BILL 19

Conservation Easements Act

Chapter Outline

Definitions 1

conservation easement -- servitude écologique

land -- bien-fonds

land registration office -- bureau de l'enregistrement
des biens-fonds

Minister -- Ministre

registrar -- registrateur

Nature of a conservation easement 2

Purpose of a conservation easement 3

Who may grant a conservation easement 4

Who may hold a conservation easement 5

Registration of a conservation easement 6

Priority of other interests 7

Amendment of a conservation easement 8

Assignment of a conservation easement 9

Termination of a conservation easement 10

Obligations may be enforced 11

Regulations 12

Commencement 13

Her Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:

Definitions

1In this Act

"conservation easement" means a conservation easement within the meaning of section 2;

"land" means all or any part of the land vested in the owner of the land and includes any water upon or under the surface of such land;

"land registration office" means a registry office established under the Registry Act or a land titles office established under the Land Titles Act;

"Minister" means the Minister of Natural Resources and Energy;

"registrar" means a registrar under the Registry Act or under the Land Titles Act.

Nature of a conservation easement

2(1)A conservation easement is a voluntary agreement entered into between the grantor of the conservation easement and the holder of the conservation easement that

(a)grants rights and privileges to the holder of the conservation easement respecting land that relate to the purposes for which the conservation easement is granted, and

(b)may impose obligations, either positive or negative, on the holder of the conservation easement, the grantor of the conservation easement or any subsequent owner of the land respecting that land that relate to the purposes for which the conservation easement is granted.

2(2)A conservation easement may exist for a fixed term or for perpetuity.

2(3)No acts done by the holder of a conservation easement or by a person claiming through the holder of a conservation easement, either during the term of the conservation easement or after the conservation easement is terminated, in relation to the land to which the conservation easement relates shall be construed as against any person to give rise to possessory or prescriptive property rights or privileges beyond those rights and privileges expressly granted in the conservation easement, even where such acts exceed the rights or privileges granted by the conservation easement.

2(4)Subject to this Act, a conservation easement runs with the land to which the conservation easement relates for the period set out in the conservation easement and is enforceable by the holder of the conservation easement, whether the conservation easement is positive or negative in nature, against the grantor of the conservation easement or any subsequent owner of the land even though the holder of the conservation easement owns no other land that would be accommodated or benefited by the conservation easement.

Purpose of a conservation easement

3A conservation easement shall be granted only for one or more of the following purposes:

(a)the conservation of ecologically sensitive land;

(b)the protection, enhancement or restoration of natural ecosystems;

(c)the protection or restoration of wildlife habitat or wildlife;

(d)the conservation of habitat of rare or endangered plant or animal species;

(e)the conservation or protection of soil, air, land or water;

(f)the conservation of significant biological, morphological, geological or palaeontological features;

(g)the conservation of culturally important, archaeologically important or scenically important places;

(h)the protection or use of land for outdoor recreation;

(i)the use of land for public education; and

(j)any other purpose prescribed by regulation.

Who may grant a conservation easement

4(1)Any owner of land in fee simple may grant a conservation easement.

4(2)An owner of land may grant more than one conservation easement respecting that land if there is no conflict between the rights and privileges granted and the obligations imposed by the conservation easements.

4(3)The Crown in right of the Province, the Crown in right of Canada or a municipality may grant a conservation easement to itself or to anyone eligible to be the holder of a conservation easement.

Who may hold a conservation easement

5Any of the following may hold a conservation easement:

(a)the Crown in right of the Province or any agency of the Crown in right of the Province;

(b)the Crown in right of Canada or any agency of the Crown in right of Canada;

(c)a municipality or any agency of a municipality;

(d)a non-profit corporation that has as one of its primary purposes a purpose mentioned in section 3; and

(e)any person, body or group or class of persons, bodies or groups eligible to hold an interest in land and prescribed by regulation for the purposes of this paragraph.

Registration of a conservation easement

6(1)The holder of a conservation easement shall submit the conservation easement for registration in the appropriate land registration office.

6(2)The registrar of the land registration office to which a conservation easement is submitted for registration shall register the conservation easement where the conservation easement

(a)contains the information required by regulation to be included in a conservation easement, and

(b)is, in the opinion of the registrar, fit for registration.

6(3)A conservation easement has no effect until the conservation easement has been registered in accordance with this Act in the appropriate land registration office.

6(4)The holder of a conservation easement shall, within thirty days after registration of the conservation easement, forward a copy of the conservation easement to the Minister.

Priority of other interests

7(1)A conservation easement registered under this Act does not have priority over an interest in the land to which the conservation easement relates registered or filed in the appropriate land registration office prior to the registration of the conservation easement.

7(2)The registration of a conservation easement under this Act does not abrogate or derogate from any authority or right under any other act or regulation to expropriate land.

Amendment of a conservation easement

8(1)A conservation easement may be amended by a written agreement between the holder of the conservation easement and the owner of the land to which the conservation easement relates.

8(2)A written agreement referred to in subsection (1) shall be submitted for registration in the appropriate land registration office.

8(3)The registrar of the land registration office to which a written agreement referred to in subsection (1) is submitted for registration shall register the written agreement where the written agreement is, in the opinion of the registrar, fit for registration.

8(4)An amendment of a conservation easement has no effect until the written agreement referred to in subsection (1) has been registered in accordance with this Act in the appropriate land registration office.

8(5)The holder of a conservation easement shall, within thirty days after registration of the written agreement referred to in subsection (1), forward a copy of the written agreement to the Minister.

Assignment of a conservation easement

9(1)A conservation easement may, subject to any terms in the conservation easement, be assigned by the holder of the conservation easement to anyone eligible to be the holder of a conservation easement.

9(2)An assignment of a conservation easement shall be submitted for registration in the appropriate land registration office.

9(3)The registrar of the land registration office to which an assignment of a conservation easement is submitted for registration shall register the assignment where the assignment is, in the opinion of the registrar, fit for registration.

9(4)An assignment of a conservation easement has no effect until the assignment has been registered in accordance with this Act in the appropriate land registration office.

9(5)The holder of an assignment of a conservation easement shall, within thirty days after registration of the assignment, forward a copy of the assignment to the Minister.

Termination of a conservation easement

10(1)A conservation easement may be terminated

(a)by a written agreement between the holder of the conservation easement and the owner of the land to which the conservation easement relates, or

(b)by The Court of Queen's Bench of New Brunswick on application

(i)by the holder of the conservation easement or the owner of the land to which the conservation easement relates, where the Court is of the opinion that continuation of the conservation easement would produce a severe hardship for the applicant, or

(ii)by any person whom the Court determines has a sufficient interest, where the holder of the conservation easement dies or ceases to exist.

10(2)A conservation easement may be discharged by registering in the appropriate land registration office

(a)where the conservation easement is terminated under paragraph (1)(a), the written agreement referred to in paragraph (1)(a), or

(b)where the conservation easement is terminated under paragraph (1)(b), a Court order obtained under paragraph (1)(b) directing the registrar to discharge the conservation easement.

10(3)The registrar of the land registration office to which a written agreement referred to in paragraph (1)(a) is submitted for registration shall register the written agreement where the written agreement is, in the opinion of the registrar, fit for registration.

10(4)The owner of the land to which the conservation easement relates shall, within thirty days after registration of the written agreement referred to in paragraph (1)(a) or a Court order obtained under paragraph (1)(b), forward a copy of the written agreement or the Court order, as the case may be, to the Minister.

10(5)Where the holder of a conservation easement dies or ceases to exist, any person wishing to make an application under subparagraph (1)(b)(ii) shall give thirty days' notice in writing to the Minister on behalf of the Crown in right of the Province of that person's intention to make such application, and the Minister on behalf of the Crown in right of the Province may, within that period, elect to assume the obligations of the holder of the conservation easement and accept the rights and privileges respecting the conservation easement.

10(6)Where the Minister on behalf of the Crown in right of the Province elects under subsection (5) to assume the obligations of the holder of the conservation easement and accept the rights and privileges respecting the conservation easement, the Minister on behalf of the Crown in right of the Province shall, within the period referred to in subsection (5),

(a)in writing notify the person wishing to make an application under subparagraph (1)(b)(ii) of such election, and

(b)register in the appropriate land registration office a document confirming such election.

10(7)Where, in accordance with paragraph (6)(a), the Minister on behalf of the Crown in right of the Province notifies the person wishing to make an application under subparagraph (1)(b)(ii) that the Minister on behalf of the Crown in right of the Province has elected to assume the obligations of the holder of the conservation easement and accept the rights and privileges respecting the conservation easement, an application under subparagraph (1)(b)(ii) shall not be made by that person and any such application, if made, shall be deemed discontinued.

10(8)Where a document referred to in paragraph (6)(b) has been registered in accordance with this Act in the appropriate land registration office, the Crown in right of the Province shall be deemed to be the holder of the conservation easement.

Obligations may be enforced

11(1)The obligations in a conservation easement, whether positive or negative, on the holder of the conservation easement, the grantor of the conservation easement or a subsequent owner of the land may be enforced by an action in The Court of Queen's Bench of New Brunswick by the holder of the conservation easement, the grantor of the conservation easement or a subsequent owner of the land.

11(2)In an action under subsection (1), the Court may do any one or more of the following:

(a)grant any relief or remedy available at common law to any of the parties referred to in subsection (1);

(b)order the defendant to take any action the Court considers appropriate to restore or remedy any harm to the land to which the conservation easement relates; and

(c)prohibit any activity on the land to which the conservation easement relates that the Court considers contrary to any of the purposes of the conservation easement.

Regulations

12The Lieutenant-Governor in Council may make regulations

(a)prescribing purposes for which a conservation easement may be granted;

(b)prescribing a person, body or group or a class of persons, bodies or groups who may hold a conservation easement;

(c)respecting the information that must be included in a conservation easement;

(d)defining any word or expression used in but not defined in this Act for the purposes of this Act, the regulations or both.

Commencement

13This Act or any provision of it comes into force on a day or days to be fixed by proclamation.


Last Modified: 10:59am , December 22, 1997