S.M. 2009, c. 5

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S.M. 2009, c. 5

Bill 3, 3^rd Session, 39^th Legislature

The Forest Amendment Act

(Assented to June 11, 2009)

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:

C.C.S.M. c. F150 amended

The Forest Act is amended by this Act.

2(1)

Section 1 is amended

(a) by renumbering it as subsection 1(1);

(b) by repealing the definitions "forest management berth", "forest management unit", "option licence", "pulpwood berth", "sustained yield capacity" and "sustained yield management";

(c) by replacing the definition "officer" with the following:

"officer" means

(a) a person appointed as an officer under subsection 35(1),

(b) a peace officer appointed under an Act of the Legislature or the Parliament of Canada, or

(d) in the definition ""forest management licence", "timber sale agreement", "timber permit"", by striking out "or the regulations,"; and

(e) by adding the following definitions:

"forest management licence area" means any area for which a forest management licence is granted under this Act for the purpose of providing timber on a sustained yield basis to a wood-using industry; (« zone de gestion forestière visée par une licence »)

"timber cutting right" means a forest management licence, timber sale agreement, timber permit or other authority under which a person is granted a right to cut and remove Crown timber; (« droit de coupe de bois »)

2(2)

The following is added after subsection 1(1):

Reference to "Act" includes regulations

1(2)

In this Act, a reference to "this Act" includes the regulations made under this Act.

Section 5 of the French version is amended by adding ", agents" after "cadres".

Section 6 is amended

(a) in the section heading, by striking out "of premises";

(b) in the French version, by striking out "cadre" and substituting "agent"; and

(c) by striking out everything after "and for the purpose of" and substituting "ensuring compliance with this Act, may inspect any land that is the subject of a timber cutting right or any premises in respect of which a licence or permit under this Act has been issued."

Section 7 is amended

(a) by replacing the section heading with "Prohibited conduct for department employees";

(b) by striking out "No officer, clerk," and substituting "Except when permitted under the regulations, no officer"; and

(c) by striking out "timber berth or timber licence, or" and substituting "timber cutting right or other".

Subsection 11(1) is amended in the part before clause (a) by striking out "including forest management licences, timber sales and timber permits".

Section 13 is repealed.

Section 15 is replaced with the following:

Withdrawal of land subject to timber cutting right

If the minister is of the opinion that a portion of the land that is the subject of a timber cutting right is not required for the proper utilization of the right, the minister may withdraw that portion of land from the timber cutting right by written notice to the holder of the right.

The following is added after section 15:

No commercial timber cutting rights in parks

15.1(1)

No commercial timber cutting right may be issued that authorizes logging on land in a provincial park.

Withdrawing existing timber cutting rights in parks

15.1(2)

Every commercial timber cutting right in existence on the coming into force of this section that authorizes logging on land in a provincial park is hereby amended to remove the land in the provincial park from the timber cutting right.

Exception for Duck Mountain Provincial Park

15.1(3)

This section does not apply to Duck Mountain Provincial Park.

Definition: "commercial timber cutting right"

15.1(4)

In this section, "commercial timber cutting right" does not include a timber cutting right that authorizes the holder — on the request and at the direction of government officials — to cut and remove the minimum amount of timber required to achieve any of the following purposes on land in a provincial park, if permitted under The Provincial Parks Act:

(a) forest fire threat reduction;

(b) forest pest and disease control;

(d) forest research;

(e) the development of park infrastructure.

Section 17 is replaced with the following:

Form of applications and other documents

Every application, return or other document that is required under this Act must be made in a form approved by, or acceptable to, the director.

11(1)

Subsections 18(4) and (5) of the English version are amended by striking out "berth" wherever it occurs and substituting "forest management licence area".

11(2)

Subsection 18(6) is amended by striking out everything after "may extend the" and substituting "forest management licence area."

11(3)

Subsection 18(7) is amended by striking out "forest management berth" and substituting "forest management licence area".

11(4)

Subsection 18(8) is amended by striking out "forest management berth" and substituting "forest management licence area".

12(1)

Subsection 20(1) is amended

(a) in the section heading, by striking out "Licence" and substituting "Timber cutting right";

(b) by striking out "Every licence for timber" and substituting "Every timber cutting right"; and

(c) by striking out "within the boundaries of the berth" and substituting "that are subject to the timber cutting right".

12(2)

Subsection 20(2) is repealed.

12(3)

Subsection 20(3) is amended

(a) by striking out "Every licence" and substituting "Every timber cutting right"; and

(b) by striking out everything after "but the" and substituting "holder of a forest management licence is to be notified of any permission to conduct mining that is granted for land that is the subject of the licence."

Sections 21 and 22 are repealed.

Section 24 of the French version is amended by striking out "l'autre cadre" and substituting "tout autre agent".

Section 28 is amended by striking out "he holds a licence or permit therefor" and substituting "authorized to do so under a timber cutting right".

The following is added after section 28:

Prohibitions re holders of timber cutting rights

28.1

No holder of a timber cutting right shall

(a) cut or remove timber, except in accordance with the terms and conditions of the timber cutting right granted to the holder; or

(b) otherwise fail to comply with the terms or conditions of the timber cutting right granted to the holder.

Possession of illegally harvested timber

28.2

No person shall acquire or possess timber that the person knows, or ought reasonably to know, was cut or removed in contravention of this Act.

Subsection 29(2) of the French version is amended by striking out "un cadre" and substituting "un agent".

The following is added after section 29:

Inspection powers

29.1(1)

For the purpose of ensuring compliance with this Act, an officer may, without a warrant,

(a) request or signal any vehicle being used to transport timber to stop;

(b) inspect the vehicle and the timber being transported; and

(i) his or her driver's licence or other proof of identity acceptable to the officer, and

(ii) any documents related to the timber being transported that the officer may request.

Officer to show identification

29.1(2)

An officer must produce identification if requested to do so when conducting an inspection.

Duty of operator during inspection

29.1(3)

When requested or signalled to stop by an officer conducting an inspection under subsection (1), the operator of the vehicle must

(a) immediately bring the vehicle to a safe stop;

(b) allow the officer to inspect the vehicle and the timber being transported;

(c) produce any documents related to the timber being transported and the operator's identity that the officer may request;

(d) provide any assistance or additional information that the officer reasonably requires to perform the inspection; and

(e) not proceed until permitted to do so by the officer.

19(1)

Subsection 30(1) is amended

(a) in the part before clause (a),

(i) in the French version, by striking out "Le cadre" and substituting "L'agent", and

(ii) by striking out "against this Act or the regulations" and substituting "under this Act"; and

(b) by striking out "or" at the end of clauses (a) and (b), adding "and" at the end of clause (c) and adding the following after clause (c):

(d) any book, record or document;

19(2)

Subsection 30(2) is amended

(a) in the part before clause (a) of the French version, by striking out "un cadre" and substituting "un agent"; and

(b) in clause (a), by striking out "against this Act or the regulations" and substituting "under this Act".

19(3)

Subsection 30(3) is amended

(a) in the part before clause (a) of the French version, by striking out "le cadre" and substituting "l'agent"; and

(b) in clause (a), by striking out "against this Act or the regulations" and substituting "under this Act".

20(1)

Section 31 is amended by striking out "or the regulations" wherever it occurs.

20(2)

Subsection 31(5) of the French version is amended by striking out "d'un cadre" and substituting "d'un agent".

Section 33 of the French version is amended by striking out "du cadre" and substituting "de l'agent".

22(1)

Subsections 34(1), (1.1) and (1.2) are replaced with the following:

Timber cutting dues

34(1)

When Crown timber is cut or removed under authority of a timber cutting right, the holder of the right, or the person who purchases or acquires the timber from the holder, must pay to the Crown

(a) the dues payable under the timber cutting right for the timber harvested; or

(b) the dues established in the regulations for the timber harvested, if the timber cutting right does not address the dues payable.

Forest renewal

34(1.1)

The holder of a timber cutting right must do one of the following:

(a) pay to the Crown the forest renewal charge established in the regulations on Crown timber harvested by the holder;

(b) pay the forest renewal charge established in the regulations on Crown timber harvested by the holder to a third party who has entered into an agreement with the minister to perform forest renewal on Crown lands that the holder has harvested;

Conditions on approval

34(1.2)

As a condition of granting approval under clause (1.1)(c), the minister may impose any term or condition on the holder of a timber cutting right that he or she considers appropriate.

Forest renewal standards

34(1.3)

A third party who enters into an agreement with the minister under clause (1.1)(b), or the holder of a timber cutting right who performs forest renewal under clause (1.1)(c), must ensure that

(a) the renewal is performed in accordance with the terms and conditions set out in the timber cutting right under which the timber was harvested and meets the standards established in the regulations; or

(b) the renewal meets the standards established in the regulations, if the timber cutting right does not address forest renewal.

Forest management charge

34(1.4)

The holder of a timber cutting right must pay the forest management charge established in the regulations on Crown timber harvested by the holder

(a) to the Crown, if the timber is harvested on Crown land that is not the subject of a forest management licence; or

(b) to the holder of the forest management licence that provided forest management services for the land on which the timber was harvested, if the harvested timber is not delivered to the holder of that forest management licence.

22(2)

Subsection 34(2) is amended

(a) in the section heading of the English version, by striking out "fees, etc." and substituting "dues or charges"; and

(b) in the part before clause (a),

(i) by striking out "fee, rate, royalty, assessment,", and

(ii) in the French version, by striking out "le cadre" and substituting "l'agent".

22(3)

Subsection 34(3) is amended

(a) by striking out "fee, rate, royalty, assessment, dues or charges" and substituting "amount"; and

(b) by striking out ", where the timber was cut under the authority of a valid licence, permit, or timber sale agreement,".

22(4)

Subsection 34(5) of the English version is amended in the part before clause (a) by striking out "owes no fee, rate, royalty, assessment, dues or charges" and substituting "does not owe any amount".

22(5)

Subsection 34(6) is amended by striking out "fees, rates, royalties, assessments,".

The following is added after section 34:

Penalty for unauthorized timber cutting or removal

34.1(1)

When Crown timber is cut or removed by a person who is not authorized to do so under a timber cutting right, the person must pay to the Crown — in addition to any other penalty or fine imposed under this Act — an amount equal to four times the dues and charges that would have been payable if the timber had been cut or removed by a person authorized to do so under a timber cutting right.

Application of section 34

34.1(2)

Subsections 34(2) and (6) apply, with necessary changes, to a person who owes an amount to the Crown under subsection (1). Subsection 34(3) also applies, but all of the proceeds from the sale must be paid to the Crown.

Section 35 is replaced with the following:

Appointment of officers

35(1)

The minister may appoint any persons, or classes of persons, as officers for the purpose of enforcing this Act.

Temporary officers

35(2)

While engaged in the enforcement of this Act, an officer may call upon any person for assistance, and that person, while giving the assistance, is an officer for the purposes of this Act.

The following is added after section 35:

Exemption for officers

35.1(1)

For the purpose of conducting investigations related to the enforcement of this Act, the minister may exempt an officer from the application of provisions of this Act.

Requirements

35.1(2)

An exemption must be in writing and include restrictions respecting

(a) the duration of the exemption; and

(b) the acts or omissions, that would otherwise constitute offences, that the officer is allowed to commit while conducting investigations.

Section 36 is amended

(a) in the section heading, by striking out "conservation"; and

(b) in the French version, by striking out "cadre" and substituting "agent".

Section 37 is replaced with the following:

Offences

37(1)

A person is guilty of an offence who

(a) contravenes a provision of this Act;

(b) makes a false statement to an officer or any other person acting under the authority of this Act;

(d) hinders, obstructs or interferes with or attempts to hinder, obstruct or interfere with an officer or any other person acting under the authority of this Act.

Continuing offence

37(2)

When a contravention of this Act continues for more than one day, the person is guilty of a separate offence for each day the contravention continues.

Directors and officers of corporations

37(3)

If a corporation commits an offence under this Act, a director or officer of the corporation who authorized, permitted or acquiesced in the commission of the offence is also guilty of the offence.

Penalties for individuals

37(4)

Except as provided in subsection (5), a person who is guilty of an offence under this Act is liable on summary conviction,

(a) for a first offence, to a fine of not more than $50,000 or imprisonment for a term of not more than six months, or both; and

(b) for each subsequent offence, to a fine of not more than $100,000 or imprisonment for a term of not more than one year, or both.

Penalties for corporations

37(5)

A corporation that is guilty of an offence under this Act is liable on summary conviction,

(a) for a first offence, to a fine of not more than $250,000; and

(b) for each subsequent offence, to a fine of not more than $500,000.

Additional fine

37(6)

If a person is convicted of an offence under this Act and the court is satisfied that, as a result of the commission of the offence, the person acquired any monetary benefits or that monetary benefits accrued to the person, the court may order the person to pay a fine of not more than the court's estimation of the amount of those monetary benefits. A fine under this subsection is in addition to, and not in place of, a fine under subsection (4) or (5).

Limitation period

37.1

A prosecution for an offence under this Act may not be commenced later than two years after the day on which evidence sufficient to justify a prosecution for the offence came to the knowledge of an officer. The certificate of an officer as to the day on which the evidence came to his or her knowledge is evidence of that date.

Subsection 39(6) is repealed.

Section 40 is amended

(a) by striking out "fees, rates, charges or other dues under this Act" and substituting "dues, charges and other amounts owing to the Crown under this Act"; and

(b) in the English version, by striking out everything after "liable for the payment of those unpaid" and substituting "amounts."

30(1)

Clause 41(1)(a) is replaced with the following:

(a) respecting dues and charges payable for Crown timber, including establishing the amount or rate of those dues and charges, or the method of calculating them, which method may be based upon the current market value — as determined by the most recent version of a publication or other authority specified in the regulation — of commodities that are produced from the timber;

30(2)

Clause 41(1)(a.2) is replaced with the following:

(a.2) respecting the performance of forest renewal, including prescribing the manner in which forest renewal is to be performed and minimum standards of forest renewal;

30(3)

The following is added after clause 41(1)(a.2):

(a.3) establishing the amount of the forest management charge for the purpose of subsection 34(1.4);

(a.4) specifying the circumstances in which the dues and charges payable under this Act are to be paid by the person who harvested the timber, and those in which the dues and charges are to be paid by the person who purchases or acquires the timber;

30(4)

Clause 41(1)(b) is amended by striking out "held under licence, permit, or agreement" and substituting "that is the subject of a timber cutting right".

30(5)

The following is added after clause 41(1)(b):

(b.1) prescribing the fees payable for timber cutting rights and other licences and permits under this Act;

(b.2) specifying the type of timber cutting rights that an officer or employee of the department may acquire, and the interests that an officer or employee may hold in a business that deals in timber or other forest products;

30(6)

Clause 41(1)(c) is amended by striking out everything after "enter into".

30(7)

Clause 41(1)(d) is amended by striking out "lumber planer operators, and scalers" and substituting "lumber planer operators, scalers and wood processing facility operators".

30(8)

Clause 41(1)(e) is repealed.

30(9)

Clause 41(1)(f) is replaced with the following:

(f) respecting records, reports and documents to be kept by a person under this Act, including records and reports to be submitted to the department, the manner in which those records and reports may be submitted, and the deadline for submitting those records and reports;

30(10)

Clause 41(1)(i) is repealed.

30(11)

Clause 41(1)(n) is replaced with the following:

(n) respecting the terms and conditions to which unpaid due and charges are subject, including prescribing the interest rate payable on unpaid dues and charges;

30(12)

The following is added after clause 41(1)(o):

(o.1) requiring persons transporting timber to carry documentation respecting the timber being transported, regardless of whether the timber was harvested on Crown land or private land, and prescribing the information to be contained in the documentation;

30(13)

Subsection 41(2) is amended by adding "or (a.3)" after "clause 41(1)(a.1)".

C.C.S.M. c. P20 amended

31(1)

The Provincial Parks Act is amended by this section.

31(2)

Clause 7(5)(a) is amended by striking out "logging,".

31(3)

The following is added after subsection 7(5):

Prohibition on logging

7(6)

Logging in provincial parks is prohibited in accordance with section 15.1 of The Forest Act.