The Forest Health Protection Act

The Forest Health Protection Act, C.C.S.M. c. F151 (Assented to November 8, 2007) bilingual version (HTML) Table of Contents Section PART 1 INTRODUCTORY PROVISIONS 1 Definitions 2 Purpose 3 Designating forest threats PART 2 INVASIVE FOREST THREAT PREVENTION 4 Invasive forest threat prevention programs 5 Reporting requirement 6 No importing invasive forest threats 7 Restricting entry of forest products PART 3 FOREST THREAT MANAGEMENT 8 Forest threat management programs 9 Minister's powers on Crown land 10 Directions re timber harvesting 11 Detection of forest threats 12 Forest threat notices 13 Preventive quarantine orders 14 Forest health orders 15 Appeals 16 Consequences of failing to comply with order 17 Forest threat response zones 18 Forest threat response zone requirements 19 Seizure of affected forest products PART 4 ENFORCEMENT, OFFENCES AND PENALTIES 20 Inspectors and officers 21 Entry and inspection powers 22 Warrant to enter dwelling place 23 Warrant for search and seizure 24 Offences 25 Penalties 26 Limitation period PART 4.1 HERITAGE TREE PROGRAM 26.1 Heritage tree program 26.2 Repealed 26.3 Nominations of trees 26.4 Public notice of heritage trees 26.5 Heritage tree protection on Crown land PART 5 MISCELLANEOUS PROVISIONS 27 Repealed 27.1 Arborist certification requirement 28 Municipal forest threat management program 29 Agreements 30 Compensation 31 Protection from liability 32 Crown bound 33 Regulations PART 6 CONSEQUENTIAL AMENDMENTS, REPEAL, C.C.S.M. REFERENCE AND COMING INTO FORCE 34 Consequential amendments 35 Repeal 36 C.C.S.M. reference 37 Coming into force HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows: PART 1 INTRODUCTORY PROVISIONS Definitions 1(1) The following definitions apply in this Act. "affected" , in relation to a tree or forest product, means infected by, or infested with, a forest threat. (« atteint ») "arborist" means a person who, for compensation, plants, prunes and treats woody plants other than Crown timber as defined in The Forest Act . (« arboriculteur ») "director" means the person appointed under Part 3 of The Public Service Act as the director for the purpose of this Act. (« directeur ») "forest product" means (a) a tree that has been cut down or removed from the ground; (b) any type of timber, logs, firewood, or wood chips, and any other processed or unprocessed product obtained from a tree; and (c) any item containing wood. (« produit de la forêt ») "forest threat" means an insect, disease, organism or other thing designated as a forest threat under subsection 3(1). (« menace contre les forêts ») "forest threat response zone" means an area designated as a forest threat response zone under section 17. (« zone d'intervention ») "inspector" means a person appointed or designated as an inspector under subsection 20(1). (« inspecteur ») " invasive forest threat" means a forest threat that is designated as an invasive forest threat under subsection 3(2). (« menace exotique ») "minister" means the minister appointed by the Lieutenant Governor in Council to administer this Act. (« ministre ») "municipality" includes a local government district. (« municipalité ») "officer" means (a) an officer as defined in The Forest Act ; (a.1) a conservation officer appointed under The Conservation Officers Act ; and (b) a person appointed or designated as an officer under subsection 20(2). (« agent ») "person" includes a municipality. (« personne ») "tree" means a tree or shrub at any stage of development. (« arbre ») Reference to "Act" includes regulations 1(2) In this Act, a reference to "this Act" includes the regulations made under this Act. S.M. 2015, c. 4, s. 23 ; S.M. 2021, c. 11, s. 65 . Purpose 2 The purpose of this Act is to protect the health of all trees and forests in Manitoba by (a) preventing forest diseases and insects that are not native to Manitoba from entering or becoming established in the province; (b) detecting, containing, suppressing and eradicating forest diseases and insects in Manitoba; and (c) developing programs to protect and promote the overall health of trees and forests and their ecosystems in Manitoba. Forest threats 3(1) The minister may, by regulation, designate an insect, disease, organism or other thing that is injurious to trees as a forest threat. Invasive forest threats 3(2) The minister may, by regulation, designate a forest threat that is not native to Manitoba and not yet established in Manitoba as an invasive forest threat. PART 2 INVASIVE FOREST THREAT PREVENTION Invasive forest threat prevention programs 4 The minister may establish programs to prevent invasive forest threats from entering or becoming established in Manitoba. Reporting requirement 5 A person who knows or has reasonable grounds to believe that an invasive forest threat is present in Manitoba must immediately provide the director with all information he or she has about it. No importing invasive forest threat 6 Unless authorized by the director or the regulations, no person shall knowingly bring into Manitoba (a) an invasive forest threat; or (b) a forest product that is affected by an invasive forest threat. Restricting entry of forest products 7 The minister may, by regulation, prohibit or regulate the entry into Manitoba of forest products or classes of forest products that may be affected by an invasive forest threat. PART 3 FOREST THREAT MANAGEMENT FOREST THREAT MANAGEMENT PROGRAMS Forest threat management programs 8 The minister may establish programs to detect, contain, suppress and eradicate forest threats in Manitoba. Minister's powers on Crown land 9 The minister may take any action that he or she considers necessary to contain, suppress and eradicate forest threats on Crown land in accordance with a forest threat management program established under section 8. Directions re timber harvesting 10 When a forest threat is found on Crown land in respect of which a timber cutting right has been granted under The Forest Act , the holder of the cutting right must, notwithstanding The Forest Act and the terms of the timber cutting right, comply with any written direction from the director respecting (a) the areas where timber may be harvested; and (b) the manner in which timber harvesting is to be carried out. DETECTION OF FOREST THREATS Detection of forest threats 11(1) An inspector or officer may, at any reasonable time and without a warrant, enter upon any land to inspect trees and forest products on the land to determine if they are affected by a forest threat. Inspection powers 11(2) When conducting an inspection, an inspector or officer may (a) take a sample from a tree or forest product for analysis; (b) remove a forest threat or a suspected forest threat for examination or analysis; and (c) use any equipment or other materials that are required to conduct the inspection. Expert assistance 11(3) When conducting an inspection, an inspector or officer may be accompanied and assisted by any person with technical or professional expertise. Forest threat notices 12(1) If an inspector or officer has reasonable grounds to believe that a tree or forest product might be affected by a forest threat, the inspector or officer may post a forest threat notice on the tree or forest product. Form of forest threat notice 12(2) The forest threat notice must (a) be in a form approved by the director; and (b) state that no person may (i) move the forest product on which the notice is posted, or (ii) prune or cut down the tree on which the notice is posted, until after the date specified on the notice, which must not be more than 30 days after the notice is posted. Prohibitions 12(3) Until after the date specified on the forest threat notice, no person shall (a) move or tamper with the forest product on which the notice is posted; (b) prune or cut down the tree on which the notice is posted; or (c) remove, deface or interfere with the notice, unless authorized to do so by an inspector or officer. ORDERS Preventive quarantine orders 13(1) An inspector or officer may serve the owner or occupier of land with a preventive quarantine order if (a) the inspector or officer has reasonable grounds to believe that a forest threat that (i) is capable of causing significant damage to trees in a relatively short period of time, or (ii) is extremely contagious or mobile, might be present on the land, or on land nearby; or (b) a forest threat has been found on land nearby. Terms of preventive quarantine order 13(2) A preventive quarantine order may require a person to do one or more of the following: (a) ensure that the trees specified in the order are not pruned or cut down while the order is in effect; (b) ensure that the forest products specified in the order are not moved or tampered with while the order is in effect; (c) on or before a specified date, take the measures specified in the order to prevent the spread of a forest threat to or from the land, including applying disinfecting, preventive or therapeutic treatments to trees or forest products or disposing of items in a specified manner. Term of order 13(3) A preventive quarantine order may be made for a period not exceeding 90 days. Forest health orders 14(1) When a forest threat has been found on land owned or occupied by a person, an officer may serve a forest health order on that person. Terms of order 14(2) A forest health order may require a person, on or before a date specified in the order, which must be at least 20 days after the order is served, to do one or more of the following on the land the person owns or occupies: (a) cut down or prune the trees specified in the order, and dispose of them in the manner specified in the order; (b) remove the forest products specified in the order and dispose of them in the manner specified in the order; (c) apply disinfecting, preventive or therapeutic treatments to trees or forest products that are affected or that are in danger of becoming affected; (d) take other measures specified in the order to eradicate the forest threat or prevent it from spreading from the land. Appeals 15(1) A person who is the subject of a preventive quarantine order or a forest health order may appeal the order by giving written notice to the director within 10 days after the order is served. Notice of appeal 15(2) The notice of appeal must state the reasons for the appeal and any facts relied on by the appellant. Stay 15(3) Pending the outcome of the appeal, the filing of an appeal operates (a) as a stay of a forest health order; or (b) as a stay of a requirement in a preventive quarantine order that a person take specified measures to prevent the spread of a forest threat, but the filing of the appeal does not operate as a stay of a requirement in the order to ensure that trees are not pruned or cut down or that forest products are not moved. Director's power on appeal 15(4) As soon as is reasonably practicable after receiving a notice of appeal, the director must consider the appeal and confirm the order, quash it, or vary it in any manner the director considers appropriate. Notice to appellant 15(5) The director must give notice of his or her decision on the appeal to the appellant within seven days after making the decision. Consequences of failing to comply with order 16(1) If a person fails to comply with a preventive quarantine order or a forest health order, an officer may (a) enter the land in question, without the consent of the owner or occupant, and carry out the measures specified in the order, or cause them to be carried out; and (b) be accompanied by any other persons, and use any equipment, required to carry out the measures specified in the order. Order to pay costs 16(2) The director may, by order, require the person who failed to comply with the preventive quarantine order or forest health order to pay the costs of any action taken under subsection (1). However, the director may waive the costs, or a portion of the costs, if he or she considers it appropriate. Enforcement of order 16(3) An order to pay costs may be filed in the Court of King's Bench and enforced as if it were an order of that court. Charging costs to municipality 16(4) When an order to pay costs under subsection (2) is made against a person who is an owner of the land on which the costs were incurred, the minister may charge the amount of those costs to the municipality in which the land is located. Cost recovery by municipality 16(5) When costs are charged to a municipality under subsection (4), the municipality must pay to the government the amount charged. The municipality may then add that amount to the real property taxes imposed by the municipality and collect that amount in the same manner and with the same priority as those taxes. FOREST THREAT RESPONSE ZONES Forest threat response zones 17 The minister may, by regulation, designate an area of the province as a forest threat response zone if (a) a forest threat has been found in the area that (i) is capable of causing significant damage to trees in a relatively short period of time, or (ii) is extremely contagious or mobile; or (b) trees in the area have become affected by a forest threat to such an extent that there is a significant risk that the forest threat may spread outside the area. Forest threat response zone requirements 18(1) The minister may, by regulation, do one or more of the following with respect to a specific forest threat response zone: (a) prohibit or regulate activities that may take place in the zone; (b) prohibit or regulate the movement of forest products or other specified items within, into or out of the zone; (c) require that all trees of a specified species that are in the zone or in a specified area of the zone — whether affected by a forest threat or not — be cut down or treated in a specified manner; (d) require that specified forest products in a zone be destroyed or treated in a specified manner; (e) prohibit the cultivation or growth of a specified species of tree or plant in the zone. Powers of officers 18(2) When a regulation is made under clause (1)⁠(c) or (d), an officer may (a) enter the land in question without the consent of the owner or occupant and, at the expense of the government, carry out the measures specified in the regulation, or cause them to be carried out; and (b) be accompanied by any other persons, and use any equipment, required to carry out the measures specified in the regulation. SEIZING AFFECTED FOREST PRODUCTS Seizure of affected forest products 19(1) When conducting an inspection under section 11 or otherwise acting under the authority of this Act, an inspector or officer may, without a warrant, seize a forest product that is affected by a forest threat that (a) is capable of causing significant damage to trees in a relatively short period of time; or (b) is extremely contagious or mobile. Storage of seized forest products 19(2) An affected forest product that has been seized may be stored at the location where it was seized or moved to a secure location selected by the inspector or officer. Operator must comply with direction 19(3) The operator of a vehicle that is being used to transport affected forest products that have been seized must transport the forest products to a location specified by an inspector or officer and comply with any other direction from the inspector or officer respecting the manner in which the products are to be transported. Disposition of seized forest products 19(4) An inspector or officer may treat, destroy or otherwise dispose of seized forest products in accordance with the regulations. PART 4 ENFORCEMENT, OFFENCES AND PENALTIES Inspectors 20(1) The minister may appoint or designate persons or classes of persons as inspectors for the purposes of this Act. Officers 20(2) The minister may appoint or designate persons or classes of persons as officers for the purpose of enforcing this Act. Restrictions on appointment or designation 20(3) When appointing or designating inspectors or officers, the minister may impose restrictions or limitations on the powers of an inspector or officer. The inspector or officer must comply with any restrictions or conditions imposed by the minister. Identification 20(4) An inspector or officer exercising a power under this Act must produce identification on request. Entry and inspection powers 21(1) An officer may, at any reasonable time and when reasonably required to determine compliance with this Act, (a) stop and inspect any vehicle and enter and inspect any land that the officer has reasonable grounds to believe contains trees or other forest products; (b) inspect any tree or forest product, and take a sample from it; and (c) require any person to produce for inspection or copying any record or document that the officer believes on reasonable grounds contains information relevant to the administration of this Act. Operator of vehicle must stop 21(2) When an officer signals or requests a person operating a vehicle to stop, the person must immediately bring the vehicle to a stop and must not proceed until permitted to do so by the officer. Warrant to enter dwelling place 22(1) An officer may not enter a dwelling place except with the consent of the occupant or under the authority of a warrant. Authority to issue warrant 22(2) A justice who is satisfied by information on oath that (a) the conditions for entry described in section 21 exist in relation to a dwelling place; (b) entry to the dwelling place is necessary for a purpose relating to the administration of this Act; and (c) entry to the dwelling place has been refused or there are reasonable grounds to believe that entry will be refused; may at any time issue a warrant authorizing the officer and any other person named in the warrant to enter the dwelling place, subject to any conditions that may be specified in the warrant. Warrant for search and seizure 23(1) A justice, upon being satisfied by information on oath that there are reasonable grounds to believe that (a) an offence under this Act is being or has been committed; and (b) there is to be found in any place or premises any thing that will afford evidence of the offence; may at any time issue a warrant authorizing an officer and any other person named in the warrant to enter and search the place or premises for any such thing, and to seize it and as soon as practicable bring it before a justice, or report on it to a justice, to be dealt with according to law. Power without warrant 23(2) Despite subsection (1), an officer may exercise the power of search and seizure without a warrant if the conditions for obtaining a warrant exist but it is not practicable in the circumstances to obtain one. In that case, the item seized shall be brought before, or reported to, a justice, who shall deal with it according to law. OFFENCES AND PENALTIES Offences 24(1) A person is guilty of an offence who (a) contravenes a provision of this Act; (b) fails to comply with an order made under this Act; (c) makes a false statement to an inspector, officer or other person acting under the authority of this Act; or (d) hinders, obstructs or interferes with or attempts to hinder, obstruct or interfere with an inspector, officer or other person acting under the authority of this Act. Continuing offence 24(2) When an offence under this Act continues for more than one day, the person committing the offence is guilty of a separate offence for each day the contravention continues. Penalties for individuals 25(1) Except as provided in subsection (2), 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 $25,000.; and (b) for each subsequent offence, to a fine of not more than $50,000. Penalties for corporations 25(2) 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 $100,000.; and (b) for each subsequent offence, to a fine of not more than $200,000. Limitation period 26 A prosecution for an offence under this Act may not be commenced later than one year 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. PART 4.1 HERITAGE TREE PROGRAM Heritage tree program 26.1(1) The minister is to establish a program to recognize trees with exceptional significance to Manitobans in order to promote public awareness of the environmental, cultural, social and historic importance of trees and forests. Categories of heritage trees 26.1(2) A tree may be designated as a heritage tree if it falls within one of the following categories: 1. Historic or culturally significant tree — A tree that is associated with a historic event or that has significant cultural importance; 2. Record tree — A tree that is one of the largest, broadest or oldest of its species in Manitoba or that is a prime example of a species that is extremely rare in Manitoba; 3. Notable tree — A tree that is in a unique location, has unique characteristics or features or that has attracted widespread public recognition as a prime example of its species. S.M. 2013, c. 44, s. 2 . 26.2 [Repealed] S.M. 2013, c. 44, s. 2 ; S.M. 2018, c. 8, s. 24 . Nominations 26.3(1) Any person may nominate a tree for designation as a heritage tree. Nomination requirements 26.3(2) A nomination must (a) be made in writing to the director on a form approved by the minister; and (b) provide information to explain why the person believes that the nominated tree falls within one of the categories set out in subsection 26.1(2). 26.3(3) and (4) [Repealed] S.M. 2018, c. 8, s. 24 . Nomination process for trees on private land 26.3(5) If a nominated tree is located on private land (a) the owner of the land must be given a copy of the nomination; (b) the owner of the land must be given an opportunity to make a written submission to the director before a decision on the nomination is made; and (c) [repealed] S.M. 2018, c. 8, s. 24 ; (d) the director must have regard to the owner's submission when deciding whether to designate the tree as a heritage tree. 26.3(6) [Repealed] S.M. 2018, c. 8, s. 24 . Designation 26.3(7) After reviewing a nomination, the director may designate a tree as a heritage tree. S.M. 2013, c. 44, s. 2 ; S.M. 2018, c. 8, s. 24 . Public notice of heritage trees 26.4(1) The minister must provide public notice of the designation of heritage trees and promote public awareness of heritage trees (a) by publishing pictures and details of heritage trees on a government website or in other publications; (b) by posting signs or plaques near heritage trees; or (c) in any other manner that the minister considers appropriate. Partnerships re heritage trees 26.4(2) The minister may enter into arrangements with other organizations to promote public awareness of heritage trees and the importance of trees to Manitobans. S.M. 2013, c. 44, s. 2 . Heritage tree protection on Crown land 26.5(1) If a heritage tree is located on Crown land, the minister must ensure that no person is authorized or permitted to cut the tree down unless (a) an arborist recommends that the tree should be cut down because it is affected by a forest threat or poses a safety hazard; (b) the tree is required to be cut down under a forest health order or a regulation made under subsection 18(1); or (c) the removal of the tree is required to permit work on public infrastructure to occur and the cost of performing the work without removing the tree would be excessive. Municipal by-laws re heritage trees 26.5(2) A municipality may enact by-laws to protect heritage trees located on municipal land. S.M. 2013, c. 44, s. 2 . PART 5 MISCELLANEOUS PROVISIONS 27 [Repealed] S.M. 2017, c. 34, s. 7 . Arborist certification requirement 27.1(1) Except when permitted by regulation, a person must not act as an arborist unless he or she holds a valid and subsisting certification from a prescribed organization or body. Exception 27.1(2) Subsection (1) does not apply if the only services a person provides is the cutting down and removal of an entire tree. Transitional 27.1(3) A person may act as an arborist without holding a certification required under subsection (1) if (a) he or she held an arborist licence under the former Act immediately before the coming into force of this section; or (b) he or she successfully completed the Manitoba Arborist Training and Licensing Course conducted by the University of Manitoba School of Agriculture before July 1, 2019. Interpretation 27.1(4) In subsection (3), "former Act" means this Act as it read immediately before the coming into force of this section. S.M. 2017, c. 34, s. 7 . Municipal forest threat management program 28(1) The minister may require a municipality to establish a program to detect, contain, suppress and eradicate forest threats in the municipality. Financial assistance to municipality 28(2) The minister may enter into an agreement with a municipality to provide it with financial, technical or other support for its forest threat management program. Agreements 29 The minister may enter into agreements for the development, implementation or cost sharing of programs respecting the detection, containment, suppression and eradication of forest threats with (a) the Government of Canada; (b) the government of a province or territory of Canada; (c) the government of a state of the United States; or (d) an agency of a government referred to in clause (a), (b) or (c). Compensation 30 No right of compensation exists against the government or any person in respect of a tree that is cut down or a forest product that is seized, treated or destroyed under this Act, but the minister may provide such compensation to a person as the minister considers fair and reasonable in the circumstances. Protection from liability 31 No action or proceeding may be brought against the director or an inspector, officer or other person acting under authority of this Act for anything done, or not done, or for any neglect, (a) in the performance or intended performance of a duty under this Act; or (b) in the exercise or intended exercise of a power under this Act; unless the person was acting in bad faith. Crown bound 32 This Act binds the Crown. Regulations 33 The minister may make regulations (a) respecting measures to detect, contain, suppress and eradicate forest threats in Manitoba, or any part of Manitoba; (b) designating insects, diseases, organisms and other things as forest threats and invasive forest threats under section 3; (c) prescribing the circumstances and conditions under which an invasive forest threat or affected forest products may be brought into Manitoba; (d) prohibiting or regulating the entry of specific classes of forest products into Manitoba, including regulations imposing conditions or restrictions on the movement and transport of such forest products; (e) prohibiting or regulating the movement and transport of specific classes of forest products within Manitoba; (f) respecting appeals of preventive quarantine orders and forest health orders; (g) respecting the costs incurred to enforce a preventive quarantine order or a forest health order that a person may be required to pay under section 16, including the manner in which those costs are to be calculated; (h) respecting the manner in which affected trees or forest products are to be disposed of; (i) prescribing the manner in which orders under this Act are to be served; (j) respecting the detention, destruction, treatment and disposition of items seized under this Act; (k) respecting measures to improve the health of trees and forests in Manitoba, including prohibitions and restrictions on the use of particular types of tree seeds, vegetative material or seedlings in parts of Manitoba; (l) prohibiting or regulating the planting or cultivation of any plant that might serve as a host to forest threats or otherwise interfere with efforts to contain, suppress or eradicate forest threats; (l.1) respecting the process for designating heritage trees under Part 4.1; (m) respecting arborists, including (i) prescribing organizations or bodies that may certify arborists, (ii) specifying when a person may act as an arborist without holding the required certification, and (iii) specifying the amount and type of insurance to be held by an arborist; (n) respecting any other matter necessary or advisable to carry out the purposes of this Act. S.M. 2013, c. 44, s. 3 ; S.M. 2017, c. 34, s. 7 . PART 6 CONSEQUENTIAL AMENDMENTS, REPEAL, C.C.S.M. REFERENCE AND COMING INTO FORCE 34 NOTE: This section contained consequential amendments to The Plant Pests and Diseases Act that are now included in that Act. Repeal 35 The Dutch Elm Disease Act , S.M. 1998, c. 17, is repealed. C.C.S.M. reference 36 This Act may be referred to as chapter F151 of the Continuing Consolidation of the Statutes of Manitoba. Coming into force 37 This Act comes into force on a day to be fixed by proclamation. NOTE: S.M. 2007, c. 20 came into force by proclamation on May 15, 2009.