Alberta’s Surface Rights Board Subsumed Into the Land and Property Rights Tribunal

The Government of Alberta continues to move ahead with the red tape reduction initiatives introduced under Bill 48, the Red Tape Reduction Implementation Act, 2020 (No. 2), including the legislative amalgamation that will see a number of existing regulatory boards in Alberta replaced by a single entity, namely, the Land and Property Rights Tribunal (LPRT). The amalgamation will take effect on June 2, 2021 pursuant to the Land and Property Rights Tribunal Act (Act) and will impact the following boards:

• The Land Compensation Board (LCB)
• The Municipal Government Board (MGB)
• The New Home Buyer Protection Board (NHBPB)
• The Surface Rights Board (SRB)

The amalgamation will consolidate the jurisdiction and administration of these boards within the LPRT to streamline decision-making related to land use planning, property assessment and compensation disputes involving land expropriations and surface leases in Alberta. The amalgamation will not include the Public Lands Appeal Board or the Environmental Appeals Board, which together already share some staff and resources.

This bulletin focuses on the substantive and procedural changes flowing from the amalgamation to matters currently falling under the auspices of the SRB pursuant to the Surface Rights Act. For a discussion of other red tape reduction initiatives and how they might impact business done in Alberta, please see our Blakes Bulletin: Restoring the Alberta Advantage: Increased Simplicity for Businesses and our Blakes Bulletin: Amendments to the Builders' Lien (Prompt Payment) Amendment Act.

LAND AND PROPERTY RIGHTS TRIBUNAL ACT

1. Establishment of the Land and Property Rights Tribunal

The Act comes into force on June 2, 2021 and marks the next phase of the administrative amalgamation of the LCB, MGB, NHBPB and SRB which began in 2017 with the appointment of a common Chair overseeing a shared office location and a common administrative staff. In addition to these shared resources, the Act will consolidate the jurisdictions of the former boards and allow for the eventual creation of common rules of procedure with a view to simplifying and streamlining processes for parties.

The rules of procedure in place relative to each of the boards at the time of amalgamation will remain in effect until repealed, amended or replaced by the LPRT. Any proceeding commenced and not concluded before the coming into force of the new Act will continue to be heard under the current legislation in accordance with existing rules and regulations.

Until such time as the LPRT decides to issue its own rules, the transition will largely be in name only. Board members of the LCB, MGB, NHBPB and SRB will become members of the LPRT and existing contact information will be retained until further notice. In general terms, the legislative amendments introduced by the Act are mostly confined to striking out the names of the former boards and substituting “Tribunal” or the “Land and Property Rights Tribunal.” There are, however, a number of noteworthy changes and regulation-making powers introduced by the new Act that could have significant implications for the conduct of surface rights proceedings and appeals, including:

• The former power of the SRB to require the attendance of witnesses and production of evidence under the Surface Rights Board Rules is now enshrined under section 11 of the new Act, which also establishes a process for the LPRT to cause parties to be served with a notice to attend or produce documents. If a party fails to comply with such notice, the LPRT is empowered to apply to the Alberta Court of Queen’s Bench to issue a warrant or to commit the party for contempt
• Witnesses in LPRT proceedings can be compelled to answer questions under oath when examined on anything relevant to a matter and are not excused from providing self-incriminating testimony pursuant to section 12 of the Act. However, such testimony cannot be used against the witness to establish liability in other proceedings
• Section 16 of the Act introduces rules relating to appeals to the LPRT itself. It is unclear whether and how this appeal process will align with the processes for appeal to the Alberta Court of Queen’s Bench and for review and variance by the LPRT under sections 26 and 29, respectively, of the Surface Rights Act
• Section 19 of the Act clarifies that the standard of review to be applied on an application for judicial review or on appeal of a decision or order of the LPRT is reasonableness
• Section 20 of the Act empowers the Lieutenant Governor in Council to make regulations respecting, among other things, the disclosure of evidence in a hearing and the exclusion of documents from the public record. This should allow for the eventual codification of the process and criteria for requesting information that would otherwise be disclosed in LPRT proceedings and placed on the public record to be kept confidential.

These changes can be expected to take greater shape as new rules and regulations are released in the weeks and months ahead.

POTENTIAL IMPACTS AND BUSINESS CONSIDERATIONS

Although the amalgamation will not affect the rights of parties with existing applications or appeals, we anticipate that the creation of the LPRT could have practical impacts on businesses operating in Alberta in the short and long terms, including:

• Standard contracts, forms and lease agreements may require revisions to remove and replace references to former boards
• Documentation filed for ongoing applications or appeals may also require revisions to remove and replace references to former boards
• Parties aware of ongoing disputes or claims may wish to quickly file applications or appeals prior to June 2, 2021 to avoid falling under the new regime and the uncertainty of any future regulations or procedural rules
• Stakeholders may wish to stay alert to the anticipated release by the LPRT of draft rules of procedure and time-limited opportunities for feedback
• Stakeholders may wish to regularly visit the LPRT website once it is up and running for additional guidance on transitional matters
• The roster of LPRT members available to assist with Surface Rights Act matters is expected to increase significantly, potentially leading to improved timelines for the disposition of surface rights applications

For further information, please contact: