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Appeal continues between Town of Canmore, TSMV

Potential intervenors were able to make their cases for speaking in the Land and Property Rights Tribunal hearing between Three Sisters Mountain Village Properties Limited and the Town of Canmore.
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New houses under construction in Stewart Creek at Three Sisters Mountain Village on Thursday (Aug. 5). EVAN BUHLER RMO PHOTO

A local Indigenous nation and an international environmental and wildlife organization made their bid to be part of the Land and Property Rights Tribunal hearing between Three Sisters Mountain Village Properties Limited and the Town of Canmore.

Legal representation from the Stoney Nakoda Nation and members of Yellowstone to Yukon (Y2Y) Conservation Initiative asked to be added as intervenors – to join as a third-party in the ongoing legal case – which will determine the fate of the defeated Smith Creek and Three Sisters Village area structure plans (ASPs).

The Stoney Nakoda Nation argued the nearly 30 years since the 1992 Natural Resources Conservation Board (NRCB) decision, the ASPs not meeting the decision guidelines and the wish to speak on aspects not considered by the NRCB such as Indigenous treaty rights, made it necessary for them to partake.

"We do not seek to argue any failure or error on the part of the NRCB,” said Brooke Barrett, a lawyer from Rae and Company representing the Stoney Nakoda Nation. “Correctly, the NRCB approval was final and any such appeal would’ve long since expired. Importantly, the tribunal in this appeal will assess what was part of NRCB approval before fully understanding whether or not the ASPs are consistent with that approval.”

Gwendolyn Stewart-Palmer, a lawyer with Shores Jardine and representing TSMVPL, told the tribunal board the legislation allows only the two statutory parties – TSMVPL and the Town of Canmore – to be part of the appeal.

She added there were concerns of the Stoney Nakoda claim potentially challenging constitutional law and past precedent in the 1997 Municipal Government Board hearing that resulted in the Town and past landowners settling in 1998. The case allowed only the Town and the landowner to participate.

Stewart-Palmer said it would be a “collateral attack” – when past legal precedence is challenged – on the NRCB decision.

Y2Y expressed its concerns on wildlife impacts, particularly with the provincially-approved wildlife corridor and its potential to impact the movement of animals in the Bow Valley, considered a pinch point in the Y2Y region.

Jodi Hilty, Y2Y president and chief scientist, and Hilary Young, the organization's senior Alberta program manager, highlighted the NRCB decision asked for a minimum width of 350 metres for a corridor and said the environmental impact study (EIS) on the ASPs lacked proper data and monitoring of wildlife patterns.

“The EIS produced by the applicant demonstrates a failure on their behalf to carefully monitor impacts that development has already been completed on Three Sisters lands outside the Wind Valley and within the Bow Valley corridor have had on wildlife resulting in a lack of confidence that impacts from Smith Creek and Three Sisters Village ASPs would or could be substantially mitigated,” Young said.

“This is evidence of their lack of monitoring and wildlife patterns and the use of outdated data and the lack of consideration on wildlife corridor science to inform their proposals.”

However, during cross-examination of Young and Hilty, Stewart-Palmer highlighted the wildlife corridor received provincial approval – the legislated requirement – and in further questioning, Young stated they disagreed with the province’s approval.

“Three Sisters has obtained a provincial approval required, but they just don’t agree with it,” said Stewart-Palmer to the tribunal board, who also noted Y2Y had not been part of the 1992 NRCB decision. “I don’t know how one else would explain that to collaterally attack it. Three Sisters has been obliged to get that approval, they have got that approval and they now seek to develop the area structure plans.”

The initial wildlife corridor application was denied in 2018 and the now approved corridor in Feb. 2020 the local environmental community by surprise, who given their concern with the wildlife movement data that was used.

Both the Town of Canmore and TSMVPL also made their verbal arguments for either having the two defeated ASPs heard separately or together.

TSMVPL argued the two ASPs should be heard separately due to their difference, but particularly since they were asked to be heard as separate plans by Canmore council. The Town of Canmore asked for the appeals to be heard together because of the similarities in the proposals and it would be more cost-effective.

The hearing peaked at a total of 27 participants, including representatives for both TSMVPL, the Town of Canmore, the province, delegates from each of the NRCB and Y2Y and lawyers representing the Stoney Nakoda Nation.

Canmore councillors Joanna McCallum and Rob Seeley and council candidate Tanya Foubert were also in attendance.

The tribunal is a quasi-judicial board and held the first hearing earlier in September to solely discuss the Smith Creek ASP.

The tribunal was chaired by Heesung Kim, with lawyers Debi Piecowye, David Thomas rounding out the panel.

The Town and TSMVPL requested a merit hearing of evidence be held in Edmonton, which is tentatively set for February 2022, but dates are still to be confirmed.

The appeal for Smith Creek was filed on July 9 and Aug. 9 for Three Sisters Village. TSMVPL did so under Section 619 of the Municipal Government Act, with the hearing legally having to begin within 60 days and once completed, a decision has to be made 30 days after the hearing is formally completed.

The appeal cited the 1992 NRCB decision for the project going forward, arguing the Town was required to approve the ASP if the “application complied with the approval or other authorization granted in the NRCB decision.”

A judicial review was granted by the Court of Queen’s Bench on June 14 for Smith Creek and June 25 for Three Sisters Village. It was adjourned sine die, which means there’s no timeline for its completion similar to an appeal.

The appeal by TSMVPL has claimed the company attempted multiple planning approvals and has had “long delays, unauthorized and unnecessary impediments and procedures that have frustrated the project.”

According to the appeal, TSMVPL has spent more than $11 million in working on the two ASPs between 2017-20.

The Town had attempted to have the appeal dismissed based on the 1992 NRCB decision predating Section 619, Smith Creek not being a statutory plan amendment in the 1992 NRCB decision and the Thunderstone Quarry lands not being consistent with the NRCB decision.

Under Section 619, the tribunal can only hear from the appellant and the municipality unless intervening status is permitted.

If LRPT were to reverse Canmore council’s decision, the amendments made by Canmore council in the spring would not be considered since the ASPs were voted down and the originally submitted ASPs are under consideration.

The Town and prior owners of the land – Three Sisters Golf Resorts – went through the appeal process in 1997. The Town lost, but filed an appeal and the two sides settled in 1998.