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The Forest Act
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This version is current as of June 28, 2016.
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C.C.S.M. c. F150

The Forest Act

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

Definitions

1(1)        In this Act,

"branch" means The Forestry Branch; (« Direction »)

"burning permit area" has the same meaning as in The Wildfires Act; (« zone de permis de feu »)

"Crown" means Her Majesty the Queen in right of the province; (« Sa Majesté »)

"Crown lands" means Crown lands as defined in The Crown Lands Act; (« terres domaniales »)

"Crown timber" includes any trees, timber, and products of the forest, in respect whereof the Crown is entitled to demand and receive any royalty or revenue or money whatsoever; (« ressources forestières domaniales »)

"department" means the department of government over which the minister presides and through which this Act is administered; (« ministère »)

"director" means the Director of The Forestry Branch; (« directeur »)

"forest land" means any uncultivated land in the province on which trees or shrubs are growing or standing; any barren, dry marsh, or bog, whether the land is owned by the Crown or by private persons, or held under lease from the Crown; (« forêt »)

"forest management licence", "timber sale agreement", "timber permit", means any forest management licence, timber sale agreement or timber permit granted under this Act authorizing the cutting and removal of Crown timber; (« licence de gestion forestière », « contrat de vente de bois », « permis de coupe de bois »)

"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 »)

"licensee" means the holder of a valid licence; (« titulaire d'une licence »)

"mines" and "minerals" means mines and minerals as defined in The Mines and Minerals Act; (« mines et minéraux »)

"minister" means the member of the Executive Council charged by the Lieutenant Governor in Council with the administration of this Act; (« ministre »)

"officer" means

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

(a.1) a conservation officer appointed under The Conservation Officers Act,

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

(c) an officer appointed under the Customs Act (Canada); (« agent »)

"oil and gas rights" means oil and gas rights as defined in The Oil and Gas Act; (« droits gaziers et pétroliers »)

"permittee" means the holder of a valid permit; (« titulaire d'un permis »)

"primary forest products" include trees or portions thereof and their initial processed products; (« produits forestiers primaires »)

"provincial forest" means any lands designated as such in the regulations; (« forêt provinciale »)

"public management area" means an area of Crown forest land, administered by the department under a forest management plan; (« région de gestion publique »)

"scaler" means a person employed or engaged in the measurement of timber under authority of a valid Manitoba scaler's licence; (« mesureur »)

"timber" means all trees standing, fallen, or cut and includes primary forest products; (« ressources forestières » ou « bois »)

"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 »)

"well" means a well as defined in The Oil and Gas Act. (« puits »)

Reference to "Act" includes regulations

1(2)        In this Act, a reference to "this Act" includes the regulations made under this Act.

S.M. 1993, c. 4, s. 227; S.M. 1997, c. 36, s. 40; S.M. 2000, c. 35, s. 44; S.M. 2009, c. 5, s. 2; S.M. 2015, c. 4, s. 22.

PART I

ADMINISTRATION

Minister to regulate and administer, etc.

2           The minister, with respect to Crown timber on behalf of the Crown, shall regulate and administer all matters relating to, or in any way connected with, forestry, and, without restricting the generality of the foregoing, shall regulate and administer,

(a) all rights, properties, interests, claims and demands of the Crown in timber;

(b) subject to The Financial Administration Act, all revenues and money of the Crown arising from forestry;

(c) management, utilization and conservation of Crown forest lands and timber;

(d) afforestation, reforestation, tree preservation and tree improvement;

(e) the disposition of timber;

(f) the cutting and production of primary forest products and products of the forest;

(g) the enforcement of statutes, rules and regulations relating to forestry and provincial forests.

Forestry Branch

3           There shall be in the department a branch known as: The Forestry Branch, which shall be controlled and directed by the minister.

Administration of provincial forests

4           The grazing of livestock, the cutting of hay, the gathering of wild flora, and the occupancy of land, in provincial forests shall be administered through and under the branch.

Staff

5           A Director of The Forestry Branch and such other officers and employees as may be required to administer this Act may be appointed as provided in The Civil Service Act.

Inspection

6           In the discharge of his duties, an officer or any person by him accompanied or authorized for that purpose, may enter upon and pass through or over private property without being liable for trespass; and for the purpose of 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.

S.M. 2009, c. 5, s. 4.

Prohibited conduct for department employees

7           Except when permitted under the regulations, no officer or employee of the department shall have, acquire, or hold, directly any property or interest in any timber cutting right or other authority from the Crown to utilize or deal with any timber or any product of Crown forest land, or engage or have any interest in any business having as its object the utilization or dealing in timber or products of the forest.

S.M. 2009, c. 5, s. 5.

Agreements with Canada and other provinces, etc., authorized

8(1)         The minister, subject to the approval of the Lieutenant Governor in Council, may, on behalf of the government, enter into an agreement or arrangement with the Government of Canada, a province or state, a municipality or the owner or licensee of a forest for the protection, development or utilization of forest resources, including protection from fire, insects, and diseases, for forest inventories, silvicultural research, watershed protection, reforestation, forestry publicity, and education, and, in respect of the construction of roads and improvement of streams on Crown forest land, improvement of growing conditions and management of Crown forest land.

Building of roads, etc.

8(2)        The minister may, subject to other relevant legislation, maintain or build roads, winter roads and stream improvements on Crown land, designate any of them as resources roads or improvements, regulate and set charges for their maintenance and assess and recover the cost of any damage to them as a debt owed to the Crown from the person responsible for the damage.

Sale of timber on land sold

9           Notwithstanding anything in The Crown Lands Act, where application is made to purchase Crown lands on which, in the opinion of the director, there is timber of value, he shall obtain an estimate of the value of the timber and that value shall be added to the sale price of the land; but if the land applied for contains thereon timber that should be reserved for the future requirements of the forest industries of the province, the minister may refuse the application.

Timber on leased land

10          Notwithstanding anything contained in The Crown Lands Act, where application is made to lease Crown lands within a burning permit area, and in the opinion of the minister, the land or any part thereof is best suited to forest production, the minister may

(a) refuse the application;

(b) adjust the leased area to exclude forest lands; or

(c) make such arrangements, as in his opinion, may be necessary for the management of any forest area comprised in such area.

S.M. 1997, c. 36, s. 40.

PART II

TIMBER CUTTING RIGHTS

Disposition of cutting rights for Crown timber

11(1)       Timber cutting rights shall be granted in such manner, and by such means, as, in the opinion of the minister, secures the maximum benefit to the forest industry of the province; and, without restricting the generality of the foregoing, the minister may offer Crown timber for sale

(a) by public competition

(i) to the public generally, or

(ii) to any group of persons already established in timber operations in a forest management unit within which the timber being offered is located; or

(b) with the approval of the Lieutenant Governor in Council,

(i) by negotiation between the government and any company or person who provides satisfactory proof of his willingness and ability to make the required capital investment in the establishment of a new industry, or who requires additional timber to sustain an industry already established, or

(ii) to persons or organizations which require the right to cut timber for the purpose of providing employment in a low employment area or community where the establishment of a timber harvesting and utilization program will enhance the social and economic well-being of the area or community; or

(c) by permit or timber sale agreement where, because of silvicultural requirements, location, quantity or quality of timber or for the purpose of salvage or for municipal use it is, in the opinion of the minister, impracticable to grant cutting rights by competition; or

(d) by permit to cut pulpwood, boxwood or fuelwood for the permittee's own use or for sale, subject to such limitations as to quantity of timber and such terms and conditions as may be prescribed in the regulations at the time a permit is issued.

Tenders

11(2)       The highest or any bid or tender for timber cutting rights shall not necessarily be accepted if the bid or tender is considered by the director to be

(a) detrimental to an established wood using industry or to the establishment of a new one; or

(b) unfair to established operators in the area; or

(c) made by a person or a group of persons not qualified or equipped to conduct the operation.

Appeal

11(3)       Any person who submits a bid or tender higher than, or equal to, the one accepted may appeal the decision to accept the lower or equal bid, to the minister, if the appeal is made by registered mail within one week from the time the person is notified of the decision.

Arbitration

11(4)       If the appellant is still dissatisfied with the disposition of his appeal, he may within one week from the date he is notified by the minister of his decision under subsection (3), request in writing that the case be dealt with by arbitration; and, if he does so, the minister shall appoint an arbitration board as provided in the regulations to deal with the matter, and the decision of the arbitration board so appointed is final.

S.M. 2009, c. 5, s. 6.

Transfer of timber cutting rights

12          Except as otherwise authorized or approved by the minister, and subject to such terms and conditions as he may consider fit to impose, a right to cut timber under this Act is not assignable or transferable.

13          [Repealed]

S.M. 2009, c. 5, s. 7.

Control of public management areas

14          For the purpose of regulating the production from a public management area, the minister may regulate

(a) the number and extent of timber sales of timber within the public management area; or

(b) the number, the size, and standard, of sawmills within the public management area.

Withdrawal of land subject to timber cutting right

15          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.

S.M. 2009, c. 5, s. 8.

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;

(c) forest rehabilitation and ecosystem preservation;

(d) forest research;

(e) the development of park infrastructure.

S.M. 2009, c. 5, s. 9.

Licence for scaler

16          No person shall act as a scaler unless he holds a valid and subsisting Manitoba scaler's licence.

Form of applications and other documents

17          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.

S.M. 2009, c. 5, s. 10.

Issue of forest management licence

18(1)       Where the investment in a wood-using industry established or to be established in Manitoba is sufficient to require the security of a continuous timber supply, the minister with the approval of the Lieutenant Governor in Council may, subject to sections 11 and 12 and to such terms and conditions as may be imposed by the minister and such terms and conditions as may be prescribed in the regulations, grant a forest management licence to such an industry.

Period of licence

18(2)       A licence granted under subsection (1) shall be for a period of not more than 20 years, but may be renewed, with or without change or amendments to the terms and conditions under which it was granted, for further periods of not more than 20 years each.

Timber covered by licence

18(3)       A licence under subsection (1) shall be restricted to the species, size, quality and quantity of timber which in the opinion of the minister is required by the licensee.

Rights of licensee

18(4)       The licence shall describe the land upon which the timber may be cut and shall, during its continuance, vest in the licensee, all rights of property whatsoever in all trees, timber, lumber, or other products of timber, that he is entitled by the licence to cut, and that have been cut, within the limits of the forest management licence area during the continuance thereof, whether the trees, timber, lumber, or other products, are cut by consent of the licensee or by any other person without his consent, and vests in the licensee, as against any person other than the Crown, subject to the conditions mentioned in the licence, all rights of property whatsoever in all trees, timber, lumber, and other products of timber, cut within the limits of the forest management licence area by any other person without his consent.

Right of seizure

18(5)        The licence entitles the licensee to seize in replevin or otherwise, as his property, timber of any kind cut within the limits of the forest management licence area where it is found in the possession of any unauthorized person, and also to bring an action or suit against any person unlawfully in possession of the timber, and to prosecute all persons cutting timber of any kind in trespass, and to recover damages, if any; and all proceedings pending at the expiration of the licence may be continued and completed as if the licence had not expired.

Extension of area

18(6)       Where the holder of a forest management licence undertakes to increase or increases the capacity of his mill, the minister, with the approval of the Lieutenant Governor in Council, may extend the forest management licence area.

Cost of survey

18(7)       The minister may require the licensee to pay for any costs incurred by the department for legal surveys, timber estimates, mapping and advertising the proposed forest management licence area.

Method of payments to Crown

18(8)       Where a forest management licence is granted under a negotiated agreement, any payments to be made by the licensee to the Crown may be based on the volume of wood cut or manufactured or as a percentage of the revenue derived annually from the operation of the forest management licence area, or on such other basis as the minister considers reasonable.

S.M. 2009, c. 5, s. 11.

Option licences

19          The minister, with the approval of the Lieutenant Governor in Council, and after giving public notice, may issue an option licence to a forest industry for a forest area for a period not exceeding two years in order that the person to whom such a licence is issued may have an opportunity to make examinations and surveys to determine whether or not he wishes to obtain a forest management licence for all or part of such area; and the minister may forbid or restrict the issuance of any other timber licence or permit in the area covered by the option licence.

Timber cutting right subject to mineral rights

20(1)       Every timber cutting right is subject to the provisions of this Act, or of any other Act, or of any regulations made thereunder, dealing with or affecting the disposal of mines and minerals or oil and gas rights within or under lands that are subject to the timber cutting right; and, the grantee, lessee, or permittee in respect of the mineral rights or oil and gas rights has the right to secure, use, and hold possession of, such land described in the grant, lease, or permit as is necessary for quarrying stone, for drilling or operating a well, or for working a mine, and the right to open any roads necessary in connection with such works.

20(2)       [Repealed] S.M. 2009, c. 5, s. 12.

Minister may permit prospecting

20(3)        Every timber cutting right is subject to the right of the minister to permit prospecting for mines and minerals; but the 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.

S.M. 1993, c. 4, s. 227; S.M. 2009, c. 5, s. 12.

21 and 22   [Repealed]

S.M. 2009, c. 5, s. 13.

PART III

PROVINCIAL FORESTS

Disposition of lands within a provincial forest

23(1)       In order to reserve certain areas in the province for a perpetual growth of timber, and to preserve the forest cover thereon, and to provide for a reasonable use of all the resources that the forest lands contain, all Crown lands within a provincial forest are hereby withdrawn from disposition, sale, settlement or occupancy, except under authority of this Act.

Roads, etc., to be part of provincial forest

23(2)       Every road and highway, the title to which is vested in the Crown, and that lies between parcels of land contained in a provincial forest, shall, for the purposes of forest administration, be deemed to be part of the provincial forest.

Management of provincial forests

24          All Crown lands within a provincial forest are, subject to the direction of the minister, under the control and management of the director or such other officer as may, from time to time, be designated for that purpose by the minister.

L. G. in C. may acquire lands in provincial forest

25          The Lieutenant Governor in Council may purchase, expropriate, or otherwise acquire, any land for a provincial forest, the title to which is not vested in the Crown, or may exchange therefor available Crown lands; and where necessary may also make compensation upon such exchange.

Expropriation Act to apply

26          The Expropriation Act applies to any proceedings under section 25.

Provincial park lands within provincial forests

27          Where, under The Provincial Parks Act, an area within a provincial forest is designated as a provincial park, the area is not thereby withdrawn from the provincial forest.

S.M. 1993, c. 39, s. 36.

PART IV

PROHIBITIONS

Prohibition on cutting timber on Crown forest lands

28          Unless authorized to do so under a timber cutting right, no person shall enter upon forest land owned by the Crown for the purpose of cutting or removing timber, or shall cut, or remove, timber thereon or therefrom.

S.M. 2009, c. 5, s. 15.

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.

S.M. 2009, c. 5, s. 16.

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.

S.M. 2009, c. 5, s. 16.

Cutting timber without authority

29(1)       Any person who without authority,

(a) cuts, or employs, or induces or assists any other person to cut any timber on forest land owned by the Crown; or

(b) removes or carries away, or employs or induces or assists any other person to remove or carry away any timber so cut;

has no right or title in or to that timber and no claim or right to any remuneration for cutting the timber, preparing it for market or for conveying it to or towards market.

Costs of illegally cut timber may be recovered

29(2)       The timber cut or cut and removed by a person as mentioned in subsection (1) is subject to seizure by an officer; and where the timber so cut and removed cannot be traced or found, the person shall be deemed to be indebted to the Crown in such amount, for every tree cut or cut and removed by him, as may be fixed in the regulations.

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

(c) require the operator of the vehicle to produce

(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.

S.M. 2009, c. 5, s. 18.

Seizure in execution of duties

30(1)       Where, in conducting an inspection under this Act or otherwise acting in the course of scope of duty, an officer discovers an offence being committed under this Act, the officer may seize

(a) any timber;

(b) any equipment or tool used to cut timber;

(c) any vehicle, boat, aircraft or other conveyance; and

(d) any book, record or document;

which is being used to commit the offence or which is evidence of the offence, and may bring it before a justice, or report on it to a justice, to be dealt with according to law.

Warrant to enter and seize

30(2)       A justice who is satisfied by information upon oath that there are reasonable and probable grounds to believe that

(a) an offence under this Act has occurred or is occurring; and

(b) there is to be found in any building or receptacle, or any vehicle, boat, aircraft or other conveyance, or any other place in the province a book, record, document, quantity of timber, piece of equipment, tool or other thing which affords evidence of the offence;

may at any time issue a warrant authorizing any officer, together with any peace officer on whom the officer calls for assistance and such other persons as may be named in the warrant, to enter and search the building, receptacle, conveyance or place for the thing, and to seize it and bring it before a justice, or report on it to a justice, to be dealt with according to law.

Seizure without warrant

30(3)       Where an officer believes, on reasonable and probable grounds, that

(a) an offence under this Act has occurred or is occurring; and

(b) there is to be found in any vehicle, boat, aircraft, or other conveyance in the province a book, record, document, quantity of timber, piece of equipment, tool or other thing which affords evidence of the offence;

and it is not practicable in the circumstances to obtain a warrant in accordance with subsection (2), the officer may, without warrant, search the conveyance for the thing and may seize and bring it before a justice, or report on it to a justice, to be dealt with according to law.

S.M. 2009, c. 5, s. 19.

Disposition of timber

31(1)       Where proceedings under this Act in respect of timber seized under section 30 have been finally resolved,

(a) if the accused has been convicted, the timber is forfeited to the Crown and may be disposed of as an officer directs;

(b) if the accused has been acquitted or the prosecution has not proceeded, the timber shall be turned over to the person who is lawfully entitled to possess it.

Disposition of other things

31(2)       Subject to subsections (3) to (5), when proceedings under this Act in respect of any thing except timber seized under section 30 have been finally resolved, or at such earlier time as the thing is no longer required for purposes of proceedings under this Act, the thing shall be turned over to the person who is lawfully entitled to possess it.

Application for earlier possession

31(3)       Any person claiming to be lawfully entitled to possess any thing except timber seized under section 30 may, prior to the turning over of the thing under subsection (2) and upon giving the minister 14 days notice of the hearing, apply to a justice for an order under subsection (4).

Order by justice

31(4)       Upon hearing an application under subsection (3), the justice may order the seized thing to be turned over to the applicant, subject to such terms and conditions as the justice prescribes, if

(a) the applicant is lawfully entitled to possess the thing; and

(b) the justice is satisfied that appropriate arrangements have been, or will be, made to assure that the turning over of the thing will not interfere with the proper disposition of proceedings under this Act.

Where person unknown

31(5)       Where, for six months or more after a thing has been seized under section 30, the person who is lawfully entitled to possess it is unknown or cannot be located after reasonable effort, the thing becomes the property of the Crown and may be disposed of as an officer directs.

S.M. 2009, c. 5, s. 20.

Release of timber upon payment of dues

32          Notwithstanding anything in this Act, where any timber is seized under this Act, the minister may release the timber to the person from whom it was seized upon receipt of payment from the person of such amounts as may be prescribed in the regulations.

Case of mixture

33          Where timber cut without authority is mixed or intermingled with other timber so as to render it impossible, or very difficult, to distinguish the timber unlawfully cut, from any other timber with which it is mixed or intermingled, the whole shall be deemed to have been cut without authority, and is liable to seizure and confiscation unless the owner or possessor of the timber so mixed or intermingled separates the unlawfully cut timber from the rest of the timber to the satisfaction of the officer making the seizure.

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;

(c) if the minister approves, carry out 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.

Seizure for unpaid dues or charges

34(2)       Where any person fails to pay to the Crown all or part of the required dues or charges, an officer may

(a) follow any timber cut, or cut and removed, by that person; and

(b) seize the timber and dispose of it in accordance with this section.

Sale of timber

34(3)       Timber seized under subsection (2) may be sold in satisfaction of the amount owing to the Crown, and the proceeds of sale shall be applied firstly, in satisfaction of the unpaid amount and secondly, towards the expenses of the sale; and any surplus proceeds shall be paid to the person from whom the timber was seized.

Application by alleged debtor

34(4)       Where timber has been seized under subsection (2), the person from whom it was seized may, within 30 days of the seizure or such further time as the court may allow, apply to the Court of Queen's Bench for an order under subsection (5).

Order of restitution, etc.

34(5)        Where, upon hearing an application under subsection (4), the court is satisfied that the applicant does not owe any amount to the Crown or owes a smaller amount than the Crown has alleged, the court may

(a) order the return, if possible, of some or all of the seized timber to be returned to the applicant; or

(b) order the Crown to make restitution to the applicant in an appropriate amount, including any monies reasonably expended by the applicant in applying for the order; or

(c) make such other order as is just under the circumstances.

Alternative remedy

34(6)       Where the timber of a person referred to in this section cannot be seized, and that person owes unpaid or outstanding dues or charges to the Crown with respect to that timber, the Crown may collect the unpaid or outstanding amount as a debt due to the Crown by an action in the Court of Queen's Bench, and the unpaid or outstanding amount is, and until paid shall remain, a lien on any timber cut by that person.

S.M. 1989-90, c. 40, s. 4; S.M. 2009, c. 5, s. 22.

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.

S.M. 2009, c. 5, s. 23.

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.

S.M. 2009, c. 5, s. 24.

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.

S.M. 2009, c. 5, s. 25.

Arrest by officer

36          An officer may, without warrant, arrest and bring before a justice, to be dealt with according to law, any person found violating any provision of this Act.

S.M. 2005, c. 8, s. 15; S.M. 2009, c. 5, s. 26.

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;

(c) makes a false statement in an application, return or other document given or required under this Act; or

(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).

S.M. 2009, c. 5, s. 27.

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.

S.M. 2009, c. 5, s. 27.

Application of Part IV

38          This Part applies, with such modifications as the circumstances require, to any person who grazes livestock, cuts hay or harvests wild rice on Crown lands in a provincial forest.

Suspension and cancellation of licence, etc.

39(1)       The minister or any person acting under his authority may, for cause, suspend for any stated period of time or until a condition is met, any licence, permit, or agreement, issued, granted, or made under this Act; and after notice and hearing, if in the opinion of the minister it is in the public interest to do so, he may cancel the licence, permit or agreement, as the case may be.

Notice and hearing before cancellation

39(2)       Before cancelling a licence, permit or agreement under subsection (1), the minister shall cause to be served upon the holder of the licence, permit or agreement, as the case may be, a notice in writing requiring him to attend before the minister or before such other person or persons designated by the minister, upon a day specified in the notice, which shall be not less than 30 days after the date of the notice, to show cause why the licence, permit or agreement should not be cancelled.

Service of notice

39(3)       The notice referred to in subsection (2) shall be served personally or by registered mail addressed to the last known address of the person affected thereby.

Notice of cancellation

39(4)       Where, after notice and hearing, the minister cancels a licence, permit, or agreement, he shall in writing, sent by registered mail, so notify the person affected by the cancellation.

Appeal to judge

39(5)       A person whose licence, or permit, or agreement, is cancelled by the minister under this section, may within 30 days after receipt of the notice of cancellation, appeal the cancellation to a judge of the Court of Queen's Bench and the hearing of the appeal shall be a hearing de novo.

39(6)       [Repealed] S.M. 2009, c. 5, s. 28.

Security for costs

39(7)       Where a person launches an appeal under subsection (5), unless the appeal court otherwise orders, he shall not be required

(a) to deposit any money as security for the costs of the appeal; or

(b) to furnish a transcript of the evidence upon which the minister had cancelled the licence, permit or agreement, as the case may be;

and where the appeal court orders the person to deposit money as security for costs, the amount to be deposited is in the discretion of the appeal court.

S.M. 2009, c. 5, s. 28.

Interest on unpaid dues

40          All unpaid dues, charges and other amounts owing to the Crown under this Act bear interest at such rate, and are subject to such terms, as may be prescribed in the regulations, and are a lien on any timber cut by the person liable for the payment of those unpaid amounts.

S.M. 2009, c. 5, s. 29.

PART V

GENERAL

Regulations

41(1)       For the purpose of carrying out the provisions of this Act according to their intent, the Lieutenant Governor in Council may make such regulations and orders as are ancillary thereto and are not inconsistent therewith; and every regulation and order made under, and in accordance with the authority granted by, this section has the force of law; and, without restricting the generality of the foregoing, the Lieutenant Governor in Council may make regulations and orders,

(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;

(a.1) establishing the amount of the forest renewal charge for the purpose of subsection 34(1.1);

(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;

(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;

(b) establishing the annual ground rent and fire protection charges for any area of Crown forest lands that is the subject of a timber cutting right;

(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;

(c) prescribing the terms, and conditions under which a licence or permit may be granted, or an agreement entered into;

(d) respecting the licensing of, and regulating the operations of, sawmill operators, lumber planer operators, scalers and wood processing facility operators;

(e) [repealed] S.M. 2009, c. 5, s. 30;

(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;

(g) respecting the licensing of persons purchasing primary forest products for resale or manufacture or for commercial construction, and the records to be kept by such persons;

(h) respecting the disposition of timber cut for silvicultural purposes;

(i) [repealed] S.M. 2009, c. 5, s. 30;

(j) respecting the granting of a grazing permit, hay cutting permit, or permit for harvesting wild rice, and the fees payable therefor, and the terms and conditions to which they may be subject;

(k) respecting the conservation, protection, and management of Crown forests and the control and management of the flora and fauna in such areas, and the occupancy of the lands in provincial forests;

(l) respecting the removal and exclusion of undesirable persons and trespassers, and of persons making unauthorized use of Crown forest lands or violating the provisions of this Act;

(m) prescribing the amount payable by a person under subsection 29(2);

(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;

(o) respecting the cutting, classifying, measuring, manufacturing, marking, branding, inspecting and clearing for export, of trees, timber, and products of the forest;

(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;

(p) prescribing courses and examinations for persons seeking a scaler's licence;

(q) designating any area of land as a provincial forest;

(r) respecting any other matter or thing necessary for the carrying out and enforcement of this Act.

Application of regulations

41(2)       A regulation made under clause 41(1)(a.1) or (a.3) may apply to timber cutting rights granted before or after the regulation comes into force and may apply to all or to particular kinds of timber cutting rights.

S.M. 1989-90, c. 40, s. 5 and 6; S.M. 2009, c. 5, s. 30.

Consolidated Fund

42          Moneys required to be expended for the purposes and objects of this Act shall be paid from and out of the Consolidated Fund with moneys authorized by an Act of the Legislature to be paid and applied for such purposes.

Annual reports by minister

43(1)       Within nine months after the close of each fiscal year of the government, the minister shall prepare a report on the administration of this Act, including a review of all forestry allocations, for that fiscal year and lay the report before the Assembly if the Legislature is then in session or, if the Legislature is not then in session, within 15 days of the beginning of the next following session of the Legislature.

Five year reports by minister

43(2)       In addition to the reports required under subsection (1), the minister shall, within nine months after the close of the fiscal year of the government ending on March 31, 1991 and within nine months after the close of the fiscal year in every fifth year thereafter, prepare and lay before the Assembly forthwith if the Legislature is then in session or if it is not then in session within 15 days of the opening of the next following session, a report containing

(a) a review of the status of the forest resources in the province including the status of any species of trees to which reference is made in the Act or regulations or in any licence or permit issued thereunder and such other species of trees as the minister may select for review;

(b) a review of the forestry management programs carried on by the government and an assessment of their effectiveness;

(c) an analysis of trends in, and the forecast of demands for, the use of forest resources in the province; and

(d) an evaluation of the capability of the forest resources in the province to meet anticipated demands.