or development conforms to the Act, these regulations and all other applicable provincial legislation, and the minister shall consider

             (a)  the topography, physical condition, amenity and natural features of the land;

             (b)  the provision or future provision of services;

             (c)  the use or the proposed use of the land and the use or the proposed use of the land in the immediate vicinity;

             (d)  the number, location, convenience and safety of accesses;

             (e)  where a highway is proposed, the protection of the highway as a safe and convenient traffic way;

              (f)  the impact on the transmission corridor or infrastructure;

             (g)  the design, location and construction of the proposed development;

             (h)  where water and sewage disposal is proposed, the adequacy of the method, and the suitability of the land for the type of water and sewage disposal proposed;

              (i)  the adequacy and suitability of the methods proposed for the disposal of waste material, if required; and

              (j)  the shape and size of each lot or parcel of land,

and shall consult with all government departments, agencies, officials and persons considered necessary with respect to these or other considerations.

             (2)  Where approval in principle is granted under these regulations, it shall

             (a)  be subject to the subsequent approval by the minister of the details and conditions as may be listed in the approval in principle; and

             (b)  specify that a further application for approval of those details and conditions shall be received not later than one year from the grant of the approval in principle.

             (3)  The minister may

             (a)  attach to an approval in principle or a permit those conditions required to ensure that the proposed use or development is made suitable for the purpose it is intended to serve; and

             (b)  may permit the use or development for a limited time as considered necessary.

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Permit for use

      38. Where the minister issues a permit for use under this Part, the term of that permit shall be set by the minister but the permit may be cancelled in accordance with section 40.

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Permit for development

      39. (1) A permit for development is valid for a maximum period of 5 years provided that the development complies with the conditions stipulated in the permit.

             (2)  Failure of the permit holder to develop in accordance with the terms and conditions of the permit renders the permit null and void.

             (3)  Development shall be carried out in accordance with the plans submitted as part of the application, if any, and approved by the minister and any conditions attached to the permit, and any modifications to those plans after an permit has been issued shall be approved by the minister.

             (4)  Where a permit for development has been issued by the minister but

             (a)  the development is abandoned by the permit holder;

             (b)  the development is not fully executed according to the conditions of the permit; or

             (c)  the permit is cancelled due to a contravention of it, or of the Act or these regulations,

or where a permit expires, the minister may order the permit holder to remove all buildings or erections above ground, to cover or fill all wells or excavations, landscape as may be necessary to prevent erosion and to remove all accesses, or to do any of these things or other things which the minister may determine necessary in the circumstances, and the permit holder shall carry out the order of the minister and shall put the site in a clean and sanitary condition to the satisfaction of the minister.

             (5)  Where development has been completed in accordance with a permit for development under this section, that permit for development shall, without further application by the permit holder, be considered to be a permit for use under this Part.

             (6)  Notwithstanding subsection (5), the minister may, in his or her discretion, require a permit holder to apply for a permit for use  under this Part where the minister considers it appropriate in the circumstances.

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Cancellation of permit

      40. Notwithstanding another provision of this Part, the minister may cancel a permit where

             (a)  the use or development is no longer consistent with the original approval;

             (b)  there is a failure by the holder to comply with the Act; these regulations or any terms and conditions attached to the permit; or

             (c)  the minister determines that the development or use unnecessarily interferes with the use of the transmission corridor by the permit holder.

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Prior development

      41. Nothing in these regulations shall apply to prevent the minister from issuing a permit in accordance with Part IV of the Act, provided that

             (a)  use or development was commenced before the application of these regulations; and

             (b)  development is completed within a reasonable time after commencement.

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Other prescribed purposes

      42. A person may apply for a permit in accordance with paragraph 55(3)(c) of the Act for one or more of the following purposes:

             (a)  commercial use;

             (b)  agricultural use;

             (c)  personal use; or

             (d)  any other use approved by the minister.

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Repeal

      43. The Expropriation Negotiation and Application Regulations, Newfoundland and Labrador Regulation 58/13, are repealed.

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Schedule

Notice of Expropriation

The following provisions are required to be contained in every notice of expropriation:

              1 .  A reference to the statutory authority under which the expropriation is occurring, including the section of the Act.

              2.   A description of the land to be expropriated in the form of a survey or other description acceptable to the minister.

              3 .  A statement or description of the nature of the interest being expropriated in the land concerned.

              4 .  A statement as to the period of time that must pass before title to the expropriated land will vest in the proponent for whom it is being expropriated.

              5 .  The name and address of the proponent for whom it is being expropriated.

              6.   A statement that a person claiming to have an interest in land expropriated or detrimentally affected should submit details of that persons claim for compensation, of the estate or interest being claimed in the lands expropriated or detrimentally affected and of every charge, lien or encumbrance that the person is aware of to which the lands concerned are subject and documents in that person's possession or available to that person related to that information to the named proponent at the proponent's stated address by the date set out in the notice of expropriation.

              7 .  The signature of the minister responsible for effecting the expropriation concerned.

              8 . A statement describing how an application may be made to the arbitration panel in the absence of an agreement respecting compensation.

              9 .  A statement indicating that if no application is made to the arbitration panel, in the absence of an agreement respecting compensation, the arbitration panel may determine compensation under the authority of section 16 of the Act.