BILL 10 Plant Health Act

BILL 10

Plant Health Act

 

Chapter Outline

Definitions 1

causal organism — organisme causal

container — récipient

equipment — équipement

expenses — dépenses

handle — manipuler

infested — infesté

insect — insecte

inspector — inspecteur

Minister — Ministre

peace officer — agent de la paix

pest — parasite

place — lieu

plant — plante

plant disease — maladie des plantes

Seeds ActLoi relative aux semences

treat — traiter

type — type

vehicle — véhicule

weed — mauvaise herbe

Administration 2

Designation and powers of inspectors 3

Assistance to inspectors 4

Obstruction or hindrance of inspectors 5

False or misleading statements 6

Inspector’s orders 7

Quarantine before service 8

Compliance 9

Liability 10

Prohibition of action 11

Duty 12

Acts and omissions 13

Removal from detention or quarantine 14

Risk and expense 15

Notice to inspector 16

Knowledge of plant infestation 17

Transportation of infested plant 18

Requirement to treat 19

Documentation 20

Appeal 21

Evidence 22

Offences 23

Regulations 24

Repeals 25

Commencement 26

SCHEDULE A

 

 

 

 

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

Definitions

1 In this Act

"causal organism" means a bacterium, fungus, insect, mycoplasm, nematode, vector, viroid, virus, weed or other organism, disease or disease inciting agent that causes or is capable of causing injury or damage to a plant and that is designated as a causal organism by regulation;

"container" means any barrel, bag, bin, crate, carton, package or other container used for storing, containing or transporting plants;

"equipment" means any machinery, implement or other equipment used or intended to be used for handling a plant;

"expenses" includes losses, damages, disbursements, costs, fees and charges;

"handle" means to plant, grow, cultivate, rogue, treat, quarantine, harvest, load, transport, unload, store, hold, possess, contain, package, process, bring into the Province, disperse, distribute, sell, supply, offer to sell or supply, use or have care or control of, as the case may be;

"infested" means, with reference to any place, container, vehicle, equipment, plant, substance, object or thing, bearing a pest internally or externally, or being or having been exposed to a pest to the extent that, in the opinion of the Minister or an inspector, the place, container, vehicle, equipment, plant, substance, object or thing bears the pest internally or externally;

"insect" means an insect that is designated as an insect by regulation;

"inspector" means a person appointed as an inspector under section 3;

"Minister" means the Minister of Agriculture and Rural Development and includes persons designated by the Minister to act on the Minister’s behalf;

"peace officer" means a peace officer as defined in the Motor Vehicle Act;

"pest" means a causal organism, insect, plant disease or weed;

"place" includes any area, land, premises, structure or building of any description and any portion of them, other than all or any portion of a building used solely as a dwelling place;

 

"plant" means any bulb, corm, seedling, shrub, tree, tuber, rhizome, root, vine or the fruit, seed or any other part of any of them and includes plant matter and cull plants;

 

"plant disease" means any disease of or injury to a plant that is caused, directly or indirectly, by any bacterium, fungus, insect, mycoplasm, nematode, vector, viroid, virus, weed or other organism, and that is designated as a plant disease by regulation;

"Seeds Act" means the Seeds Act (Canada) and the regulations under that Act;

"treat" means to control, destroy, dispose of, eradicate, relocate or otherwise modify a pest or to clean, bury, control, destroy, disinfect, dispose of, eradicate, relocate or otherwise modify any place, container, vehicle, equipment, plant, substance, object or thing, as the case may be, for the purpose of controlling, destroying, disposing of or eradicating a pest or for the purpose of ensuring that this Act or the regulations are complied with;

"type" means a genus, species, variety or class of plant;

"vehicle" means a motor vehicle, cart, wagon, trailer or other means of conveyance and includes a vessel or a railway car and any load carried on, in or by or towed by any of them;

"weed" means any weed or the seed of any weed that is designated as a weed by regulation.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Administration

2 The Minister is responsible for the administration of this Act and may designate persons to act on the Minister’s behalf.

Designation and powers of inspectors

3(1) The Minister may designate persons as inspectors for the purposes of this Act and the regulations.

3(2) An inspector, before entering, inspecting and searching any place or vehicle while exercising any of the powers given to the inspector under this section, shall make a reasonable effort to obtain permission to enter, inspect and search from the person the inspector believes to be the owner or person having control of that place or vehicle.

3(3) An inspector who has not obtained permission under subsection (2) and who wishes to proceed to enter, inspect or search any place or vehicle while exercising any of the inspector’s powers under this section shall, before proceeding, apply for and obtain an entry warrant in accordance with the Entry Warrants Act.

 

3(4) Subsection (3) does not apply to an inspector who is stopping, inspecting, searching, seizing or detaining a vehicle under this section in circumstances where it is impracticable to apply for and obtain an entry warrant.

3(5) An inspector, at any reasonable time and upon presentation of proof of identification on a form provided by the Minister, may, for the purpose of ensuring that there has been compliance with this Act and the regulations,

(a) enter, inspect and search any place and inspect and search any container, equipment, plant, substance, object or thing where the inspector has reasonable and probable grounds to believe that a plant or pest was, is or will be present,

(b) stop, inspect and search any vehicle or equipment where the inspector has reasonable and probable grounds to believe that a plant or pest was, is or will be present,

(c) seize and detain any container, vehicle, equipment, plant, substance, object or thing that the inspector has reasonable and probable grounds to believe does or did contain or bear a plant or pest, as the case may be, until such time as an investigation can be made to determine the type of plant or to ascertain the existence of a pest, and

(d) take such samples of any plant, pest, substance, object or thing and carry out such tests and investigations as the inspector reasonably considers necessary.

3(6) An inspector who has reasonable and probable grounds to believe that a pest may be present in, on or in the vicinity of any place, container, vehicle, equipment, plant, substance, object or thing and that immediate steps must be taken to prevent dispersion of the pest may, together with such persons, materials and equipment the inspector considers necessary, enter any place or vehicle using the force the inspector considers necessary, and may take such further action the inspector considers necessary for the purpose of

(a) taking samples, conducting tests or doing any other thing necessary to determine whether or not the pest is present, and

(b) if the pest is found to be present, treating the place, container, vehicle, equipment, plant, substance, object or thing for the purpose of controlling, destroying, disposing of or eradicating the pest.

3(7) An inspector may request the assistance of a peace officer, and the peace officer shall give all reasonable assistance to the inspector to enable the inspector to carry out the inspector’s duties and functions under this section.

3(8) An inspector may seize and detain for the purposes of evidence

(a) any container, vehicle, equipment, plant, pest, substance, object or thing or a sample of any of them, and

(b) any records, other documentation or other information regardless of physical form or characteristics, and such software, hardware or other equipment necessary to access them as the inspector may reasonably require,

 

that the inspector discovers while acting under this Act or the regulations and believes, on reasonable and probable grounds, may afford evidence of a violation of a provision of or a failure to comply with this Act or the regulations.

 

Assistance to inspectors

4 The owner or person in charge of, and every person found in, any place and any employees or agents of the owner or person in charge, and the owner or person in charge of any container, vehicle, equipment, plant, pest, substance, object or thing shall give all reasonable assistance to an inspector to enable the inspector to carry out the inspector’s duties and functions under this Act and the regulations, and shall furnish the inspector with such records, other documentation and other information with respect to the administration of this Act and the regulations and such software, hardware or other equipment necessary to access them as the inspector may reasonably require.

 

 

Obstruction or hindrance of inspectors

5 No person shall obstruct or hinder an inspector in the carrying out of the inspector’s duties and functions under this Act or the regulations.

 

False or misleading statements

6 No person shall knowingly make a false or misleading statement, either orally or in writing, to inspectors or other persons engaged in carrying out their duties and functions under this Act or the regulations.

Inspector’s orders

7(1) An inspector who has determined the presence of a pest in, on or in the vicinity of any plant may

(a) order that the plant be treated in the manner and location, by the persons, within the period of time and in accordance with any other directions set out in the order, or

(b) by order prohibit the removal from a specified location of any container, vehicle, equipment, plant, pest, substance, object or thing that is likely to bring about the dispersion of the pest, in accordance with the directions set out in the order.

7(2) An inspector who has determined the presence of a pest in, on or in the vicinity of any place, container, vehicle, equipment, plant, substance, object or thing may order that the pest be treated in the manner and location, by the persons, within the period of time and in accordance with any other directions set out in the order.

7(3) An inspector who has determined the presence of a pest in, on or in the vicinity of any place, container, vehicle, equipment, substance, object or thing where it may reasonably be expected to have infested, to be infesting or to infest a plant may order that the place, container, vehicle, equipment, substance, object or thing be treated in the manner and location, by the persons, within the period of time and in accordance with any other directions set out in the order.

 

7(4) An inspector who has determined the presence of a pest in or on the soil of any place or in, on or in the vicinity of any plant that is growing or grew in or on the soil of any place may order the owner, occupier or other person having control of the place to desist from planting any plant that may become infested by that pest in the manner and location, by the persons, within the period of time and in accordance with any other directions set out in the order.

7(5) An inspector who has reasonable and probable grounds to believe that a pest is present in, on or in the vicinity of any place where plants are or are intended to be handled or in or on any container, vehicle or equipment containing or intended or used to contain any plant may order that the place be quarantined and that the plants, container, vehicle or equipment be detained, in the manner and location, by the persons, within the period of time and in accordance with any other directions set out in the order, until an investigation is made and a determination of the question is reached.

 

7(6) If an inspector has reasonable and probable grounds to believe that a person is handling a plant or pest in violation of a provision of this Act or the regulations, the inspector may make an order directing any person in possession or control of the plant or pest to take any action that the inspector is authorized under this Act or the regulations to take and that the inspector reasonably considers necessary, in the manner and location, within the period of time and in accordance with any other directions set out in the order, in order to ensure that

 

 

(a) the person ceases the activity, and

(b) the person and the plant or pest are in compliance with the provision.

7(7) A person who is the subject of an order under this section shall comply fully with all directions set out in the order.

Quarantine before service

8 If an inspector has made every reasonable effort to serve a person with an order under this Act or the regulations without success, that or another inspector may quarantine any place, container, vehicle, plant, pest, substance, object or thing that is the subject of the order until the person is served.

 

Compliance

9(1) If the Minister or an inspector makes an order and serves it under this Act and the regulations, and if the order or any part of it is not fully complied with, for any reason, within any period of time set out in the order, the Minister, together with such persons, materials and equipment the Minister considers necessary, may enter any place, using the force the Minister considers necessary, and may take such further action the Minister considers necessary

(a) in order to effect compliance with or to carry out the order, and

(b) to deal effectively with or prevent damage or further damage arising from the non-compliance with the order, including to inspect, search, quarantine, detain, seize, treat, test, investigate or otherwise deal with any place, container, vehicle, equipment, plant, pest, substance, object or thing, as the case may be, in the manner and location, by the persons, within the period of time and otherwise as considered appropriate by the Minister.

 

 

 

9(2) The Minister or an inspector acting under subsection (1) may request the assistance of a peace officer and the peace officer shall give all reasonable assistance to the Minister or the inspector to enable the Minister or the inspector to carry out his or her duties and functions under this section.

9(3) If a person

 

 

 

 

 

 

 

 

 

(a) refuses to give all reasonable assistance to enable the Minister, an inspector or any other persons acting on behalf of the Minister to carry out their duties and functions under this Act and the regulations,

 

(b) obstructs or hinders the Minister, an inspector or any other persons acting on behalf of the Minister in the carrying out of their duties and functions under this Act and the regulations, or

(c) being a person against whom an order is made under this Act or the regulations by the Minister or by an inspector, does not comply for any reason with the order or part of it within any period of time set out in the order,

 

the Minister, inspector or other persons may make an application to The Court of Queen’s Bench of New Brunswick or a judge of that Court for any or any combination of the orders described in subsection (4), without proof that damage has been, is being or may be done and whether or not a penalty has been provided under this Act or the regulations for the refusal, obstruction, hindrance or non-compliance.

9(4) In a proceeding under subsection (3), the judge may make

(a) an order restraining the continuance or repetition of the refusal, obstruction, hindrance or non-compliance,

(b) such order as is required to ensure that the Minister, inspector or other persons may carry out their duties and functions under this Act and the regulations, including authorizing the Minister, inspectors and other persons acting on behalf of the Minister to enter any place in order to exercise those duties and functions and to take all further action reasonably necessary to implement the directions contained in the order,

 

(c) such order as is required to effect compliance with or carry out all or any part of any order in respect of which the action was instituted,

(d) such further order as may be necessary to enable the Minister, an inspector or another person acting on behalf of the Minister to inspect, search, quarantine, detain, seize, treat, test, investigate or otherwise deal with any place, container, vehicle, equipment, plant, pest, substance, object or thing, as the case may be, in the manner and location, by the persons, within the period of time and otherwise as required by the Minister, inspector or other person in order to

 

 

 

(i) deal effectively with or prevent damage or further damage arising from the refusal, obstruction, hindrance or non-compliance, or

 

 

(ii) obtain evidence of a violation of, or a failure to comply with, a provision of this Act or the regulations, and

(e) such order as to costs and the recovery of any expenses incurred in connection with the proceeding or the carrying out of the order as the judge sees fit.

9(5) An order made under subsection (4) that is appealed remains in effect pending the disposition of the appeal and no order staying the effect of the order shall be made, notwithstanding any provision of any other Act or any regulation or rule of court to the contrary.

 

Liability

10(1) Where the Minister or an inspector, as the case may be, originally makes an order under this Act or the regulations, and action is subsequently taken under subsection 9(1) or under a judge’s order made under subsection 9(4) in relation to the original order, the Minister may serve on the person against whom the original order was made a statement and demand for payment of expenses incurred in carrying out the action and the amount of the expenses may be recovered by the Minister by action in a court of competent jurisdiction as a debt owed to Her Majesty in right of the Province.

 

 

10(2) The Minister, inspectors and any other persons acting on behalf of the Minister when carrying out their duties and functions under this Act and the regulations are not liable to any person for

 

(a) any expenses referred to in subsection (1),

(b) the cost or value of any plant that is quarantined, detained, seized, treated, tested, investigated or otherwise dealt with under this Act or the regulations, or

 

(c) any other compensation that may be claimed or payable as the result, directly or indirectly, of the quarantine, detention, seizure, treatment, testing or investigation of, or other action in relation to, any plant under this Act or the regulations.

 

Prohibition of action

11 No action lies against the Minister, any inspector, any other persons acting on behalf of the Minister or any peace officer in relation to any act authorized under this Act or the regulations, any act performed in conformity with an order of the Minister, an inspector or a court made under or in relation to this Act or the regulations or any act performed in good faith that the person performing it believed to be authorized under such an order or under this Act or the regulations.

 

 

 

Duty

12 Nothing in this Act or the regulations shall be construed to impose a duty on the Minister, an inspector or any other persons acting on behalf of the Minister to carry out any of their duties or functions under this Act or the regulations.

 

Acts and omissions

13 No authority to make or to seek the making of an order, to take any other action or proceeding or to seek any remedy, that is authorized or available under this Act or the regulations in relation to any act or omission, and no civil remedy for any act or omission, is suspended or affected by reason that the act or omission is an offence under this Act or the regulations.

 

 

Removal from detention or quarantine

14 No person shall remove from detention or quarantine any container, vehicle, equipment, plant, pest, substance, object or thing seized and detained or seized and quarantined under this Act or the regulations unless acting in accordance with this Act and the regulations.

 

Risk and expense

15 Any container, vehicle, equipment, plant, pest, substance, object or thing seized and detained or seized and quarantined under this Act or the regulations shall at all times be at the risk and expense of the owner.

Notice to inspector

16(1) A person who owns, leases or otherwise utilizes more than one-quarter hectare of land for the purpose of growing one species of plant and who discovers or suspects that the person’s plants are infested shall immediately notify an inspector.

 

16(2) A person who occupies a place where more than one-quarter hectare of land is being utilized for the purpose of growing one species of plant and who discovers or suspects that those plants are infested shall immediately notify an inspector.

16(3) A person who has conducted field or laboratory tests on a plant that confirm that the plant is infested shall immediately notify an inspector of the results of the tests.

Knowledge of plant infestation

17 No person shall knowingly have possession of a plant that is infested, or sell, supply, barter or exchange a plant that is infested or offer to do so without first obtaining the written consent of an inspector.

Transportation of infested plant

18 No person shall knowingly transport on a highway as defined in the Motor Vehicle Act a plant that is infested without first obtaining the written consent of an inspector.

 

Requirement to treat

19 No person shall knowingly use any container, vehicle or equipment that has been infested with a pest without first treating it so as to destroy or eradicate the pest.

Documentation

20(1) Every order, notice or demand of the Minister or of an inspector under this Act or the regulations shall be in writing and shall contain reasons for its making and for any terms and conditions set out in it and a copy shall be served on all persons who, in the opinion of the Minister or the inspector, are affected by it.

 

20(2) An order, notice, demand, designation, authorization, decision or other document that is to be delivered or given to or served on a person under this Act or the regulations may be delivered or given to or served on the person by personal service or by being sent to the person by registered mail.

 

Appeal

21(1) A person affected by an order, demand or decision of the Minister or an inspector may appeal in the circumstances and manner provided for in the regulations, to the person or body of persons established under the regulations and otherwise in accordance with the regulations.

 

21(2) Subject to subsection 9(5), an order, demand or decision appealed from under subsection (1) remains in effect pending the disposition of the appeal and no order staying the effect of the order, demand or decision shall be made, unless the regulations provide to the contrary.

 

 

Evidence

22(1) In this section

"official document" means

(a) any original or certified copy of an order, notice, demand, designation, authorization, decision or other document purporting to be signed by the Minister or an inspector, or

 

(b) a statement purporting to be signed by the Minister that a person does or does not have authority under this Act or the regulations with respect to any activity designated in the statement.

 

22(2) In a prosecution with respect to an offence under this Act or the regulations, an official document shall be

(a) received in evidence by any court in the Province without proof of the appointment, authority or signature of the person purporting to have signed it or the person purporting to have certified the copy,

 

(b) in the absence of evidence to the contrary, proof of the facts stated in the official document, and

(c) where the name of the person referred to in the official document is that of the accused, in the absence of evidence to the contrary, proof that the person named in the official document is the accused.

22(3) An official document shall not be received in evidence unless the party intending to produce it has, before the trial or other proceeding, given to the person against whom it is to be produced reasonable notice of the party’s intention, together with a copy of the official document.

Offences

23(1) Subject to subsection (2), a person who violates or fails to comply with a provision of the regulations commits an offence.

23(2) For the purposes of Part II of the Provincial Offences Procedure Act, a person who violates or fails to comply with a provision of the regulations in respect of which a category has been prescribed by regulation commits an offence of the category prescribed by regulation.

23(3) A person who violates or fails to comply with a provision of this Act that is listed in Column I of Schedule A commits an offence.

 

23(4) For the purposes of Part II of the Provincial Offences Procedure Act, each offence listed in Column I of Schedule A is punishable as an offence of the category listed beside it in Column II of Schedule A.

 

23(5) Where an offence under this Act or the regulations continues for more than one day,

(a) the minimum fine that may be imposed is the minimum fine set by the Provincial Offences Procedure Act multiplied by the number of days during which the offence continues, and

 

(b) the maximum fine that may be imposed is the maximum fine set by the Provincial Offences Procedure Act multiplied by the number of days during which the offence continues.

 

Regulations

24(1) The Lieutenant-Governor in Council may make regulations

(a) respecting duties and powers of inspectors in addition to those established in this Act;

 

(b) respecting the taking of samples of plants or pests for testing and the testing of plants, pests or samples for any purpose under this Act or the regulations;

 

(c) respecting the application for and the issuance, holding, amendment, suspension, cancellation, reinstatement and renewal of permits under and for the purposes of this Act and the regulations;

(d) respecting grounds on which the issuance, amendment, reinstatement or renewal of permits may be refused and authorizing the Minister, in the Minister’s discretion, to establish such grounds;

(e) respecting terms and conditions that may be imposed in relation to the issuance, holding, amendment, reinstatement and renewal of permits, including authorizing the Minister, in the Minister’s discretion, to establish such terms and conditions;

 

(f) designating causal organisms, insects, plant diseases or weeds for the purposes of this Act and the regulations;

(g) respecting the handling of plants for the purposes of this Act and the regulations;

(h) respecting the handling of any container, vehicle, equipment, pest, substance, object or thing for the purposes of this Act and the regulations;

(i) respecting the handling of any substance, object or thing that serves or could serve as a host for a pest, for the purposes of controlling or eradicating any pest;

(j) respecting the detention or confiscation of any container, vehicle, equipment, plant, pest, substance, object or thing for the purposes of this Act and the regulations;

(k) respecting the issuance of bulk certificates;

(l) respecting the issuance of certificates respecting the testing, infestation, treatment, origin or type of plants or any other matter concerning plants;

(m) respecting any matter in relation to the identification of plants and evidence to be obtained, reported or retained respecting that identification by any person;

(n) respecting the keeping of records, accounts and other information and the reporting of information for the purposes of this Act and the regulations;

(o) respecting the establishment and the disestablishment of any area of the Province as a plant production area, including establishing the boundaries of such an area;

(p) respecting the circumstances in which an appeal may be made under this Act and the regulations, the grounds of appeal and the staying of orders, demands and decisions under appeal;

 

 

(q) providing for the termination of the Potato Disease Advisory Board as established under the Potato Disease Eradication Act, including providing for the revocation of appointments or designations, the nullification of all contracts, agreements and orders in relation to the appointment of any members of the Board or between the Board and others, the prohibition of proceedings arising in relation to the termination, the transfer of documentation, other information and materials, proceedings and other matters from the Potato Disease Advisory Board to the body, bodies, person or persons established or designated under paragraph (r), the completion of proceedings being held by the Potato Disease Advisory Board and any other matter or thing arising from the termination;

 

 

 

(r) respecting the establishment, composition and administration of a body or bodies, or the designation of a body, bodies, person or persons, to hear appeals under this Act and the regulations and the remuneration, compensation and reimbursement of, procedures to be followed in relation to, conduct of hearings by, exercise of powers by and rendering of decisions by, and any other matter in relation to, the functioning of the body, bodies, person or persons in considering appeals;

 

 

 

 

 

(s) respecting the rights of the Minister and others to compensation in relation to expenses incurred under this Act and the regulations and the procedure for the collection of such expenses, including the sharing of proceeds where the amount available or the amount collected is not sufficient to satisfy all claims;

 

(t) respecting the making and enforcement of orders and the adoption of the provisions of this Act with the necessary modifications, for the purposes of enforcing the provisions of the regulations;

 

(u) prescribing, in respect of offences under the regulations, categories of offences for the purposes of Part II of the Provincial Offences Procedure Act;

(v) respecting fees for the purposes of this Act and the regulations;

(w) respecting forms and providing for their use;

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

(y) prescribing anything required by this Act to be prescribed;

(z) generally for the better administration of this Act.

24(2) Regulations made under subsection (1)

 

(a) may contain provisions that are general in their application,

(b) may contain provisions that apply only to one or to more than one area of the Province,

 

(c) may contain different provisions for different areas of the Province, or

 

(d) may apply to one or more types of plants, to one or more causal organisms, insects, plant diseases or weeds or to any combination of them or may have application differently on any other basis.

 

Repeals

25(1) The Injurious Insect and Pest Act, chapter I-9 of the Revised Statutes, 1973, is repealed.

 

25(2) The Plant Diseases Act, chapter P-9 of the Revised Statutes, 1973, is repealed.

25(3) The Potato Disease Eradication Act, chapter P-9.4 of the Acts of New Brunswick, 1979, is repealed.

25(4) The Weed Control Act, chapter W-7 of the Revised Statutes, 1973, is repealed.

 

Commencement

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

SCHEDULE A

Column I

Section

 

Column II

Category of Offence

4 C

5 E

6 F

7(7) F

14 F

16(1) F

16(2) F

16(3) F

17 F

18 F

19 F

23(1) B