CALGARY – The long running legal battle between the Town of Canmore and Three Sisters Mountain Village Property Limited made its long-awaited appearance in Alberta's highest court.
The Court of Appeal hearing on Monday (April 3) had both sides, along with intervenors with Stoney Nakoda First Nation, the Land and Property Rights Tribunal (LPRT) and the Natural Resources Conservation Board (NRCB), present their cases to three justices reviewing the case.
While the Town is permitted to argue on nine grounds, the heart of its arguments include the LPRT failed to properly apply Section 619 of the Municipal Government Act (MGA) retrospectively, the Smith Creek and Three Sisters Village area structure plans (ASPs), the LPRT failed to give adequate reasons for the ASPs moving forward and the ASPs weren’t consistent with the 1992 NRCB decision.
From the 1992 NRCB decision not having an expiry date, the coordination of the NRCB and planning processes in Section 7 of the decision, the addition of Section 619 to the MGA, where municipal jurisdiction begins and ends, the level of consistency of planning needed to meet the NRCB decision and whether the LPRT had the jurisdiction to rule on such a matter, the prolonged and complex legal case has continued to gather layer upon layer.
“The Town and the owners have clearly disagreed on how the plan ought to be developed and the effect of the NRCB approval,” said Kelsey Becker Brookes, the Town’s legal representative.
“Council has the discretion to apply to hold back development up against its policies, which are to address its own issues from a planning perspective and determine if it’s appropriate for them.”
Becker Brookes said the Town hadn’t been blocking development, as put forward by TSMVPL, and the multiple developers have now had more than 30 years to develop and approved ASPs for the land, adding TSMVPL “simply don’t want to develop what’s passed.”
She argued the passage of time meant that the NRCB approval in 1992 was never considered in a 2022 lens.
“At a certain point, enough time passes and circumstances change. It can’t be said the NRCB actually considered the development as it sits right now," said Becker Brookes.
However, TSMVPL’s legal counsel Gwendolyn Stewart-Palmer highlighted the NRCB had the option of putting an expiry on its 1992 decision, but elected not to do so, since they anticipated a “long project.” She further noted development had taken place and further attempts to do so made an argument on the passage of time irrelevant.
She emphasized that with the decision coming from a provincial board, development would ultimately take place. Stewart-Palmer further argued the NRCB approval prevails over municipal authority as outlined in Section 619.
“The NRCB is a provincial approval. … There’s a recognition to the extent that the NRCB has approved it that the Town can’t countermand that. There are two approvals required, but one is subservient to the other,” she said.
“The purpose of Section 619 is to not thwart provincial approvals at the municipal level.”
Stewart-Palmer emphasized the in-depth work that went into the LPRT hearings, which spanned several weeks with 10 witnesses, more than 5,000 pages of records and 3,000 pages of transcripts that she called “extensive” work in the tribunal reaching its decision that the two ASPs were consistent with the NRCB decision.
She said the Town and TSMVPL agreed to terms of reference in 2018 that not only outlined the plan ahead for development of the lands, but also added the Thunderstone lands to the overall plan.
“It was a council approval, which as of the day we were at the LPRT, remained in existence,” Stewart-Palmer said.
At multiple times, the justices raised the terms of reference agreed upon by both sides and repeatedly asked Becker Brookes to justify specific arguments that questioned past decisions, municipal authority potentially outweighing provincial approvals, the two ASPs not being consistent with the NRCB decision and the retrospectivity of Section 619 coming after the NRCB decision.
Becker Brookes faced significant questioning throughout the hearing from Justices Frans Slatter, Anne Kirker and Beth Hughes, with the three panel judges raising issues of the argument on consistency of the ASPs and the NRCB decision, Section 619 of the MGA, whether the argument of the passage of time was a collateral attack on the NRCB and how the Thunderstone lands were part of the 2018 terms of reference approved by council.
The justices asked several dozen difficult and arduous questions during the Town’s initial hour-long argument and subsequent 20-minute reply to close out the hearing.
Towards the end of the Town’s argument, Becker Brookes noted she hadn’t convinced the panel of all the Town’s arguments, highlighting the uphill battle of needing to refute the LPRT decisions in relation to the NRCB decision and Section 619 of the MGA.
The Town and Stoney Nakoda First Nation filed their written arguments in late January, while the NRCB, LPRT and TSMVPL made their submissions in February.
The Town and TSMVPL agreed in January to pause the mandamus application, which had TSMVPL asking the Court of King’s Bench to direct the Town to implement the LPRT’s decisions on the ASPs.
As part of the pause, the Town agreed to abandon future appeals, with the Supreme Court of Canada as the only remaining option, as well as upholding the LPRT’s decisions.
TSMVPL has a $161 million lawsuit against the Town and the previous council. Thunderstone Quarries also has $63.5 million lawsuit against the Town since it owns lands in the Smith Creek ASP.
The LPRT ordered the Town to adopt both ASPs last May in decisions that were later appealed by Canmore. The Town first had to receive the right to appeal before having the matter heard by the Court of Appeal.
The LPRT decisions entirely went in favour of TSMVPL and the tribunal highlighted the 1992 NRCB decision has no expiration date for development to take place.
The lengthy LPRT hearings on the two ASPs lasted 15 days with more than 110 hours of testimony and thousands of pages of evidence being presented.
The Smith Creek ASP would see an estimated population of 2,200 to 4,500 people and includes about 1,000 and 2,150 residential units. The ASP includes upwards of 75,000-square-feet of light industrial and business space and roughly 125,000-square-feet of retail and commercial space for local services.
Three Sisters Village ASP could have between 3,000-5,000 residential units – which would depend on the bonus density element – and between 5,500-10,000 visitors and permanent population. It would include up to 602,000-square-feet of retail and business space and about 190,000-square-feet of indoor recreation and entertainment, with 75 hectares of open space and 10 per cent of affordable housing.
The ASP covers about 169 hectares.
If the Town wins the appeal, it would mean the case would likely head back to the LPRT for another hearing. However, if the appeal is dismissed, Town council would have to adopt the ASPs and development of the area could move ahead.
In reviewing the arguments, the court will have to see if the LPRT decision was either reasonable or unreasonable in coming to a decision. The Town’s legal representative had to show the LPRT’s decisions were ultimately unreasonable and acted outside its legislative powers.
The Court of Appeal will review the case and issue a decision in the coming months, with no specific timeline in place for a ruling.
