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The Noxious Weeds Amendment Act

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S.M. 2015, c. 38

Bill 32, 4th Session, 40th Legislature

The Noxious Weeds Amendment Act

(Assented to November 5, 2015)

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

C.C.S.M. c. N110 amended

1           The Noxious Weeds Act is amended by this Act.

2           Section 1 is amended

(a) by repealing the definitions "harvester" and "harvesting machine";

(b) by replacing the definitions "destroy" and "noxious weed" with the following:

"destroy" means to kill all growing parts of a noxious weed and to make the noxious weed's reproductive mechanism non-viable; (« détruire »)

"noxious weed" means a plant that is designated as a tier 1, tier 2 or tier 3 noxious weed in the regulations and includes the seed of a noxious weed, whether it is still attached to the noxious weed or is separate from it; (« mauvaise herbe »)

(c) by adding the following definitions:

"control", in relation to a noxious weed, means to curtail its growth and prevent its spread beyond its current location; (« lutter »)

"director" means the person appointed under The Civil Service Act as the director for the purpose of this Act; (« directeur »)

"tier 1", in relation to a noxious weed, means that the noxious weed is designated as a tier 1 noxious weed in the regulations; (« mauvaise herbe de catégorie 1 »)

"tier 2", in relation to a noxious weed, means that the noxious weed is designated as a tier 2 noxious weed in the regulations; (« mauvaise herbe de catégorie 2 »)

"tier 3", in relation to a noxious weed, means that the noxious weed is designated as a tier 3 noxious weed in the regulations. (« mauvaise herbe de catégorie 3 »)

3           Section 2 is replaced with the following:

Ministerial designation of tier 1 noxious weeds

2(1)         The minister may, by regulation, designate a plant as a tier 1 noxious weed for a period of not more than one year if the minister is satisfied

(a) that the plant's existence in areas of the province where agricultural operations are located and agriculture is carried on is a significant threat to Manitoba's agricultural economy or the viability of the agricultural operations;

(b) that the plant's existence in proximity to particular kinds of agricultural operations is a significant threat to their viability; or

(c) in the case of a plant that is not known to be present in Manitoba, that the plant's known characteristics indicate that it is likely to be a significant threat to Manitoba's agricultural economy or the viability of agricultural operations if it is permitted to become established in the province.

Designation of noxious weeds by the LG in C

2(2)        The Lieutenant Governor in Council may, by regulation, designate a plant as a tier 1, tier 2 or tier 3 noxious weed if it is satisfied

(a) that the plant is likely to negatively affect any aspect of Manitoba's economy or environment or the well-being of residents of the province should the plant's growth or spread not be curtailed or, if applicable, the plant is not destroyed; or

(b) in the case of a plant that is not known to be present in Manitoba, that the plant's known characteristics indicate that it is likely to negatively affect any aspect of Manitoba's economy or environment or the well-being of residents of the province if it is permitted to become established in the province.

Regulations may be general or particular

2(3)        A regulation under this section may be general or particular in its application and may apply to the whole or any part of the province or provide that a plant is designated in more than one tier depending on its location or another factor.

4(1)        Subsection 3(1) is replaced with the following:

Responsibility to destroy or control noxious weeds

3(1)        A person must

(a) destroy all tier 1 noxious weeds that are on land that the person owns or occupies;

(b) destroy all tier 2 noxious weeds that are on land that the person owns or occupies if the area colonized by the weeds is less than five acres;

(c) control all tier 2 noxious weeds that are on land that the person owns or occupies if the area colonized by the weeds is five acres or more; and

(d) control a tier 3 noxious weed that is on land that the person owns or occupies if the weed's uncontrolled growth or spread is likely to negatively affect an aspect of Manitoba's economy or environment in the area of the land or the well-being of residents in proximity to the land.

4(2)        Subsection 3(2) is amended

(a) by replacing the section heading with "Deemed occupancy — construction work"; and

(b) by striking out "thereof" and substituting "of the land on which it is located".

4(3)        The section heading for subsection 3(3) of the English version is amended by striking out "Duty" and substituting "Responsibility".

4(4)        Subsection 3(4) of the English version is amended

(a) in the section heading, by striking out "Duty" and substituting "Responsibility"; and

(b) by adding "and" before "Transportation".

4(5)        Subsection 3(5) is replaced with the following:

Land adjacent to water

3(5)        When the land that a person owns or occupies abuts a body of water, whether flowing or not, the person must destroy or control any noxious weeds that are growing between the limit of the land and the low water mark of the body of water to the same extent as is required for noxious weeds mentioned in subsection (1).

5           Section 4 is repealed.

6           Section 5 is replaced with the following:

Prohibition on moving certain items

5(1)        If an item mentioned in subsection (2) has been operated in an area in which a noxious weed is present, a person must not move the item, or cause it to be moved, from the area to or through an area in which the noxious weed is not present without first removing from the item any portion of the noxious weed that may result in its spread.

Items that may not be moved

5(2)        Subsection (1) applies to the following items:

(a) a motorized machine or implement;

(b) an item of motorized equipment;

(c) a machine, implement or item of equipment that, in its usual use, is towed by a machine, implement or item of equipment mentioned in clause (a) or (b).

Inspector's notice to clean machinery

5(3)        If an inspector reasonably believes that a noxious weed may be present in or adhering to an item mentioned in subsection (2), the inspector may

(a)  give a written notice to the person in possession of or in charge of the item requiring the person, without delay and before the item is moved, to have it thoroughly cleaned, inside and out, and to destroy any noxious weeds in it or adhering to it; and

(b) if the notice is not promptly complied with, take any measures that the inspector considers necessary to destroy whatever noxious weeds may be in or adhering to the item.

Responsibility to comply with notice

5(4)        A person who is given a notice under subsection (3) must comply with it without delay.

7           Section 6 of the English version is amended by striking out "such manner as will prevent" and substituting "a manner that prevents".

8           Clauses 8(1)(a) to (e) and (g) and subsection 8(2) are repealed.

9(1)        Subsections 9(2) to (4) are repealed.

9(2)        Subsection 9(6) is amended

(a) by striking out "the provisions of this section, shall, in addition to any other penalty herein, also be" and substituting "this section is, in addition to any penalty under this Act for the contravention,"; and

(b) by striking out "by the contravention of this section" and substituting " because of the contravention".

10(1)       Subsection 10(2) is replaced with the following:

Agreement with owner for destruction

10(2)       When land has been declared to be a weed infested area, the municipality may enter into an agreement with the land's owner or occupant, or with an agent, that provides for the destruction of the noxious weeds by the municipality or by another person who has entered into the agreement.

10(2)       Subsection 10(3) is amended

(a) in the section heading of the English version, by striking out "eradicate" and substituting "destroy";

(b) by replacing the part before clause (a) of the English version with "When land has been declared to be a weed infested area and the council considers it to be impossible or inexpedient to enter into an agreement under subsection (2), the municipality may, by by-law,";

(c) by replacing clause (a) with the following:

(a) authorize an inspector, sub-inspector or other person to enter and assume control of the land, with any persons or machinery that are necessary, and to

(i) cultivate the land,

(ii) sow or harvest crops on the land,

(iii) destroy noxious weeds, and

(iv) take any other steps as may be necessary or advisable for any of those purposes;

(d) in clause (b) of the English version, by striking out "thereon or otherwise using the same" and substituting "on it or otherwise using it"; and

(e) in clause (c) of the English version,

(i) by striking out "thereof to be used for pasture only, and for that purpose" and substituting "of it to be used only for pasture and, for that purpose,", and

(ii) by striking out "such terms and at such rental as" and substituting "the terms and at the rental".

10(3)       Subsection 10(5) is replaced with the following:

Application of proceeds of crops

10(5)       When a municipality enters and assumes control of land under subsection (3) and a crop is harvested on the land, the municipality may retain and apply the whole or any portion of the proceeds of the crop's sale

(a) first against expenses incurred by reason of the action taken under subsection (3); and

(b) second against the taxes owing in respect of the land for a number of years equal to the number during which it is under the municipality's control.

Surplus

10(6)       If the proceeds of the crop's sale exceed the amount of the expenses and taxes described in subsection (5), the municipality must, on giving up control of the land, pay the surplus to the person entitled to the surplus.

11(1)       Subsection 11(1) is replaced with the following:

Municipal noxious weeds inspectors

11(1)       Not later than March 1 in each year and except as provided by section 32, a municipal council must, by resolution, appoint at least one official to be known as "municipal noxious weeds inspector"

(a) to enforce this Act within the municipality; and

(b) to ensure that the Act's provisions are complied with within it.

11(2)       Subsection 11(2) of the English version is amended by striking out "his" and substituting "the inspector's".

11(3)       Subsection 11(3) is amended by striking out everything after "is appointed," and substituting "the municipality's chief administrative officer must notify the director about the inspector's appointment in the manner the director requires.".

11(4)       The following is added after subsection 11(3):

Inspector's territory

11(4)       The resolution appointing an inspector must define the limits of the territory in which the inspector is to perform his or her duties and exercise his or her powers. The municipal council must ensure that every part of the municipality is included within the jurisdiction of at least one inspector.

12          Section 12 is amended by striking out everything after "fix" and substituting "the inspector's remuneration.".

13          Section 13 is replaced with the following:

Sub-inspectors

13(1)       A municipal council may, by resolution, appoint one or more sub-inspectors to assist an inspector. A sub-inspector has all the powers and authority of an inspector.

Remuneration for sub-inspector

13(2)       Section 12 applies, with necessary changes, to the remuneration of a sub-inspector.

14(1)       Subsection 14(1) is replaced with the following:

Municipality neglecting or refusing to appoint

14(1)       If a municipal council neglects or refuses to appoint a municipal noxious weeds inspector or a sub-inspector as required by a provision of this Act, the minister may, after having given 15 days' notice to the municipality's chief administrative officer,

(a) appoint a person to perform the duties and exercise the powers of municipal noxious weeds inspector or of a sub-inspector; and

(b) fix the remuneration of the person for the services.

Employment and remuneration of minister's appointee

14(1.1)     A person appointed under clause (1)(a) is deemed to be employed by the municipality as though appointed by the council under section 11 or 13, and the municipality must pay the person the remuneration fixed by the minister.

14(2)       Subsection 14(2) of the English version is amended by striking out "he" and substituting "the minister".

14(3)       Subsections 14(3) to (6) are replaced with the following:

Neglect or refusal of inspector to act

14(3)       If an inspector appointed by a municipality under this Act neglects or refuses to act in that capacity (in this subsection referred to as the "negligent inspector"), the neglect or refusal constitutes cause for the purpose of subsection 11(2), and the municipal council must, without delay, terminate the negligent inspector's appointment and appoint a successor to serve the remaining portion of the period for which the negligent inspector was to have served.

Action by minister if Act not effectively enforced

14(4)       If

(a) a municipal council neglects or refuses to comply with subsection (3); or

(b) the minister believes that a municipal noxious weeds inspector or a sub-inspector is incompetent or has failed to effectively perform his or her duties or exercise his or her powers;

the minister may, by written notice to the chief administrative officer of the municipality concerned, annul the inspector's appointment and require the municipal council to appoint a successor within the time set out in the notice.

Minister may require additional inspectors

14(5)       If the minister believes that it is impossible or impracticable for the number of appointed inspectors to effectively perform the inspection work in a municipality, the minister may, by written notice to the chief administrative officer of the municipality concerned, require the municipal council to appoint the additional inspectors or sub-inspectors that the minister considers necessary.

Destruction of noxious weeds by minister

14(6)       If a municipality fails to ensure that noxious weeds on land in the municipality are destroyed or controlled in accordance with subsection 3(1), the minister may, at the expense of the municipality, take whatever actions the minister considers necessary to destroy or control the noxious weeds.

15          The following is added after section 14:

Municipality must comply with minister's requirements

14.1        A municipality is guilty of an offence if the municipal council

(a) fails, without delay, to comply with a notice given by the minister under subsection 14(4) or (5);

(b) fails to comply with another provision of this Act requiring the municipal council to take an action;

(c) fails to require the municipality's inspectors to ensure that noxious weeds on land in the municipality are destroyed or controlled in accordance with subsection 3(1); or

(d) fails to provide the municipality's inspectors with adequate resources to see that this Act is effectively enforced within the municipality.

16          Sections 15 to 17 are replaced with the following:

Action on default of municipality

15          If a municipality neglects or refuses to make a payment required by subsection 14(1.1), the payment may be made by the minister responsible for The Municipal Affairs Administration Act on the recommendation of the minister and may be included in the next annual levies against the municipality under that Act.

Inspectors for unorganized territory

16          For the enforcement of this Act in unorganized territory, the minister may appoint inspectors to be known as "district noxious weeds inspectors" and may specify the district in which each inspector has jurisdiction. In that district, the district noxious weeds inspector has the same duties and powers as a municipal noxious weeds inspector.

Inspector to examine territory for compliance with Act

17(1)       An inspector must, with all diligence, examine the land in the territory over which he or she has jurisdiction to ascertain whether this Act is being complied with.

Notice to comply

17(2)       When an inspector finds noxious weeds on any land, the inspector may give, to any person who is responsible for complying with this Act in respect of the land, a written notice requiring the person, in accordance with subsection 3(1), to destroy or control the noxious weeds within the period stated in the notice, which is not to exceed 15 days.

17          Section 19 is replaced with the following:

Neglect or refusal to comply with notice

19(1)       A landowner, occupant or agent who has been given a notice under this Act and who

(a) neglects or refuses to destroy or control noxious weeds as required by this Act within the period stated in the notice; or

(b) otherwise neglects or refuses to comply with the requirements of the notice;

is guilty of an offence and is liable, in addition to the penalty provided in subsection 36(1), to a further fine of $100 for each day that the neglect or refusal continues.

Destruction of weeds by inspector

19(2)       In a case to which subsection (1) applies, the inspector having jurisdiction in the area may enter on the land and destroy or control the noxious weeds in accordance with subsection 3(1) or may take any other action that is required to comply with the notice's requirements.

Destruction of ripening seeds

19(3)       Without notice to any person, a municipal council may, by resolution, authorize an inspector to destroy any noxious weeds if the inspector considers their seeds are within 10 days of ripening. The municipality may levy the cost of destroying the weeds against the land as provided by section 27.

Destruction of weeds on vacant land

19(4)       When noxious weeds are found on unoccupied or vacant land and the owner or person in control of the land resides outside the municipality, an inspector may enter on the land and destroy the noxious weeds without notice to any person.

18          Section 20 is replaced with the following:

Subdivided but not fully developed land

20(1)       Despite any other provision of this Act, a municipal council may, after publishing notice in a newspaper having general circulation in the municipality, direct an inspector to destroy noxious weeds on any land in the municipality that has been subdivided for development but is vacant or does not contain a building for which permission for occupancy has been given by the municipality.

Contents of notice

20(2)       A notice published for the purpose of this section must describe the action to be taken by the inspector and state the manner by which the noxious weeds are to be destroyed and the time period in which the inspector is to take the action.

Inspector may act without further notice

20(3)       An inspector may, for the purpose of this section, enter on the land and destroy the noxious weeds without further notice to any person.

19(1)       Subsection 21(1) of the French version is amended by striking out "de détruire ou d'enrayer" and substituting "d'effectuer la destruction ou la lutte concernant".

19(2)        Subsection 21(2) is amended

(a) in the part before clause (a) of the French version, by striking out "de détruire ou d'enrayer" and substituting "d'effectuer la destruction ou la lutte concernant"; and

(b) in clause (b) of the English version, by striking out "chairman" and substituting "chair".

20          Section 22 of the English version is amended in the part before clause (a)

(a) by adding "or her" after "his"; and

(b) by striking out "in this section" and substituting "under this section,".

21          Section 23 of the French version is amended by striking out "de détruire ou d'enrayer" and substituting "d'effectuer la destruction ou la lutte concernant".

22(1)       Subsection 24(1) is replaced with the following:

Reports by inspectors to minister

24(1)       When required by the minister, an inspector must make a written report to the minister, in the form required by the minister, about

(a) the prevalence of noxious weeds in the territory under the inspector's jurisdiction;

(b) the methods used in enforcing this Act in the territory;

(c) the description of land in the area that has been declared a weed infested area; and

(d) any other matters specified by the minister that relate to the enforcement of this Act.

22(2)       Subsection 24(3) is amended by striking out everything after "require" and substituting "a report from an inspector about the enforcement of this Act in respect of any parcel of land within the inspector's territory or about the prevalence of, or the destruction or control of, noxious weeds on the land.".

23          Section 25 is repealed.

24          Subsection 26(1) is replaced with the following:

Statement of inspector's expenses

26(1)       An inspector must

(a) keep an accurate statement of the expenses incurred by or on behalf of the municipality to destroy noxious weeds on particular parcels of land;

(b) keep a description of the specific parcels of land in respect of which the expenses were incurred; and

(c) deliver a copy of the statement to the municipality's chief administrative officer when requested.

25(1)       Subsection 27(1) is amended

(a) by striking out "shall review the statement of expenditures" and substituting "must review the statement of expenses"; and

(b) by striking out "paid by the council be, by the clerk," and substituting "expended by or on behalf of the municipality be".

25(2)       Subsection 27(3) is replaced with the following:

Limitation on amount collected

27(3)       Except with the minister's prior written approval, no amount in excess of the amount prescribed in the regulations may be charged in any one year

(a) against any parcel of land having an area of a quarter section or less; or

(b) against each quarter section or portion of a quarter section in a parcel of land that is larger than a quarter section.

26(1)       Subsections 28(1) and (2) are replaced with the following:

Special levy in certain cases

28(1)       On the recommendation of the municipal noxious weeds inspector or the chair of the board, a municipal council may, by resolution, levy a charge on any land that is found to be infested with noxious weeds. The amount of the charge may not be more than the amount prescribed in the regulations.

Notice of levy

28(2)       When a council levies a charge as provided in subsection (1), the municipality's chief administrative officer must give a written notice to the owner or occupant of the land stating the charge levied and the method to be used in destroying or controlling the noxious weeds.

26(2)       Subsection 28(3) is amended

(a) by striking out "clerk shall cause the charge, levied as aforesaid," and substituting "chief administrative officer must cause the charge"; and

(b) by striking out "the lands described in the notice, or such of them as are taxable" and substituting "any of the lands described in the notice that are taxable".

26(3)       Subsection 28(6) is amended

(a) in the English version,

(i) by striking out "Where the owner or occupant has taken the measures for the" and substituting "If the owner or occupant has, to the satisfaction of an inspector, taken the measures for the destruction or", and

(ii) by striking out "on him under subsection (2), to the satisfaction of an inspector" and substituting "under subsection (2)"; and

(b) by striking out "or levy" and substituting "levied".

26(4)       Subsection 28(7) is amended by striking out "or levy or any part thereof as seems just and the collectors roll shall" and substituting "levied or any part of a charge levied that it considers appropriate, and the collectors roll must".

27          Section 29 is amended

(a) in the English version, by striking out "such moneys as" and substituting "any money that"; and

(b) in the French version, by striking out "d'enraiement des" and substituting "de lutte concernant les".

28          Section 30 of the English version is amended by striking out "moneys" and substituting "money".

29(1)       Subsection 31(1) of the French version is amended in the part after clause (b) by striking out "d'enraiement et de destruction des" and substituting "de destruction et de lutte concernant les".

29(2)       Subsection 31(3) of the English version is amended by striking out "moneys" and substituting "money".

29(3)       Subsection 31(5) of the French version is amended by striking out "l'enraiement et la destruction des" and substituting "la destruction et la lutte concernant les".

29(4)       Subsection 31(7) of the English version is amended by striking out "shall, by resolution, appoint a secretary-treasurer for the board and pay to him such salary as" and substituting "must, by resolution, appoint a secretary-treasurer for the board and pay the secretary-treasurer the salary that".

30          Section 34 of the English version is amended by striking out "he is required to observe and carry out," and substituting "the person is required to observe and carry out".

31          Section 35 of the English version is amended

(a) by striking out "pursuant to this Act, a notice" and substituting "a notice under this Act"; and

(b) by striking out "notice," and substituting "notice".

32          Subsection 36(1) is amended by striking out ", on summary conviction, to a fine of not more than $500." and substituting "to a fine of not more than $2,000".

33          The following is added after section 36:

How a notice is to be given

36.1        A notice that is to be given, or may be given, for the purpose of section 5, 8, 9, 17 or 28 may be given in accordance with the regulations.

34          The form set out in subsection 38(1) is amended

(a) by striking out "19"; and

(b) by striking out "Agriculture, Food and Rural Initiatives." and substituting "[name of minister's department to be entered here]".

35(1)       Subsection 39(1) is amended

(a) in the English version, by striking out "him" and substituting "the minister"; and

(b) in the French version, by striking out "l'enraiement et à la destruction des" and substituting "la destruction et à la lutte concernant les".

35(2)       Subsection 39(2) of the English version is amended by striking out "him in discharging his duties as a member thereof" and substituting "the member in performing his or her duties as an advisory board member".

36          Section 40 is replaced with the following:

Regulations

40(1)       The Lieutenant Governor in Council may make regulations

(a) respecting notices that may be or are to be given under any provision of this Act and respecting how and to whom they may be or are to be given;

(b) prescribing the maximum annual amount for the purpose of subsection 27(3);

(c) prescribing the maximum charge for the purpose of subsection 28(1);

(d) respecting any matter the Lieutenant Governor in Council considers necessary or advisable to carry out the purposes of this Act.

Regulations may be general or particular

40(2)       A regulation under this section may be general or particular in its application and may apply to the whole or any part of the province.

37          Section 41 of the English version is amended

(a) by striking out "Moneys" and substituting "Money"; and

(b) by striking out ", with moneys" and substituting "with money".

38          The Schedule of Noxious Weeds is repealed.

Coming into force

39          This Act comes into force on a day to be fixed by proclamation.