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This is not an official version. POINT IN TIME |
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| January 19, 1996 to May 21, 2002 |
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Repealed on
May 22, 2002 RSNL1990 CHAPTER C - 42 CROWN LANDS ACT Amended: 1991 c36 s76; 1995 c13 s5; 1995 c37 s20 CHAPTER C-42 AN ACT RESPECTING
PART I
PART II
PART III
PART IV Short title 1. This Act may be cited as the Crown Lands Act. Definitions 2. In this Act (a) "control survey marker" means a marker which is installed in the ground by authority of the minister and the location of which is, or is proposed to be, derived from the Geodetic Survey of Canada; (b) "court" means the Trial Division; (c) "Crown lands" means (i) all lands within the province except (A) lands that may be in the use or occupation of a department of the government of the province or of an officer or employee of the government of the province in connection with his or her employment, (B) lands that may have been lawfully set apart or appropriated for public purposes, and (C) lands lawfully alienated from the Crown, and (ii) lands considered to be Crown lands under section 88; (d) "department" means the department of the government presided over by the minister administering the Parts or provisions of this Act in which the reference to department occurs; (e) "judge" means a judge of the court; (f) "mineral" has the meaning ascribed to it in the Mineral Act; (g) "minister" means (i) if this Act is to be administered by 1 minister of the Crown only, the minister designated by the Lieutenant-Governor in Council to administer this Act, or (ii) where the Lieutenant-Governor in Council considers it advisable that some of the Parts or provisions of this Act be administered by 1 minister of the Crown and some by another minister of the Crown, the minister or ministers designated by the Lieutenant-Governor in Council to administer the Part or provisions of this Act in which the reference to minister occurs; (h) "surface rights" means land lawfully held by a person other than the Crown where the minerals, limestone, granite, slate, marble, gypsum, marl, clay, sand, gravel, a building stone, volcanic ash, coal, oil, natural gas or salt on or under it are reserved to the Crown; and (i) "surveyor" means a surveyor who is a registered member of the Association of Land Surveyors created by the Land Surveyors Act or a surveyor, not so being a member, who can lawfully be employed to make the survey in question. RSN1970 c71 s2; 1973 No37 Sch Fees 3. The Lieutenant-Governor in Council may by regulation prescribe the fees to be paid under this Act, except where specifically set out in the Act. RSN1970 c71 s3 PART I Rep. by 1991 c36 s76 4. [PART I - sections 4 - 18 Rep. by 1991 c36 s76] Rep. by 1991 c36 s76 5. [PART I - sections 4 - 18 Rep. by 1991 c36 s76] Rep. by 1991 c36 s76 6. [PART I - sections 4 - 18 Rep. by 1991 c36 s76] Rep. by 1991 c36 s76 7. [PART I - sections 4 - 18 Rep. by 1991 c36 s76] Rep. by 1991 c36 s76 8. [PART I - sections 4 - 18 Rep. by 1991 c36 s76] Rep. by 1991 c36 s76 9. [PART I - sections 4 - 18 Rep. by 1991 c36 s76] Rep. by 1991 c36 s76 10. [PART I - sections 4 - 18 Rep. by 1991 c36 s76] Rep. by 1991 c36 s76 11. [PART I - sections 4 - 18 Rep. by 1991 c36 s76] Rep. by 1991 c36 s76 12. [PART I - sections 4 - 18 Rep. by 1991 c36 s76] Rep. by 1991 c36 s76 13. [PART I - sections 4 - 18 Rep. by 1991 c36 s76] Rep. by 1991 c36 s76 14. [PART I - sections 4 - 18 Rep. by 1991 c36 s76] Rep. by 1991 c36 s76 15. [PART I - sections 4 - 18 Rep. by 1991 c36 s76] Rep. by 1991 c36 s76 16. [PART I - sections 4 - 18 Rep. by 1991 c36 s76] Rep. by 1991 c36 s76 17. [PART I - sections 4 - 18 Rep. by 1991 c36 s76] Rep. by 1991 c36 s76 18. [PART I - sections 4 - 18 Rep. by 1991 c36 s76] Leases of water powers 19. The Lieutenant-Governor in Council shall have the power to lease water power for the term of years and subject to the rent and conditions that are set out in this Part. Data to be provided by the applicant 20. (1) A person wishing to obtain a lease of a water power shall make application to the minister setting out the following facts: (a) the name of the applicant; (b) the mailing address and occupation or description of the applicant; (c) the name or a clear description of the river, lake or other watercourse from which water is to be diverted or used; (d) the place where the water is to be diverted from or in the watercourse, located where possible by reference to some point already established by Crown lands surveyors, or by reference to some unmistakable natural feature and the place where the water is to be returned or released similarly located; (e) the maximum quantity of water, expressed in cubic metres per second, which it is estimated will be ultimately diverted or used under the licence applied for; (f) the estimated average head in metres which will be available for the production of power according to the plan of development proposed; (g) the estimated minimum amount of energy expressed in horsepower which will be developed on the turbine shaft or other water driven motor device within 5 years from the date of the application or within the other period that the applicant may state to be required for the completion of his or her initial development; (h) the estimated maximum amount of energy expressed in horsepower which it is estimated will ultimately be developed on the turbine shaft or other water driven motor device from the waters applied for; (i) briefly, the character and extent of all principal works which it is proposed to construct for diverting, conveying or using the water or water power, including dams, raceways, canals, tunnels, pipelines and other water conduits, power houses, mills and transmission lines; in reference to every dam there shall be given its approximate maximum length and height, also its proposed type and the material to be used in its construction; (j) where storage is involved, the location of each lake, basin or other place in which it is wished to store water; and for each place the approximate number of square metres of land which it is proposed to flood, the approximate area in square metres of the surface of the reservoir when filled, the estimated vertical storage range in metres, and the total capacity of storage contemplated in cubic metres; (k) a reasonably accurate description and the area in square metres of the lands which will be required to be occupied or used in the construction, maintenance or operation of the proposed works, noting separately lands required for rights of way and lands which are to be flooded (i) within Crown lands, (ii) within privately owned lands; (l) a preliminary plan or sketch with scale so selected as to show upon a single sheet the entire project applied for, with the approximate location of all the principal items; (m) the nearest neighbouring works or structures completed or in the course of construction, both above and below the place of the proposed diversion, for diverting or using water for a purpose from the same source of supply, and the approximate distance and direction of each such works from the proposed works; and the names and locations of other works or structures, including bridges, railways and canals, which might affect or be affected by the construction, maintenance or operation of the proposed works; (n) the approximate discharge in cubic metres per second, at or near the place of diversion of the river, lake or other source from which the water is to be diverted at high, medium and low water stages respectively, also copies of existing measurements in the applicant's possession of the flow of the stream and a reference to all other measurements of which the applicant has knowledge; (o) whether a chemical, mechanical or other fouling matter is proposed to be discharged from works into the stream, and if so, the nature and probable quantity of the fouling matter; (p) whether and where ladders to permit of the passage of salmon and other fish can be constructed in conjunction with the proposed works, if the works would otherwise prevent the passage, and the plan and description of such ladders; (q) briefly, an outline of the undertaking in respect of which the licence is desired, including the use to which the power is to be applied, a sale, delivery or transfer of the power to other than the applicant which is contemplated, the territory within the sale, delivery or transfer is to be exercised, the probable demand for power within the territory and an estimate of the capital cost of the entire undertaking; (r) the financial standing of the applicant with reference to his or her ability to carry out the proposed undertaking. (2) The applicant, when requested to do so by the minister, shall file an affidavit setting out the facts with respect to paragraph (1)(r) that the minister may require, which affidavit will be treated as confidential. (3) Where the applicant is an incorporated company, the statement shall, in addition to the information required by subsection (1), set out (a) the names of the directors and officers of the company, and their places of residences; (b) the head office of the company in the province; (c) the amount of capital authorized, the amount of subscribed, and of paid-up capital, specifying in regard to the latter, (i) how much has been paid in cash, and (ii) in what manner the balance has been paid for; (d) the proposed method of raising further funds, if required, for the construction and operation of the proposed works; and (e) copy of the special act of incorporation or memorandum and articles of association and a statement setting out the particular sections which authorize the company to make application and to carry out the proposed undertaking. (4) Where the applicant is a municipality, town, village or other incorporated area, the statement shall, in addition to the information required by subsection (1), set out (a) the location, area and boundaries of the municipality, town, village or other incorporated area; (b) the approximate number of its inhabitants; (c) the present indebtedness of the municipality, town or village or other incorporated area and its borrowing limit; (d) a certified copy of a by-law or resolution passed by the municipality, town, village or other incorporated area respecting the application or the undertaking to which the application relates; and (e) a certified copy of an enabling Act or other statutory provision authorizing the municipality, town, village or other incorporated area to engage in the proposed undertaking, or of a governmental or other authorization or permission in the case required. (5) Where the application is refused by the Lieutenant-Governor in Council the data referred to in this section shall be returned to the applicant upon request. Elevations 21. All elevations given in connection with the plans or other information filed by an applicant should be referred, where possible, to mean sea-level datum. Minister may require additional information 22. The minister may, while an application is pending, irrespective of other requirements of this Act, call for additional plans, descriptions, measurements, specifications or other data, whether related directly or indirectly to the proposed works and undertaking, that he or she considers necessary, and the information shall be provided by and at the expense of the applicant. Notice of application and hearing of objections 23. (1) Upon the filing by the applicant of the data that in the opinion of the minister are necessary to a clear understanding of the proposed undertaking, the minister shall publish, by and at the expense of the applicant, a notice of application in at least 1 issue of theGazette and a newspaper published and circulating in the province, and in more issues where the minister considers it advisable. (2) The notice shall be marked at the top in plain letters "Water Power Application", and shall be in a form approved by the minister, and shall give the following information (a) name and address of applicant; (b) date of application; (c) name or clear description of source of supply; (d) place of diversion clearly described; (e) maximum horsepower capacity of proposed plant; (f) nature of the undertaking and proposed utilization of the power; (g) a statement that the application has been filed with the minister, and that protests or objections may be filed by an interested party with the minister; (h) if storage or poundage of water is contemplated, the place of storage, the capacity of the intended reservoir, and a general description of the lands which will be flooded; (i) other information that the minister may require to be inserted. (3) Immediately after the publication of notices has been completed, the applicant shall file proof of the publication, the proof to be in the form of an affidavit satisfactory to the minister, to be accompanied by a copy of the notice as published. (4) Where, because of protests or objections being filed, or for other reasons, the minister considers that a hearing should take place before further proceedings, he or she shall designate a time and place for the hearing before the minister or shall name a person to preside over and conduct the hearing. (5) The hearing may be adjourned from time to time and the applicant may be permitted to continue the preparation of his or her plans and the carrying on of investigations that may be considered advisable. (6) The minister or person conducting the hearing shall make his or her findings in writing after which the minister shall submit the application and the findings and all the papers in connection with both to the Lieutenant-Governor in Council. Issue of interim licence 24. Upon the receipt of the application and of the findings of the minister regarding protests or objections, the Lieutenant-Governor in Council may, in his or her discretion, issue to the applicant an interim licence embodying the matters set out in the application and authorizing and requiring the applicant to begin within 1 year and to complete within a period specified in the interim licence, not exceeding 5 years, work upon the lines set out in his or her application. Deposit as guarantee of performance 25. (1) Within 60 days after being notified in writing by the minister of the issue of his or her interim licence, the interim licensee shall deposit with the minister the sums specified in this section as a guarantee deposit fund for the purpose of guaranteeing the performance and fulfilment by the interim licensee of the terms and conditions of his or her interim licence. (2) The amount of the guarantee deposit fund shall, in the case of a power undertaking, be calculated according to the horsepower capacity of the site as determined by the minister, according to the following scale: Each h.p. up to 1,000 h.p. ....................... $2.00 per h.p. The next 9,000 h.p. ....................... 1.00 per h.p. All over 10,000 h.p. ....................... 0.50 per h.p. (3) In the case of a storage undertaking the amount of the guarantee deposit fund shall be calculated on the estimated cost of the storage development as determined by the minister, according to the following scale: 5 p.c. on the 1st $100,000 of estimated cost. 2 1/2 p.c. on the next $900,000 of estimated cost. 1 p.c. on the amount above $1,000,000 of estimated cost. (4) The guaranteeing deposit required under this section shall in no case exceed $50,000; and may be in the form of 1 or more certified cheques upon a chartered bank approved by the minister. (5) The minister shall refund the deposit with accrued interest to the interim licensee as the actual construction work progresses, the 1st, 2nd and 3rd quarters of the deposit to be refunded when 1/4, 1/2, 3/4, respectively, of the initial development have been satisfactorily completed; the 4th quarter to be refunded when the final licence is issued. (6) The interim licensee shall present to the minister evidence of the satisfactory progress in the works to the stage required in compliance with the terms of his or her interim licence, in the form of a statutory declaration or otherwise that may be required. (7) In case of a dispute as to the satisfactory completion of the 1st, 2nd and 3rd quarters of the initial development, the decision of the minister upon the report of the government engineer shall be final. (8) If the interim licensee fails to comply satisfactorily with the terms of his or her interim licence, the guarantee deposit fund shall be forfeited to the Crown. Changes in plans 26. The interim licensee, before making a material change in the works constructed or under construction in pursuance of his or her licence or in the location authorized, shall submit a complete and satisfactory statement and plans of the proposed change to the minister, and shall not proceed until the proposed change has been authorized by the Lieutenant-Governor in Council. Access to works for purposes of inspection 27. The minister, the government engineer or an engineer or person authorized by either for the purpose shall have free access at all times to all parts of the lands being occupied or of the works being constructed by an interim licensee for the purpose of ascertaining whether the terms and conditions of the interim licence are being satisfactorily carried out by the interim licensee. Amendment of interim licence 28. The terms of an interim licence may be amended by a supplementary licence entered into between the Lieutenant-Governor in Council and the interim licensee; and plans and specifications previously approved may be amended with the written consent of the Lieutenant-Governor in Council, but the amendment shall affect only that portion specifically covered in the supplementary or amending licence, and shall in no case operate to alter or amend or be a waiver of another part, condition or provision of the original interim licence. Extension of time for construction 29. (1) The Lieutenant-Governor in Council may, upon satisfactory proof that the work of construction was begun within the time specified in the interim licence and for reasons of an engineering nature which could not reasonably have been foreseen by the applicant could not be completed within the period provided by the interim licence, grant the extension of time that may be considered expedient for the completion of the works. (2) An extension of time shall not be granted unless it is shown by a written report signed by the government engineer that the interim licensee has satisfactorily completed the construction of a substantial part of the initial development, and an extension of time shall not be granted for a longer period than 1 year, and a 2nd or subsequent extension of time shall not be granted unless it is shown by written report of the government engineer that the interim licensee has completed within the extension period previously granted a further substantial part of the initial development. Notice of completion of initial development 30. (1) When the interim licensee has completed his or her initial development and otherwise fulfilled the terms of his or her interim licence, he or she shall file in the office of the minister written notice of the completion and fulfilment. (2) When the notice referred to in subsection (1) is filed, the minister shall inspect and, where necessary, make a survey of the works constructed or used and the lands and waters used or occupied in connection with the undertaking. Issue of final licence 31. (1) Upon the completion of the initial development according to the plans previously approved and upon fulfilment and compliance otherwise with all the terms and conditions of his or her interim licence and of the provisions of this Part that are applicable to his or her case, the interim licensee shall be entitled to the issue in his or her favour by the Lieutenant-Governor in Council of a final licence authorizing the diversion, use or storage of water at the site in question for the development of energy from it, for the utilization of the energy, and for the occupation or use of the lands of the province which, in the Lieutenant-Governor in Council's opinion, are required for the proper maintenance and operation of the works. (2) The Lieutenant-Governor in Council may issue the licence covering the rights granted with respect to the diversion and use of the waters and with respect to the occupation and use of the lands which are to be granted in the form of 2 or more separate indentures, but if separate indentures are issued, they shall be executed concurrently, and the terms and conditions of each indenture shall be considered to be incorporated in all, and non-compliance with a term or condition in an indenture shall be taken to be non-compliance with the terms and conditions of all. (3) Upon the issuance of a final licence all rights held and obligations assumed under the interim licence shall cease. Terms of final licence 32. The final licence shall embody the terms which were set out in the interim licence and in an amending licence which may have been issued. Term of licence 33. (1) The term of a final licence shall not exceed 50 years from the time fixed in the original interim licence for the completion of the initial development, but a licence may be issued, subject to renewal upon the conditions provided in this section, for 1 or more further successive terms that may be specified in the licence but not exceeding in total 49 years. (2) Where the holder of a licence wishes to renew a licence granted under this Act containing a right of renewal, he or she shall give notice to the Lieutenant-Governor in Council not less than 1 year before the expiration of the term of the licence, and if the conditions of the licence have been complied with, the Lieutenant-Governor in Council may, by endorsement on the licence or notice in writing to the holder of the licence, renew the licence in accordance with the terms of it. (3) The Lieutenant-Governor in Council may refuse to renew a licence, but where the conditions of the licence have been complied with, the Lieutenant-Governor in Council shall not so refuse unless at least 6 months before the expiration of the licence he or she has given notice to the holder of the licence of the intention to do so. (4) Where the conditions of a licence have been complied with and the Lieutenant-Governor in Council has given notice of his or her intention to refuse to renew the licence, the Lieutenant-Governor in Council may, on expiration of the licence, without further proceedings, take possession of all works and erections constructed under the licence and of every thing owned or held by the licensee within the power system and used or useful in respect of the undertaking, subject to payment of compensation as provided in this section. (5) From the date of receipt of notice from the Lieutenant-Governor in Council under subsection (4) of the intention to refuse to renew a licence, the licensee shall not remove from the lands used or occupied under the licence or damage or destroy works or erections on the lands or anything owned or held by the licensee within the power system and used or useful in respect of the undertaking. (6) Compensation payable under subsection (4) shall be paid on the basis of the value of the undertaking as a going concern at the time of taking possession by the Lieutenant-Governor in Council. (7) Where the Lieutenant-Governor in Council and the holder of the licence are unable to agree upon the compensation to be paid within 6 months after the notice has been given by the Lieutenant-Governor in Council either party may refer the matter for determination by arbitration as provided in this section. (8) Where a matter is referred to arbitration under subsection (7), the Lieutenant-Governor in Council shall appoint 1 arbitrator and the licensee another and those 2 arbitrators shall appoint a 3rd, and the award of any 2 of them, signed by them, after hearing both parties and their witnesses as to compensation, shall be final. (9) Where either party neglects or refuses, upon being required by the other, to appoint an arbitrator within 10 days after being so required, or where the 2 arbitrators when so appointed cannot agree to the appointment of a 3rd within 10 days after their appointment, the court or a judge of the court shall, upon the application of either party, appoint an arbitrator for the party refusing, omitting or neglecting to make the appointment of the 3rd arbitrator, and the arbitrator when so appointed shall have the same power in all respects as if appointed by either party, or by 2 arbitrators. (10) TheArbitration Act applies to an arbitration under this section. (11) Where a licence is not renewed upon expiration of the original term, or of a further term for which it has been renewed, then all rights under the licence shall cease without further proceedings, and all lands entered upon, used or occupied under the licence shall immediately revert to the Crown, together with all permanent works and erections on the lands. RSN1970 c71 s36; 1977 c44 s1; 1986 c42 Sch B Rental 34. (1) The annual licence rental shall begin to run not later than from the date fixed in the original interim licence for the completion of the initial development whether it has been completed or not and extensions of time shall not affect this provision. (2) The 1st payment of annual rental shall be for the part of the year embraced between the date fixed for the completion and the end of the then current calendar year and subsequent rental payments shall cover the rentals for each successive calendar year or the part of the calendar year during which the licence is in force, or the licensee continues operations. (3) A licensee shall, before April 1 following each year of the interim and final licence periods, submit all data required by the minister for the determination of his or her rental for the preceding calendar year. (4) The minister shall immediately proceed with the preparation of statements of rentals due for the calendar year and shall give the licensee notice of the rentals due and the rentals shall be payable within 60 days after the giving of the notice. (5) If rentals are not paid when due, 10% of the amount of the rentals shall be added, and the total amount shall bear interest compounded annually at 8% from the latest date until paid. (6) The rentals together with 10% added by way of penalty and interest as provided in subsection (5) shall be a 1st lien or charge upon the water power development, property, assets, rents and revenues of the licensee, and shall attach to the development, property and assets in priority to an encumbrance irrespective of change of ownership. (7) Where a rental remains unpaid for more than 1 year after the latest date when it becomes payable, the licensee shall again be given notice, and if not paid within 60 days after the notice has been given, the minister shall (a) request the Attorney General to sue in a court for the amount of the rental together with the 10% added and interest as provided in subsection (5), as a debt due to the Crown, and the production of a written statement by the minister of the sums so payable shall be, in the absence of evidence to the contrary, evidence of such, and to supplement the action by garnishment proceedings against a person indebted to the licensee for the purchase of electrical energy or other product of the undertaking, or by proceedings to foreclose the lien referred to in subsection (1); or (b) take or initiate the action that is provided for general cases of default as set out in section 42. (8) The acceptance of rental shall not be or be considered to be a waiver of the terms or conditions which have been accepted by the licensee. (9) The rentals to be paid shall be as determined by general regulations of the Lieutenant-Governor in Council and published in the Gazette. Effectiveness of licence to authorize entry upon or use of lands 35. (1) A licence shall be valid and effective to authorize the entry upon or use or occupation of lands of the province only in the manner and to the extent and for the length of time that may be necessary for the purpose of constructing, maintaining and operating the works authorized to be constructed, maintained and operated under the licence. (2) Where, because of a change in the location of the works, or because of their non-user or abandonment, or for another reason, continued or further entry upon or the use or occupation of the lands in whole or in part for the purposes becomes, in the opinion of the Lieutenant-Governor in Council, unnecessary, the minister shall give the licensee written notice of the contemplated withdrawal of the lands and the reasons for it, and the lands may be withdrawn in whole or in part from the operation of the licence, by agreement of the parties. (3) Where the minister and the licensee cannot reach a satisfactory agreement as regards the contemplated withdrawal within 60 days after the giving of the notice, the minister may refer the matter to the court for determination. (4) The court after hearing the matter may make an order withdrawing the lands in whole or in part from the operation of the licence. Right to flood public lands 36. (1) Lands of the province required only for the purpose of flooding them, whether in connection with a storage reservoir or for regulating the flow of a stream or otherwise, shall be set out in the interim or final licence separately from the lands required for other purposes and a licence shall not be valid to convey a further use of the lands than the right of flooding them in the manner and to the extent and at the times that may be required for the purposes of the undertaking. (2) A grant of a right to flood lands of the province in connection with an undertaking shall be subject to the right of the Crown to grant additional liberty or privilege to a person to enter upon, use or occupy the lands: provided that the rights of the interim or final licence shall not, in the opinion of the Lieutenant-Governor in Council, be prejudicially interfered with by that grant. (3) A licensee shall, to the satisfaction of the minister, clear and keep clear from timber, brush and other materials all lands which are to be flooded. (4) Flooded lands shall not be fenced or otherwise enclosed unless the minister's consent in writing is first obtained. Lands forming part of bed of waters 37. (1) Lands forming part of the bed of a lake, river, stream or other watercourse, the use or occupation of which is required for the site of works authorized, or for the construction or the operation of works, shall be set out in the interim or final licence separately from lands required for other purposes, and an interim or final licence shall not convey an exclusive right in or to the use or occupancy of the lands, or a further right than may be required for the actual construction and operation of the works. (2) A grant of a right to use or occupy lands of the province forming part of the bed of a lake, river, stream or other watercourse shall be subject to the right of the Crown to grant additional liberty or privilege to a person to enter upon, use or occupy the lands provided that (a) the rights of the licensee shall not be prejudicially interfered with by that grant; and (b) the minister shall give the licensee notice of the intention to grant additional liberty or privilege and an opportunity of being heard. Roads or other public works not to be affected 38. (1) Roads, trails, telephone lines, buildings or other improvements that are the property of the Crown shall not be removed, altered or in any way affected by an interim or final licensee in the construction or operation of his or her works without the minister's consent in writing having been first obtained, and except upon the conditions that the minister may impose. (2) The minister, where he or she considers it necessary, may require the licensee to provide a bond for the satisfactory carrying out of the provisions of this section. Enforcement of full development of power to meet public demand 39. (1) Upon a report being made by the government engineer that a licensee has not developed the amount of power for which there is a public demand at remunerative prices and which could be reasonably developed from the flow of water granted under his or her licence or controlled by him or her, the Lieutenant-Governor in Council may order the licensee to develop and make available for public use the additional amount of power for which there is, in the opinion of the Lieutenant-Governor in Council, a public demand, up to the full extent possible from the amount of water granted under the licence and within a period to be fixed by the Lieutenant-Governor in Council, which period shall be not less than 2 years after the licensee or the person in charge of the existing works has been notified of the order. (2) Section 42 shall be applied where a licensee fails to comply with an order referred to in subsection (1). Increase in power development 40. Where a licensee wishes (a) to develop, sell, use or dispose of a greater quantity of power than authorized by his or her licence whether the increased disposal of power does or does not necessitate an addition to or alteration in the works; or (b) to use or dispose of a power in connection with his or her undertaking in a manner or for a purpose other than as provided in the licence, he or she must first apply to the Lieutenant-Governor in Council for a licence authorizing the additional development, sale, use or disposal or authorizing the use or disposal in another manner or for another purpose. 41. A licensee whose undertaking involves the sale, barter or exchange of the power authorized to be developed under his or her licence shall sell power to the Crown when so required by the minister at as low a price as is given to another consumer for a similar use at the same time and under similar conditions: provided that the request is within the capacity of the site and that the rights of another consumer then holding a binding contract for the delivery of power are not prejudiced. Proceedings in case of default of licensee 42. (1) Where a licensee, in the opinion of the Lieutenant-Governor in Council, has failed to observe or perform a term or condition which, under his or her licence or this Part, he or she is required to observe or perform, the Lieutenant-Governor in Council may, upon giving the licensee not less than 60 days' notice, refer the matter of the non-observance or non-performance to the court, and if the court finds that the licensee has failed in his or her obligations, it may (a) order specific performance by the licensee of the terms of the licence; (b) order the payment of a sum by way of liquidated damages for the licensee's failure to perform the terms. (2) Where after an order is given under paragraphs (1)(a) or (b) the non-observance or non-performance on the part of the licensee is continued, or if the licensee refuses or fails to comply satisfactorily with an order, or if the court considers that non-compliance of the licensee is of such a nature that the foregoing remedies are inapplicable, the court may (a) authorize a person immediately and without further proceedings to take possession of all works, lands and properties whether real or personal, owned or held by the licensee within the power system and used or useful in respect of the undertaking, including books, statements, accounts, papers and records appertaining to the undertaking and to operate, manage and control the undertaking, and to do all other things required to be done in the conducting or carrying on of the undertaking, until (i) a sufficient sum has been accumulated exclusive of all operating expenses and all costs of taking possession to liquidate the sums payable by the licensee and interest on it and the cost of a proceeding connected with it, or (ii) other conditions are carried out that may, in the opinion of the court, have been required to satisfy the terms of the licence or regulations; (b) order that upon a certain date not earlier than 12 months after the date of the order the licence shall be cancelled, and that not earlier than 6 months from the date of the order, and not later than the termination of the period fixed for cancellation, the lands, works and properties, whether real or personal, owned or held by the licensee, and used or useful in respect of the power development, shall be sold at execution sale. (3) Where an execution sale is ordered as set out in paragraph (2)(b), the Lieutenant-Governor in Council upon the advice of the minister shall fix an upset price below which the properties may not be sold. (4) The minister shall prepare a stipulation relative to the rights to be acquired and obligations to be assumed by the successful bidder, and a person shall not be permitted to bid at the sale unless he or she (a) has previously agreed in writing to sign and abide by the terms of the stipulation; (b) has been accepted by the minister as a bidder; and (c) has deposited, by way of guarantee, a sum equivalent to 1/2 of that required of interim licensees under section 25. (5) The guarantee deposit referred to in paragraph (4)(c) shall be returned to unsuccessful bidders immediately upon termination of the sale; and the successful bidder's deposit may be returned as soon as in the opinion of the court the transfer has been satisfactorily completed and operation of the works and undertaking is being satisfactorily conducted. (6) Where there is not a satisfactory buyer at the 1st execution sale, a 2nd sale shall be held after a lapse of 4 months, under the same conditions as the 1st sale, except that the upset price of the sale shall not exceed the sum which represents the obligations of the licensee to the Crown as fixed by the court and if no bids are received equal to or in excess of this sum from accepted bidders, the licensee shall forfeit all his or her rights, and the works and undertaking shall become the property of the Crown without any compensation to the licensee. (7) A surplus arising out of a sale under this section, above the sum which in the opinion of the court will satisfy the obligations of the licensee, shall be repaid to the licensee. (8) Where the licence has been cancelled under paragraph (2)(b) and where the procedure provided in subsections (3) to (7) has not been completed, the court may make orders with respect to taking over and operating the works and undertaking of the licensee that it may consider equitable under all the circumstances. Acceptance of and undertaking to perform licence 43. (1) Before a licence is executed the minister shall submit to the prospective licensee a draft of the proposed licence and shall secure from the licensee an acceptance of it and an undertaking to observe and fulfil all the terms and conditions which under the licence and under this Part the licensee is required to observe or fulfil. (2) The acceptance and undertaking of the licence shall be made to bind the executors, administrators and assigns, or in the case of a corporation, the successors and assigns of the prospective licensee. Alteration of dates of payment of rentals, etc. 44. Where the minister considers it advisable in order to systemize the accounting work of the department to change the times of payment of rentals or other sums payable under an existing licence or other concession, he or she may, by giving the licensee 60 days' notice in writing, readjust the times of payment: provided that the total payment to be made under the licence or other concession is not increased. Temporary disposition of lands 45. (1) Where (a) lands have been reserved by the Lieutenant-Governor in Council as being valuable for the development of a water power to be dealt with only under this Part but cannot, in the opinion of the Lieutenant-Governor in Council, be utilized in connection with the water power development for a number of years; and (b) in the opinion of the Lieutenant-Governor in Council, the granting of temporary leases or licences of occupation for other purposes will not interfere with the purposes of the reservation, applications for the temporary use and occupation of lands for other purposes may be considered by the Lieutenant-Governor in Council and conditional leases or licences granted by him or her. (2) It shall be stipulated in every conditional lease or licence that when, in the opinion of the Lieutenant-Governor in Council, the lands are required in connection with the water power development the Lieutenant-Governor in Council may, on giving the conditional lessee or licensee not less than 6 months' notice of the cancellation in writing signed by him or her, cancel the lease or licence and determine the rights conferred by it, and repossess on behalf of the Crown the lands and all improvements on the lands without compensation being paid to the conditional licensee or lessee. Rules of procedure 46. The minister may make the supplemental rules regarding (a) the nature of plans and specifications to be filed; (b) the prescribing of forms to be used; and (c) the procedure to be followed in connection with various inquiries and matters arising under this Part that may, in his or her opinion, be desirable. Grants of easement 47. (1) The Lieutenant-Governor in Council may grant, on the terms that he or she may consider expedient, to the owner or lessee of a water power held otherwise than under this Act easements along highways and over Crown lands for transmission lines and easements or licences for the raising of the level of the waters in a lake or pond to a level required for the efficient development of it. (2) The Lieutenant-Governor in Council may make regulations, which shall be published in theGazette, imposing penalties for breach of conditions imposed under subsection (1) for the purpose of securing the proper construction of works and the safety of the public, which penalties shall be recoverable on summary conviction and shall not exceed the sum of $200 for an offence and, in default of payment, imprisonment not exceeding 6 months. Construction of dams to be approved by government engineer 48. (1) A person shall not begin the construction or replacement of a dam for the diversion or storage of water in connection with the development of water power under rights acquired under this Act or otherwise unless (a) he or she has delivered to the government engineer plans showing the location of the dam in relation to the surrounding land and particulars of its length, height and width and of its type and the material to be used in it; (b) he or she has delivered to the government engineer further plans and particulars that the government engineer may require; and (c) the government engineer has in writing certified that in his or her opinion the proposed dam will be reasonably safe, strong and durable. (2) The construction or replacement of a dam shall be in accordance with the plans and particulars referred to in subsection (1). (3) A person violating or failing to conform with this section is liable to a fine not exceeding $5,000 recoverable in the court by proceedings in the name of the Attorney General. (4) The court may, by injunction, restrain a person violating or failing to conform with this section from proceeding with any construction or replacement unless it is in accordance with this section and the court may order the person within the time that may be limited by the order to remove a dam or to repair or replace the dam to the satisfaction of the government engineer. Small water powers 49. In the case of applications for small water powers the capacity of which, in the opinion of the Lieutenant-Governor in Council, upon the report of the government engineer, does not exceed, under average usable flow conditions, 100 horsepower and which are to be used for the direct driving of a water-wheel or other device connected with a saw mill or similar small mechanical establishment and not primarily for the development of electrical power, the Lieutenant-Governor in Council may on the recommendation of the minister make regulations in relation to applications and licences and the rates of rental to be paid therefor: provided, however, the provisions of paragraphs 20(1)(a), (b), (c), (d), (e), (i), (j), (k), (l), (o), (p), (q), subsections 20(2) and (3), sections 23, 33 and 38 shall not be dispensed with. Assurances of land and rights in land 50. (1) The Lieutenant-Governor in Council may, (a) upon the terms and conditions; and (b) for the consideration, including the royalties and rentals, that he or she may prescribe, assure to a person land or rights in land belonging to the Crown, and not then granted, leased or otherwise alienated to another person or agreed to be so granted, leased or alienated, that may be necessary for works established before October 2, 1964, by the person for the purpose of developing, generating or transmitting hydro-electric power or energy. (2) An assurance granted under this section may be by way of grant, lease, licence or permit as the Lieutenant-Governor in Council may prescribe. (3) Nothing in this section shall be considered to confer, or to empower the Lieutenant-Governor in Council to confer, on a person the right to (a) develop; or (b) establish works, other than those already established on or before October 2, 1964, for the purpose of developing more hydro-electric power or energy than that being developed or capable of being developed by the works as established at the date. (4) [Rep. by 1995 c37 s20] (5) For the purpose of this section, "works" includes a building, plant, machinery, installation, material, dam, canal, device, fitting, apparatus, appliance or equipment established, acquired or utilized or useful for the development, generation or transmission of hydro-electric power or energy. RSN1970 c71 s53; 1995 c37 s20 PART III Rep. by 1991 c36 s76 51. [Sections 51 - 83 Rep. by 1991 c36 s76] Rep. by 1991 c36 s76 52. [Sections 51 - 83 Rep. by 1991 c36 s76] Rep. by 1991 c36 s76 53. [Sections 51 - 83 Rep. by 1991 c36 s76] Rep. by 1991 c36 s76 54. [Sections 51 - 83 Rep. by 1991 c36 s76] Rep. by 1991 c36 s76 55. [Sections 51 - 83 Rep. by 1991 c36 s76] Rep. by 1991 c36 s76 56. [Sections 51 - 83 Rep. by 1991 c36 s76] Rep. by 1991 c36 s76 57. [Sections 51 - 83 Rep. by 1991 c36 s76] Rep. by 1991 c36 s76 58. [Sections 51 - 83 Rep. by 1991 c36 s76] Rep. by 1991 c36 s76 59. [Sections 51 - 83 Rep. by 1991 c36 s76] Rep. by 1991 c36 s76 60. [Sections 51 - 83 Rep. by 1991 c36 s76] Rep. by 1991 c36 s76 61. [Sections 51 - 83 Rep. by 1991 c36 s76] Rep. by 1991 c36 s76 62. [Sections 51 - 83 Rep. by 1991 c36 s76] Rep. by 1991 c36 s76 63. [Sections 51 - 83 Rep. by 1991 c36 s76] Rep. by 1991 c36 s76 64. [Sections 51 - 83 Rep. by 1991 c36 s76] Rep. by 1991 c36 s76 65. [Sections 51 - 83 Rep. by 1991 c36 s76] Rep. by 1991 c36 s76 66. [Sections 51 - 83 Rep. by 1991 c36 s76] Rep. by 1991 c36 s76 67. [Sections 51 - 83 Rep. by 1991 c36 s76] Rep. by 1991 c36 s76 68. [Sections 51 - 83 Rep. by 1991 c36 s76] Rep. by 1991 c36 s76 69. [Sections 51 - 83 Rep. by 1991 c36 s76] Rep. by 1991 c36 s76 70. [Sections 51 - 83 Rep. by 1991 c36 s76] Rep. by 1991 c36 s76 71. [Sections 51 - 83 Rep. by 1991 c36 s76] Rep. by 1991 c36 s76 72. [Sections 51 - 83 Rep. by 1991 c36 s76] Rep. by 1991 c36 s76 73. [Sections 51 - 83 Rep. by 1991 c36 s76] Rep. by 1991 c36 s76 74. [Sections 51 - 83 Rep. by 1991 c36 s76] Rep. by 1991 c36 s76 75. [Sections 51 - 83 Rep. by 1991 c36 s76] Rep. by 1991 c36 s76 76. [Sections 51 - 83 Rep. by 1991 c36 s76] Rep. by 1991 c36 s76 77. [Sections 51 - 83 Rep. by 1991 c36 s76] Rep. by 1991 c36 s76 78. [Sections 51 - 83 Rep. by 1991 c36 s76] Rep. by 1991 c36 s76 79. [Sections 51 - 83 Rep. by 1991 c36 s76] Rep. by 1991 c36 s76 80. [Sections 51 - 83 Rep. by 1991 c36 s76] Rep. by 1991 c36 s76 81. [Sections 51 - 83 Rep. by 1991 c36 s76] Rep. by 1991 c36 s76 82. [Sections 51 - 83 Rep. by 1991 c36 s76] Rep. by 1991 c36 s76 83. [Sections 51 - 83 Rep. by 1991 c36 s76] Construction, alteration or replacement of dams 84. (1) A person shall not construct, alter or replace, or begin the construction, alteration or replacement of a dam or carry out other work for the diversion or storage of water or the alteration of the natural flow or rate of flow of a stream, lake or waterway except with the prior written approval of the Lieutenant-Governor in Council. (2) A person seeking the approval of the Lieutenant-Governor in Council to carry out a work referred to in subsection (1) shall submit to the minister a written application in which he or she shall (a) set out the work that he or she proposed to carry out; (b) indicate the stream, lake or waterway in respect of which he or she proposes to carry out the work; (c) indicate the Crown lands which he or she requires for the purpose of carrying out the work and show that those lands are reasonably required for that purpose and that a grant, lease or licence of or to use those lands is not calculated to cause undue injury to the rights of others; (d) show that there is no adverse claim or other reason why the grant, lease or licence should not be issued; and (e) provide the other information that the minister may require. (3) The Lieutenant-Governor in Council may approve the carrying out of the work referred to in subsection (1) and may (a) attach to the approval the conditions that he or she considers appropriate; and (b) by grant, lease or licence vest in the person referred to in subsection (2) Crown lands, whether adjoining or under the stream, lake or waterway in respect of which the application was made under subsection (2). (4) The Lieutenant-Governor in Council may, on 6 months' notice without cause, or without notice where the person to whom approval has been given under subsection (3) has violated or failed to comply with a condition attached to the approval under paragraph (3)(a), (a) order that person to remove a dam referred to in this section within the time that the Lieutenant-Governor in Council may prescribe in the order and to restore the stream, lake or waterway and the land adjoining or under it as nearly as possible to the condition it was in before the dam was constructed; or (b) order that alterations or repairs in the dam be made in accordance with the order and that if those alterations or repairs are not carried out within the time specified in the order, the dam shall be removed. (5) Where a person to whom an order has been directed under subsection (4) fails to carry out that order within the time prescribed in the order, or if he or she cannot be found, the minister may carry out the order and recover the cost of the work from that person as a debt due the Crown. (6) Where the Lieutenant-Governor in Council makes an order under paragraph (4)(a) or carries out an order under subsection (5), he or she may by order cancel a grant, lease or licence issued under subsection (3) and from the date of the order the grant, lease or licence shall cease to the same effect as if it had never been issued and property belonging to the grantee, lessee or licensee which is on the land, if not removed within 1 month after the date of the order, belongs to the Crown. Rep. by 1991 c36 s76 85. [Sections 85 - 93 Rep. by 1991 c36 s76] Rep. by 1991 c36 s76 86. [Sections 85 - 93 Rep. by 1991 c36 s76] Rep. by 1991 c36 s76 87. [Sections 85 - 93 Rep. by 1991 c36 s76] Rep. by 1991 c36 s76 88. [Sections 85 - 93 Rep. by 1991 c36 s76] Rep. by 1991 c36 s76 89. [Sections 85 - 93 Rep. by 1991 c36 s76] Rep. by 1991 c36 s76 90. [Sections 85 - 93 Rep. by 1991 c36 s76] Rep. by 1991 c36 s76 91. [Sections 85 - 93 Rep. by 1991 c36 s76] Rep. by 1991 c36 s76 92. [Sections 85 - 93 Rep. by 1991 c36 s76] Rep. by 1991 c36 s76 93. [Sections 85 - 93 Rep. by 1991 c36 s76] PART IV Rep. by 1995 c13 s5 94. [Part IV - sections 94 - 100 Rep. by 1995 c13 s5] Rep. by 1995 c13 s5 95. [Part IV - sections 94 - 100 Rep. by 1995 c13 s5] Rep. by 1995 c13 s5 96. [Part IV - sections 94 - 100 Rep. by 1995 c13 s5] Rep. by 1995 c13 s5 97. [Part IV - sections 94 - 100 Rep. by 1995 c13 s5] Rep. by 1995 c13 s5 98. [Part IV - sections 94 - 100 Rep. by 1995 c13 s5] Rep. by 1995 c13 s5 99. [Part IV - sections 94 - 100 Rep. by 1995 c13 s5] Rep. by 1995 c13 s5 100. [Part IV - sections 94 - 100 Rep. by 1995 c13 s5] ŠEarl G. Tucker, Queen's Printer |