UNB Act

Overview

Work by [UNB Board of Governors’] Act revision committee commenced in early 2013 and the committee published a complete draft early in the autumn 2014 semester, without ever having consulted with organizations whose members’ rights might be adversely affected, such as the two senates or AUNBT, each of which existed and operated under legislative frameworks. Moreover, the UNB Act is and has always been a public act, and any change is subject to the legislative amending process for such acts (there is a different process for private acts). For changes to public acts, the government may require that public consultations be part of the process.

The radical character of the 2014 draft revision is clear from a provision that, if enacted, would have given the board unilateral power to discontinue either or both senates, or to establish a new senate or senates with jurisdiction(s) determined unilaterally by the board. Restructuring the senates by such a device potentially could also weaken certain articles in AUNBT collective agreements outside of the collective bargaining process. These and other provisions in the draft, such as elimination of the legislative oversight sections of the existing Act were the cause of widespread concern.

When the board committee’s draft was published, an accompanying announcement included a deadline of six weeks hence for responses. The senates and AUNBT objected that this was unreasonable for such complex changes and demanded a longer response period. The initially announced period was then extended to six months.

Because AUNBT was able promptly to assemble resources, it took the lead in analyzing the draft revision and developing an appropriate response. It appointed an 11-member bi-campus task force composed of active and retired academic staff from a wide range of disciplines, including several members of its executive committee some of whom also were members of one or the other senate. Unlike the senates, the faculty union had a budget and ability to retain independent legal counsel to assist its task force. The task force met many times over a two-month period, analyzing the proposed revisions and studying university acts in other provinces. Ultimately, the task force concluded that the draft revision proposed by the Board was so radical it was not an appropriate basis for revision of the Act. The AUNBT task force then decided to develop an alternative draft Act revision that would not alter the powers of the board or senates, but would update the existing version to reflect current terminology and practice, to promote certain positive and seemingly uncontroversial changes, and to simplify several sections. This draft revision was publicly posted on the AUNBT website.

UNB is the Province’s largest university and its proper functioning is of public interest. In addition to the AUNBT task force, the AUNBT executive committee, members of the senates, many other members of the academic staff and a few board members, along with several retired faculty members, several retired senior administrators, several former board members, and several prominent alumni took an active interest both in the board committee’s draft and the AUNBT task force’s draft. Both drafts were discussed in separate series of well-attended information meetings. The AUNBT draft was well received, while in contrast the board committee’s draft was poorly received. Several faculty members and several AUNBT representatives had meetings with the deputy minister in the Department of Postsecondary Education, Training and Labour who confirmed that the UNB Act is a public act. The deputy minister also confirmed that Department officials had advised representatives of the UNB board that the UNB Act is a public act.

Following the two sets of information meetings, the board committee responded by publishing a new, much more circumscribed draft revision.

AUNBT publicly announced it would support this new set of proposed changes, except one item pertaining to property transactions. In this announcement AUNBT declared its willingness to work with the board and the senates in a transparent process to further develop appropriate amendments to the Act. AUNBT also sent a publicly posted letter to the relevant ministers and opposition leaders confirming this position. The same letter requested an opportunity for AUNBT and the public to make representations to the Legislative Assembly in connection with any proposed amendments to the Act. [For full documentation, including the AUNBT letter to Ministers Horsman and Landry, and the response from Minister Landry, see below: “AUNBT Response and Related Documents”]

Adopted from “Turning the Clock Back”, Jon Thompson
(Centre For Free Expression, Sept 30, 2016)

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Board of Governors’ Proposed Revisions (2013-14)

AUNBT Response and Related Documents (2014-15)

Additional documents

Media coverage (2014-15)

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Update (August 2017)

To date the UNB Board has not submitted any Act amendments to the government. However, it has approached AUNBT on a possible amendment pertaining to property transactions, and discussions are now ongoing that potentially could lead to an agreed draft amendment on this topic.

Soon after the decision of the Board of Governors to shelve the radical revision of the UNB Act in May of 2015, UNB approached AUNBT to enter into discussions about a proposal to make more limited changes to articles 13 and 14 of the Act, in particular, to increase the period for which Cabinet approval of the leasing of land is not required from 21 to 61 years. Since then, three representatives of the AUNBT UNB Act Task Force have been meeting with three representatives of UNB. AUNBT has responded to UNB’s concern about not having sufficient flexibility in developing and leasing its non-core lands. However, we have maintained that, in the public interest, some degree of government oversight should be retained with respect to these matters similar to the framework for universities in Alberta. Current discussions center on a proposed framework which would move oversight from the Lieutenant-Governor in Council (Cabinet) to the Minister, and from approval of individual leases to confirmation of a long-term land use and development plan. This would provide UNB with flexibility so long as they follow a well-articulated process of broad consultation and feedback with institutional and community stakeholders while setting out the composition of this plan. In August 2017, UNB and AUNBT representatives agreed that this process would be converted from its current diagrammatic form to a written form for detailed review and discussion. The process and overall proposal will be discussed with the AUNBT UNB Act Task Force and AUNBT Executive and we expect UNB will bring it before the Senates for discussion.

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Update and Summary (2 April 2018)

Summary of Positions and Discussions of UNB, AUNBT and UNBF Senate on Amendments to UNB Act s. 13 and s.14
April 2015 – April 2018

April 27, 2015, part A of the UNB Board of Governors Act Review Steering Committee (revised) draft report proposed deletions from s.13 and s. 14 of the Act:

deletion of subsection c) of s. 13 pertaining to leasing of real property; and

in s. 14 on real property transactions, deletion of the phrase “to the approval of the Lieutenant Governor in Council and” from the s. 14(a) opening lines, which at present read “The University may, subject to the approval of the Lieutenant Governor in Council and to the terms of any trust upon which it may be held,”: and in subsection (c), deletion of the phrase “exceeding twenty-one years and”.

May 8, 2015, AUNBT publicly stated its opposition to the amendments in Part A of the April 27 report:

“AUNBT opposes the amendments proposed in Part A and submits that the entire wording of Sections 13 and 14 of the current Act should remain unchanged” and gave its reasons. In the same document AUNBT also “express[ed] our willingness to work with the Board of Governors and the Senates in a collaborative and open process to consider a range of revisions to the UNB Act that would be beneficial and acceptable to the entire UNB community and the Province.”

May 25, 2015, the UNBF Senate met and discussed the April 27 report, under item 7 on its agenda. Four motions were put forward and discussed:

MOTION 7, 1 MaGee/Cunjak “That Senate recommend to the Board the proposed revisions to the University of New Brunswick Act, as presented.”

MOTION 7, 2 Reid/Shaw “That Senate amend MOTION 7, 1 to exclude consideration of Amendments Removing Cabinet Approval with respect to Property Matters.”

MOTION 7, 3 DuPlessis/Burns “That Senate recommend to the Board approval of Section A of the proposed revisions to the University of New Brunswick Act.”

MOTION 7, 4 Reid/Lentz “That Senate table MOTION 7, 3 until the Board Properties Committee considers the addition of a ten-year plan as part of the changes to the Property Matters section of the draft Act.”

Motions 7, 2 and 7, 1 were voted on and Carried, with Motion 7, 1 as amended by 7, 2. Motion 7, 4 was carried and as a result Motion 7, 3 was tabled.

May 25, 2015, the UNB Board discussed the April 27 report in its meeting but in closed session and so the minutes of its May 25 discussion on this topic have not been posted publicly.

Subsequently, UNB approached AUNBT with an invitation to discuss possibilities of reaching an understanding on the narrower issue of leasingof real property, so that in the event an understanding was reached, AUNBT would publicly support it. AUNBT agreed to engage in such discussions.

July 13, 2015, the first meeting was held of a group consisting of three representatives for each of UNB (K. Cunningham, B. Nicholson, J. Bigger) and AUNBT (A. Reid, L. Waugh, J. Thompson) on this topic.

The 3+3 group met at various times during 2015, 2016 and 2017. The UNB representatives clarified that its objective was to have s. 13 and s. 14 the Act amended so that leasing agreements for ≤ 61 years would be permitted without requiring approval by the Lieutenant Governor in Council. (At present the Act permits this for leases of ≤ 21 years.)

The AUNBT representatives responded that they were prepared to consider the change to ≤ 61 years but would not agree to recommend to their principals the complete elimination of government oversight for such leases. They proposed that government oversight for such leases remain but be more limited, with approval by the Lieutenant Governor in Council replaced with a requirement that UNB prepare a long-range land use and development plan for review and confirmation by the Minister.

Prominent in the discussions were the Alberta Post-secondary Learning Act (PLA) and the Regulation under that Act, which the AUNBT representatives suggested would provide the basis for a suitable UNB model. The PLA, at s. 121(2) reads: “The board of a university must, in accordance with the regulations, provide to the Minister a long-range land use and development plan relating to land owned by or leased to that board.”

The Regulation under the PLA sets out requirements for preparation of long-range land use and development plans. It also sets out and the role of the Minister in review and confirmation as to whether a submitted plan is in compliance with the regulations, with the option of the Minister returning a proposed plan to the university with recommendations.

At various times after July 2015, the UNB representatives made arrangements for their consultant (M. Murdoch) to assist the 3+3 group in obtaining information about the operation of the Alberta framework at both the University of Alberta and the University of Calgary, including discussions with consultants retained by those universities.

Subsequently, M. Murdoch drafted a slide deck setting out a draft text and consultation flow charts in a process for preparation of a long-range land use and development plan for the UNB context, adapted from the Alberta context. Her draft was discussed in several 3+3 meetings and modifications were made.

April 5, 2017, the 3+3 group and M. Murdoch met to discuss the latest version of her slide deck. She made a few additional modifications in response to comments. In this meeting a consensus appeared to have developed and, as the meeting was concluding, J. Bigger informally canvassed the 3+3 group as to whether anyone disagreed. No one expressed disagreement and it was further agreed that the UNB and AUNBT representatives would consult with their respective principals and legal counsel. It was agreed also that M. Murdoch would be available to present her slide deck to the AUNBT Act Task Force on April 13 and to the AUNBT Executive Committee later in April.

M. Murdoch provided a copy of her slide deck (dated April 14) to the AUNBT representatives shortly after her April 13 presentation to the AUNBT Task Force. (A copy is attached with this summary of positions and discussions.) Page 20 (slide numbered 20) of the slide deck states that the requirements for preparation of a long-range land use and development plans would be set either through “new regulations” under the UNB Act or, alternatively, through “another binding mechanism for the University and the Minister.”

April 10, 2017, J. Bigger informed the 3+3 group and M. Murdoch by email that counsel for UNB advised him that the requirements in slide 20 (cited above) were unnecessary because under s. 36(w) of the Act, the Board could, in effect, bind itself in these matters. In email exchanges during April 10 and April 18, AUNBT representatives noted that the Board could later unbind itself and, therefore, one or other of the alternatives stated on slide 20 would be required.

August 16, 2017, the 3+3 group, their respective legal counsel, M. Murdoch and S. Blair met to discuss outstanding matters. The UNB representatives and counsel expressed the concern that either alternative set out in slide 20 would amount to UNB giving up control over its real property. The AUNBT representatives and counsel replied that, in fact at present under the Act the government has all of the control (except for leases of ≤ 21 years). After further discussion, AUNBT representatives suggested it would be helpful in clarifying positions if M. Murdoch were asked to prepare a written version of her slides, so that the precise content of the schematic diagrams in the flow charts could be identified and discussed with a view to narrowing differences. K. Cunningham agreed and M. Murdoch confirmed she could prepare the requested document and make it available by early October, at the latest.

In response to a written question from Senator Brigitte Leblon:

Would it be possible to have a report from the joint BoG/AUNBT committee about the UNB Act renewal? When will a proposal be submitted to the Government?

K. Cunningham provided the following statement (following consultation with AUNBT) at the September meeting of the Fredericton Senate:

Response: Karen Cunningham, Vice-President (Administration and Finance)

Representatives from the AUNBT and UNB management have been meeting over the last two years in an attempt to agree on a process and potential changes to the UNB Act with respect to long term leasing of development lands. At this time there is agreement on some general principles but no final agreement on either process or wording to the Act. Discussions continue. We do not plan to submit any Act change re long term leasing to the government until we have agreement from the AUNBT and from UNB management and have fully consulted the Senates.

In late October and again in late November A. Reid reminded K. Cunningham that AUNBT had not yet received the requested document M. Murdoch had undertaken to prepare at the request of her client UNB made in response to AUNBT’s request in the August meeting. On December 6, at the AUNBT Fall General Meeting (FGM), a report was presented on the discussions between AUNBT and UNB regarding possible Act revisions. The FGM report repeated the statement to the September Fredericton Senate meeting drafted by K. Cunningham in consultation with AUNBT, and said that future meetings between AUNBT and UNB were anticipated but not yet scheduled.

April 4, 2018, representatives of AUNBT and UNB will meet to discuss these matters.