Alberta Court of Appeal grants appeal challenging registration of new land on lakeshore

The Alberta Court of Appeal has cancelled the registration of a survey plan and changed a title description to exclude accreted land because the circumstances did not meet a necessary condition for the registrar to exercise their authority.

The case of MacKenzie v. Alberta (Registrar, North Alberta Land Registration District), 2022 ABCA 277 involved the shoreline of Gull Lake in central Alberta, which receded over time and left an area of new land extending over two quarter sections: NE 25-40-1 W5M and SE 36-40-1 W5M.

In 2019, the respondents Christopher and Joann Griffin, who were registered owners of land located in SE 36-40-1 W5M, fenced off the new land.

In 2020, the appellants – who owned lots within NE 25-40-1 W5M, south and west of Gull Lake, and who used to access the lake through the accreted land – filed before the Alberta Court of Queen’s Bench an originating application under s. 184 of Alberta’s Land Titles Act seeking the following:

• a declaration that the registrar of the North Alberta Land Registration District lacked the authority to amend the legal description of the Griffins’ title and to register a plan of survey in 2018
• a declaration that the Crown owned the accreted land in SE 36-40-1 W5M
• an order directing the registrar to cancel the amendment and to exclude the accreted land in SE 36-40-1 W5M from the description of the Griffins’ title.

The Griffins and the Crown, representing the registrar and Alberta’s minister of environment and parks, opposed the application. The chambers judge dismissed the application, which prompted the appellants to appeal.

Alberta Court of Appeal grants appeal

The Court of Appeal ordered the registrar to cancel the registration of the survey plan and to change the description of Griffins’ title to exclude the accreted land in SE 36-40-1 W5M. The appellate court refused to declare that the Crown owned the accreted land in that quarter section.

First, the appellate court ruled that the registrar did not have the authority under s. 89(1) of the Land Titles Act to register the survey plan or to amend the title’s description to include the accreted land in SE 36-40-1 W5M.

Section 89(1) authorized the registrar to amend a title description to reflect accreted land only if the applicant owned land that had a natural boundary with a body of water before the accretion emerged and that continued to have a natural boundary with the water after the accretion’s emergence. In this case, the Griffins’ land failed to satisfy this condition, the appellate court said.

Second, the appellate court held that the chambers judge should not have dismissed the appellants’ application to the Court of Queen’s Bench to appeal the registrar’s decision for being filed out of time.

The appellants’ originating application was not a judicial review application and was therefore not time-barred by Rule 3.15(2) of the Alberta Rules of Court, Alta Reg 124/2010, which required the application to be filed within six months of the decision being challenged, the appellate court said.

Instead, the appellate court found that the originating application was an appeal, as supported by the text of s. 184, the legislative headings of the Land Titles Act, and the parties’ conduct in the lower court.