Maritime Link Granted Expropriation Power
6/18/2014 8:10 AM
The Nova Scotia government has approved the Maritime Link project that will see hydroelectric electricity produced at Muskrat Falls, Newfoundland and Labrador, exported via undersea cable and travel across Nova Scotia to points west of the province. To accomplish the construction of the Maritime Link, the Nova Scotia Government passed the Maritime Link Act, SNS 2012, c 9 in 2012.
The Maritime Link Act provides the power of expropriation to the developer of the Maritime Link. At section 5B, the Act provides:
5B (1) An approved applicant may expropriate any land that the approved applicant considers necessary or useful for the Maritime Link Project.
(2) Upon a plan and description of the land being expropriated, signed by a person with legal capacity to sign for the approved applicant, being filed or registered in the registry of deeds for the registration district in which the land is located, the land is vested in the approved applicant.
(3) The Expropriation Act applies to an expropriation under this Section and the approved applicant is deemed to be the expropriating authority for the purpose of that Act.
(4) Notwithstanding the Expropriation Act, the Governor in Council is the approving authority for the purpose of that Act in respect of land expropriated pursuant to this Section.
The “approved applicant” for the Maritime Link project in Nova Scotia is NSP Maritime Link Incorporated. As such, that company has the power to expropriate land for the purpose of constructing the infrastructure necessary to complete this project.
The power of expropriation granted in the Maritime Link Act is broad: “any land that [Maritime Link Incorporated] considers necessary or useful” may be expropriated. The words used in this grant of power govern Maritime Link Incorporated. First, the term “considers” places a very low threshold on the expropriator in terms of the requirements to make the decision to expropriate. For example, this is less onerous than if the legislation required “proves” instead of “considers”. In this sense, it seems that NSP Maritime Link Incorporated only needs to consider (think or believe) that a parcel of land is necessary or useful.
Second, the purpose of the expropriation is also very broad: “necessary or useful”. The “necessary” part of the power would be restrictive as it would appear that if challenged, Maritime Link Incorporated would have to show that without that portion of land, the project could not succeed. However, the inclusion of the term “or useful” greatly lowers the threshold for expropriation as “usefulness” can encompass a much broader range of considerations, such as taking additional easements for convenient access or taking additional land to mask the presence of the infrastructure.
Finally, the Maritime Link Act provides that the Expropriation Act applies. Because the Maritime Link Act places no restrictions on how the Expropriation Act, it appears that the definitions of “land” and “owner” under the Expropriation Act will govern. These terms are broad and generally favour the landowner. Also, the procedural aspects of the Expropriation Act apply for compensation requirements and hearings at the Utility and Review Board.
If you have questions or would like to discuss this topic further, please contact Robert H. Pineo at Patterson Law at 1-888-897-2001.
Please note that this article is meant to provide information only and is not intended to confer legal advice or opinion. If you have any further questions please consult a lawyer. Please note as well that many of the statements are general principles which may vary on a case by case basis.