Bill 48: The Province’s New Land and Property Rights Tribunal & Other “Red Tape Reduction” Measures

 By Jessica Proudfoot and Kyle Trolley, Student-at-Law

As 2020 wound to a close, the Alberta Government passed Bill 48, the Red Tape Reduction Implementation Act, 2020 (No. 2). As the name suggests, this is an omnibus bill which represents the second major legislative step in this Government’s stated plan to reduce “red tape” by as much as one third. Most of the Bill’s provisions will take effect in early June of 2021.

Bill 48 updates or repeals 12 different pieces of legislation. Most of these changes simply eliminate provisions which were identified as redundant or outdated. However, there are some important changes which will be of particular interest to homebuilders and owners, and to developers and municipalities.

Introducing the Land and Property Rights Tribunal Act

Most significantly, Bill 48 will amalgamate the operation of four existing quasi-judicial boards into a single agency. Currently:

• the Municipal Government Board makes decisions about land planning and assessment matters, subdivision appeals, inter-municipal disputes and annexation recommendations;
• the New Home Buyer Protection Board hears appeals of the Registrar’s decision to refuse, suspend, or impose conditions on residential builders’ licenses, as well as appeals of compliance orders and administrative penalties issued under the New Home Buyer Protection Act;
• the Land Compensation Board conducts dispute resolution proceedings and hearings to determine compensation for landowners and tenants impacted by the expropriation of land; and
• the Surface Rights Board assists landowners, occupants and operators to resolve surface access and compensation disputes.

Through the enactment of the Land and Property Rights Tribunal Act, the mandates of each of these boards will be merged and heard by a single tribunal: the Land and Property Rights Tribunal. Notionally, this amalgamation will allow the boards (some of which already share office space and directors) to enjoy further cost-sharing benefits. 

The rules of procedure and practice of the former boards will continue until repealed, amended or replaced by the new Tribunal.[1] Any proceeding commenced and not concluded before the coming into force of the new Land and Property Rights Tribunal Act will continue to be heard under the current legislation.[2]

The amalgamation will not include the Public Lands Appeal Board or the Environmental Appeals Board, which together already share some staff and resources. 

For an overview of recent activities at the PLAB, consider registering for our upcoming webinar, “Public Lands Appeal Board: 2020 A Year in Review”.

Changes to the Municipal Government Act (“MGA”)

Bill 48 includes numerous revisions to the MGA. Of particular interest is the decision to eliminate larger municipalities’ discretion to set their own timelines for processing subdivision and development applications.[3] Municipalities larger than 15,000 citizens will now be required to process applications for subdivision and development permits within the timelines prescribed in the MGA, regardless of their bylaws. That is:

• 20 days to determine whether a development permit application is complete;
• 40 days to approve or deny it; and
• no more than 60 days (in total) to approve or deny an application from the time it was received.

Municipal discretion is further curtailed by the striking out of s. 668 of the MGA, in its entirety. Historically, s. 668 has offered municipalities the opportunity to take more than 10% reserve land for municipal and school purposes (for things like parks, playgrounds, fire halls, EMS stations, and schools) where the density of a subdivision is anticipated to exceed 30 dwelling units or more per hectare. Municipalities will no longer have this option.

The Government intends for these changes to give certainty to developers, which in turn, is supposed to be good for business. However, critics note that the changes do not eliminate all uncertainties. For example, developers must still be alert to the possibility that a municipality may require additional land to be set aside as an “environmental” or “conservation” reserve.[4]

In a recent statement, Rural Municipalities of Alberta, an association comprising Alberta’s 69 counties and municipal districts, expressed the following concerns about the upcoming revisions to the MGA:

Bill 48 proposes reductions in municipal autonomy based on limited evidence from the development industry that the changes will have a meaningful impact in reducing red tape or supporting economic growth and job creation. In general, RMA supports thoughtful and measured red tape reduction initiatives if they are based on evidence-supported concerns with current legislation and processes. However, the concept of “red tape reduction” cannot be used as a catch-all to justify reducing municipal authority over land use planning and other areas without understanding the potential benefits and consequences of such a reduction.

Further “red tape reduction” changes to the MGA include:

• administrative changes around the calculation and appeal of off-site levies; and
• changes in the way parties may appeal certain development decisions where the land is provincially regulated.

Changes to the Land Titles Act

Bill 48 also amends the Land Titles Act to create a “pending registration” queue.[5] Under the new process, a party will be able to address any deficiencies in their application without moving to the back of the queue. This, combined with the recent roll-out of Alberta Land Titles Online (“ALTO”) should decrease costs associated with reviewing, revising and resubmitting documents to Alberta’s Land Titles Registry.

For further information on how Bill 48 may impact your business or operation, please contact Jessica Proudfoot, or another member of our Energy, Environmental and Regulatory practice group. 

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[1] S. 21(b)

[2] S. 21(c)

[3] S. 640.1 of the MGA will be repealed.

[4] provided the requirements in ss. 664.1 or 664.2 of the MGA are met

[5] s. 14.1

Alberta Streamlines Regulatory Process for Wetland Replacement Works

By Sean Parker and Kyle Trolley, Student-at-Law

Effective as of December 23, 2020, the Water (Ministerial) Regulation, AR 205/98 (the “Regulation”) has been amended and now references a new Code of Practice for Wetland Replacement Works (the “COP”), developed by Alberta Environment and Parks (“AEP”). The COP is a red tape reduction measure implemented by AEP. It is intended to streamline the regulatory process for proponents seeking to restore or construct wetlands. The COP replaces requirements previously under the Water Act, RSA 2000, c W-3 (the “Water Act”) to obtain an “approval” with a less onerous notice process for activities that meet the requirements set out in the COP.[1]

The idea is to eliminate wait times for proponents seeking to restore or construct wetlands. Under the new scheme, 14 days’ notice must be given prior to commencing a wetland replacement activity; proponents will no longer have to wait for the regulator to issue an approval under the Water Act.

In 2019, AEP began the design and development of its Wetland Replacement Program (the “WRP”). The WRP aimed to “re-establish wetlands in partnership with Albertans by providing resources for collaborative replacement projects across the province.”[2] To date, the program has funded seven projects across the province equating to $3.7 million, and resulted in the restoration and or construction of 158.23 hectares of wetland.[3]

By implementing changes through the Regulation and the COP, AEP is intending to “increase participation in conservation offset programs, accelerate the addition of wetlands on the landscape, and to stimulate Alberta’s economy by creating the right regulatory and economic conditions for wetland replacement proponents.”[4]

The Regulation states that the placing, constructing, operating, installing, maintaining, removing or disturbing of wetland replacement works, as defined by the COP, are designated activities that do not require approval so long as they are commenced, continued, and carried out in accordance with the COP.[5]

The COP defines wetland replacement works as “any structure or technique used for wetland construction or wetland restoration.”[6] Wetland replacement works include a structure, contouring, erosion and sediment control, soil amendments, vegetation amendments, decommissioning of subsurface drainage works, or drilling and reclaiming a borehole in a wetland replacement area.[7]

“Wetland construction” is defined in the COP as “the manipulation of the physical, chemical, biological or hydrological characteristics of a site with the goal of creating a wetland replacement area at a location that was non-wetland.”[8] The wetland replacement area must also have:

                           i.          a storage capacity less than or equal to 6,250 cubic metres;

                         ii.          an average depth of water, being the ratio of the volume of a wetland to the surface area of the wetland at design full capacity, of at least 10 centimetres but no more than 60 centimetres under normal hydrologic conditions;

                       iii.          a maximum depth of water of 2 metres; and

                       iv.          a 1:100 year flood magnitude of less than or equal to 1.5 cubic metres per second at an outlet.[9]

“Wetland restoration” is defined in the COP as “any manipulation of the physical, chemical, biological or hydrological characteristics of a wetland, that has been partially or completely lost by drainage, infilling or other forms of degradation or impairment, with the goal of re-establishing the pre-disturbance area, natural drainage pattern, hydrology and natural processes.”[10] Wetland restoration only applies to wetlands which have

                           i.          a catchment area less than or equal to 300 hectares in size; and

                         ii.          a 1:100 year flood magnitude of less than or equal to 1.5 cubic metres per second at an outlet.[11]

With no requirement for a formal approval, once notice is given of a wetland construction or restoration project captured under the COP, work can begin. However, any activity related to wetland replacement works that is beyond the scope of the COP will still require approval pursuant to the Water Act.

The new COP for wetland replacement and construction adds to the roster of codes implemented by AEP. These codes streamline the regulatory process for activities considered to have a low potential for adversely affecting the environment. If successful, the new COP will speed up the process for proponents, and also allow AEP personnel to focus on other matters that have the potential for greater environmental impacts.

For information on how the new COP for wetland replacement and construction may impact your business or operation, please contact Sean Parker in Edmonton, Michael Barbero in Calgary or another member of our Energy, Environmental and Regulatory practice group.

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[1] Government of Alberta, “New Water Act Code of Practice for Wetland Replacement Works”, January 2021, https://aia.in1touch.org/document/5734/External_Notice_COP_Wetland_Replacement_Works.pdf, (”GOA Fact Sheet”).

[2] Alberta Environment and Parks, “AEP’s Wetlands Replacement Program restores nearly 160 hectare of wetland in Alberta”, January 23, 2021, https://albertaep.wordpress.com/, (“AEP Program”)

[3] AEP Program.

[4] GOA Fact Sheet.

[5] Section 3(9), Water (Ministerial) Regulation, AR 205/98, (the “Regulation”).

[6] Section 1(2)(nn), Code of Practice for Wetland Replacement Works, (“COP”).

[7] Section 1(2)(nn), COP.

[8] Section 1(2)(kk), COP

[9] Section 1(2)(kk), COP.

[10] Section 1(2)(oo), COP.

[11] Section 1(2)(oo), COP.

Smile, You’re on Camera: Alberta Environmental and Regulatory Hearings During COVID

 By Sean Parker, Cesar Agudelo and Marika Cherkawsky

Since the onset of the COVID pandemic and implementation of various workplace and other restrictions, we have learned to adapt as we serve our clients. While not without its challenges, our lawyers and staff have embraced the various procedural and other modifications initiated by the courts and regulatory tribunals in Alberta.

Our Energy, Environmental and Regulatory practice group has gained significant experience in navigating the modified processes for things such as filings, virtual hearings and online etiquette. As we enter a new year with continued modified processes, the discussion below outlines some noteworthy procedures applicable to regulatory matters.

Filing and Other Procedural Changes

Court of Queen’s Bench

Since March 30, 2020, the courthouse has restricted in-person access. As 2020 progressed and the Court moved to online filing and hearings, in-person access was further discouraged. Now parties, especially those represented by counsel, must file online unless it is necessary to file a hard copy, in which case parties must use the drop boxes provided by the Court. It appears that filing at the clerk’s desk is now limited to unrepresented litigants.

There are a number of specific requirements for online filing with the Court, but they can be grouped in two major categories:

1. Emails must follow naming conventions. These change depend on the type of filing and it is best to contact counsel or follow the instructions available at this link.
2. Documents must follow certain formats, including the requirement that each filed documents be sent as a separate, “bookmarked” PDF, rather than in one large scan.

Once a document is filed, the court clerks will return the filed copy with an electronic stamp. Processing times vary, but the date of filing should reflect the date in which the document was sent, unless it was submitted after 4 p.m., in which case it will have the next day’s date. Although this is the general process and the Court has made substantial efforts to adapt, the system is not perfect. In our experience, at times it has taken several weeks or even months to have filed documents returned. This can create issues, for example, when facing a limitation period and a filed copy of the document is needed in short order. Accordingly, we recommend submitting documents for electronic filing well in advance of any deadlines to avoid problems.

In addition, when making an application to be heard by a Master or a Justice in chambers, a draft order providing the relief sought must be submitted along with any documents that may be referenced or relied on during the application. This may include your pleadings, previous affidavits as well as the application and the affidavit in support. In essence, you must provide all documents relevant to the application at the same time so they can be uploaded for the hearing and the Master or a Justice has them at her fingertips. At in-person hearings, there was often an opportunity to pass documents up to the Master or a Justice. That is not possible at an online hearing and consideration should be given as to what documents and information may be required.

Additional information on filing and other requirements can be found on the Court of Queen’s Bench website by following this link.

Alberta Utilities Commission

Following the first lockdown, the Alberta Utilities Commission (“AUC”) closed its offices in Calgary and Edmonton and its employees began to work from home. Part of its response also involved deferring all public hearings until further notice. Since then, the AUC has exercised its discretion under Rule 001: Rules of Practice and the Alberta Utilities Commission Act, to hold its hearings orally or in writing and begun to schedule virtual oral hearings or hearings by written submission only. The written hearing process provides parties an opportunity to file written evidence and written argument.

Since March 2020, the AUC has issued notice of written hearings for twelve proceedings and notice of virtual oral hearings for three proceedings. Information on online hearings including scheduling and other matters can be found on the AUC website by following this link, under the “Impacted Proceeding Timetable” tab.

The COVID-19 response also involved interim changes to the AUC participation involvement program (“PIP”) and related information requirements. These changes include:

• The principles of effective PIP set out in appendixes A1 and A2 of Rule 007 and in Section 2 of Rule 020 continue to apply with two important adjustments:
• First, project proponents must give stakeholders a minimum of 30 days to receive, consider and respond to project notifications.
• Second, proponents are discouraged from implementing face-to-face consultations, and should not engage in public open houses or town hall meetings. Electronic means of communication for consultation purposes are recognized and encouraged.
• The Commission has indicated the project proponents should recognize the challenges Indigenous groups may have at this time and adapt practices and timing accordingly.
• Facility applications will not require applicants to provide mailing labels for stakeholders until further notice. Instead, proponents must file an Excel spreadsheet with their application that lists stakeholder contact information with columns for name, company name, address 1, address 2, province, postal code, and country.

Alberta Energy Regulator

The Alberta Energy Regulator (“AER”) announced moderate changes to its operations and continued to respond to energy related incidents 24 hours a day. A deferral of certain reporting and monitoring requirements was implemented in the spring of 2020, however those obligations resumed on July 15, 2020. Since March 17, 2020, meetings with stakeholders and oral portions of hearings have been held virtually.

Of note, the AER’s virtual hearings have been live-streamed on their YouTube channel. To see how this process works, the recent hearing on the Grassy Mountain Coal Mine Project can be viewed in the following link.

Canada Energy Regulator

The Canada Energy Regulator (“CER”) moved all oral portions of hearing to a virtual format, and meetings with CER staff are being held via videoconference or conference telephone. The CER continued to conduct verification activities, though modified to comply with social distancing requirements. In terms of filing, the CER encouraged e-filing and postponed the filing of hard copy documents until further notice. Additional information on the CER’s current procedures can be found at the following link.

Other Regulatory Tribunals

Some regulatory tribunals have not announced special COVID procedures of general application for their proceedings. For example, the Environmental Appeals Board and the Public Lands Appeal Board appear to be taking a case-by-case approach and have been holding hearings online or by written submissions only.

Courtroom and Hearing Etiquette

One of the most significant changes to environmental and regulatory proceedings spurred by the pandemic restriction is the move to virtual hearings. This new format presents some challenges, but it may have also ushered welcomed and long-awaited changes to the way courts and regulators conducted hearings.

As mentioned above, one notable change was the public streaming of the AER hearing for the Grassy Mountain Coal Project on YouTube. Public broadcast of hearings is not something new in Canada, for example Supreme Court hearings have been televised for several years. A significant difference, however, is that the recent online broadcast of hearings held on a video conference platform such as Zoom often gives the public access not just to what is being said, but also to the documents being presented.

Given that hearings such as the one for Grassy Mountain would have typically been held at a location near the project site, the new online format may have the effect of increasing accessibility, and likely reduced travel costs and other expenses. There is support to maintain changes such as this beyond the pandemic.

Along with advantages of reduced costs and increased accessibility, there are still challenges with conducting legal proceedings by videoconference.

First, a good internet connection is key. These hearings use a lot of bandwidth due to the number of participants and video streaming. It may not be uncommon for there to be 10 or 20 hearing participants all on the videoconference at the same time.

Second, it is important to invest in good audio-visual equipment. As some of our lawyers have experienced, headphones and computer cameras that we rarely used before the pandemic, have now become important tools of the trade. Some of us have gone through a number of headphones to find the right one and to ensure there is little feedback and the microphone neatly captures the speaker’s voice without background noise.

Third, and related to the second point above, where you decide to sit and what you wear for your virtual hearing can affect the effectiveness of your submissions. Sitting in a room with a loud HVAC or against bright lighting can negatively affect your appearance. Court reporters rely on a clear sound and visual cues to capture what is being said. Further, it is recommended to wear solid, understated coloured clothing to prevent odd appearances that may occur on the videoconference platform. Ensure that you are in a location where you will not be interrupted, there is little to no background noise, and you have good lighting that clearly shows your face. This will help the decision maker understand your submissions and keep the record clear.

Fourth, virtual hearings require that you prepare your documents ahead of time, and that you know exactly which page numbers you will reference. Depending on the type of hearing, the party presenting may be in control of the documents, or someone else may be. In Court, for example, the party making submissions may be able to share their screen with the Court.

In the recent Grassy Mountain hearing before the AER, however, the videoconference host had control of the documents. In these situations, it is advisable to discuss with the host ahead of time the documents that will be referenced so they can have them open and ready to share.

Furthermore, keep in mind that many of the documents that are shared in virtual hearings are in PDF format. Accordingly, it is important to be clear about which pages are being referenced as the page numbers on the document may not match the PDF number. Also, tabs for exhibits are not as easily followed unless “bookmarked” in the electronic document.

Finally, it is advisable to do a dry run before the hearing. Test your equipment and location, check that everyone has the same electronic documents and page numbers, and check and double check the specific procedures of the hearing.

For additional information on how to prepare for your virtual hearing, contact Sean Parker in Edmonton, Michael Barbero in Calgary or another member of our Energy., Environmental and Regulatory Practice Group.