Comfort letters for projects proposed on public lands
This policy describes how the ministry will consider a request for a comfort letter for proposed uses of, or dispositions of, an interest in lands administered under the Public Lands Act.
Subject: Comfort letters for projects proposed on public lands
Policy: PL 4.15.01
Compiled by – Branch: Crown Forests and Lands Policy Branch
Section: Crown Lands Policy Section
Date issued: July 14, 2021
1.0 Context
A comfort letter is a document that may be issued to an applicant or their lender if directed, regarding the Ministry’s considerations of the issuance of an approval (for example: lease, licence of occupation, permit or easement) and is typically used to assist in securing financing during the development stage of a project.
In certain situations where high value infrastructure or other significant projects have been proposed to occupy public land, the Ministry has in the past received requests to provide written assurances in the form of a comfort letter, to applicants or as directed to their lender that:
- an applicant has or will continue to have authority to occupy public land, and/or
- the lender will be able to register the loan on title, taking security over the applicant’s interest or other rights in respect of the public lands once a registerable form of authority has been issued
2.0 Scope of application
The policy applies to an applicant that has submitted an application to the Ministry to use or acquire an interest in public lands. A comfort letter may be issued by the Ministry to the applicant who requests same and is not transferable to another applicant.
The Ministry may issue a comfort letter through its authority to manage public lands under the Public Lands Act, but the Ministry cannot issue a letter that fetters the Minister’s (or delegate of the Minister) decision making authority regarding the management of public lands.
The Ministry is not obligated to issue a comfort letter. In rare instances, and after careful consideration, the Ministry may issue a comfort letter where the applicant can demonstrate to the Ministry’s satisfaction that the project meets at least one of the following eligibility criteria:
- the project would provide significant regional or provincial level economic, environmental or social benefits
- the province and/or other levels of governments have made a commitment of a significant investment in the project
- the project would provide a direct and significant economic, environmental or social benefit to one or more Indigenous community or municipality
When considering eligibility for a comfort letter, the Ministry will have regard for how the denial of a comfort letter may impact the applicant’s ability to secure financing.
3.0 Additional considerations
When considering the issuance of a comfort letter, the Ministry cannot pre-suppose the outcome of the application for the use or disposition of an interest in public land, by providing explicit assurances regarding the outcome of the application. Nor can the Ministry pre-suppose the outcome of other regulatory or legislative approvals (provincial and/or federal) that the applicant must obtain.
The Ministry will consider its obligations under Section 35 of the Constitution Act, 1982 for duty to consult with potentially affected Aboriginal communities, when considering the issuance of a comfort letter.