Written by Daron Naffin, Tim Myers and Erin Anderson
Bill 206, Property Rights Statutes Amendments Act, 2020, 2nd Sess, 30th Leg, Alberta, 2020 (Bill 206) is a private member's bill currently at second reading in the Alberta Legislature. It includes amendments to Alberta's Responsible Energy Development Act (REDA) to require the Alberta Energy Regulator (AER) to provide notice and procedural rights to those who could be directly and adversely affected by its decision on an application.
The Bill would amend the Alberta Bill of Rights, RSA 2000, c A-14, to recognize an entitlement to compensation, and recourse to the courts to determine compensation payable, for the Crown's expropriation of property. It also amends the Alberta Land Stewardship Act, SA 2009, c A-26.8, including as it relates to rights to apply to the Crown for compensation when regional plans affect property rights. Moreover, it creates a new right to bring a claim against the Crown when regional plans affect statutory consents. It would end rights of adverse possession (squatter's rights) through amendments to the Land Titles Act, RSA 2000, c L-4, and the Limitations Act, RSA 2000, c L-12. It amends the REDA to require the AER to provide notice and procedural rights to those who could be directly and adversely affected by an application that the AER receives.
Proposed Amendments to the REDA
Section 5 of Bill 206 would amend the REDA to impose on the AER additional obligations from an application, such as an application under an energy resource enactment.
Currently, when the AER receives an application it must "ensure that public notice of the application is provided in accordance with the rules." The AER typically posts public notice of an application on its website. Any person who thinks they would be directly and adversely affected by the application can then file a statement of concern with the AER. The AER decides whether to conduct a hearing on the application and decides the application. If the AER conducts a hearing, then "a person who may be directly and adversely affected by the application is entitled to be heard at the hearing."
Bill 206 would replace the current notice provision in section 31 of the REDA and require the AER to take steps in addition to public notice. It would require the AER to "determine if the decision on the application could directly and adversely affect a person" and, if so, provide them with notice of the application and certain procedural rights. The proposed procedural rights include a reasonable opportunity for the person to learn about the application, to file a statement of concern, and to submit evidence that relates to the application or contradicts or explains material in the application. If the person would not have a fair opportunity to contradict or explain certain items without cross-examining the applicant, then they would be entitled to do so. The AER would also need to provide the person with an adequate opportunity to "make representations by way of argument to the AER or its hearing commissioners." As long as the person would have "an opportunity to make the representations adequately in writing," then the AER would not have to let them make oral representations, and also would not have to allow them legal representation except when a statutory provision requires a hearing.
Notably, these amendments would require the AER to determine whether its decision on an application could directly and adversely affect a person at first instance, as compared to the current process where it typically does not make that determination unless a person files a statement of concern or a request to participate in a hearing. This change may result in increased participation by property owners in application processes before the AER.
Coming into Force and Possible Changes
As currently drafted, the section of Bill 206 amending the REDA would come into force on January 1, 2021, along with the sections amending the Alberta Bill of Rights and Alberta Land Stewardship Act. The sections dealing with adverse possession would be considered to have come into force on the date of first reading (October 28, 2020). Bill 206 is still at second reading and is currently referred to a committee, so its contents and coming into force dates may change.
A member of the Bennett Jones Energy Regulatory group would be pleased to discuss Bill 206 and how the legislative amendments proposed may affect your business or energy resource project.