CANMORE – The Land and Property Rights Tribunal decisions have all but sealed the fate of Smith Creek and Three Sisters Village area structure plans to proceed.
While the Town of Canmore has potential appeal options, the choices are limited and costly.
The Town is legally restricted in seeking a leave to appeal, which if successful, would allow an appeal to be filed. However, one can only be done if it’s challenging the jurisdiction of the LPRT or it erred in rendering the decisions.
“If the tribunal misinterpreted its jurisdiction or if it made a legal error of sufficient importance then permission might be granted to appeal that question to the Court of Appeal,” said Eran Kaplinsky, a faculty of law professor with the University of Alberta teaching municipal and planning law.
“It doesn’t mean all hope is lost, but they have to raise a suitable question of law or jurisdiction that would give rise to an appeal. … It’s not enough that a court might disagree with a determination made by the tribunal. It would have to be completely unreasonable and it would have to relate to a question of law.”
In its decisions, the LPRT ruled it had jurisdiction to determine the consistency of the ASPs in relation to the 1992 Natural Resources Conservation Board (NRCB) decision, but that it was unable to revisit it since “the NRCB was the deciding body.”
“The only matter within the jurisdiction of the LPRT is a determination of whether the ASPs is consistent with the NRCB approval as issued,” the decisions stated.
In both the 1997 Municipal Government Board (MGB) and 2022 LPRT hearings, the Town was unsuccessful in arguing either provincial board didn’t have jurisdiction over the matter. Attempts to question how Section 619 came into effect after the 1992 NRCB approval, the approval no longer being relevant, and whether ASPs were consistent with the approval all ultimately failed.
The 1997 MGB decision highlighted it didn’t want to “see the interest of the local residents and stakeholders thwarted by sterilizing the effectiveness of the public process in local planning matters.”
But it also stressed the NRCB had given approval and “the Town was a full partner in the process when the NRCB held its hearing for Three Sisters” and that “the NRCB approval prevails”.
Kaplinsky said the decisions raise important questions on the autonomy of a municipality compared to that of provincial interest and how the powers are delegated.
With a number of government organizations involved such as the LPRT, the Town and the NRCB, which all have specific authority given to them, Kaplinsky said while any person or organization may dislike the decisions, the LPRT has the legal power to make the decisions.
He noted the tribunal cited the 2020 Court of Appeal case Borgel v Paintearth which aims to “prevent a municipality from blocking development that has been deemed in the public interest,” according to the appeal case.
“All of these are creatures of the province,” Kaplinsky said. “They have only the powers that are given to them by the legislature.”
The other issue, Kaplinsky said, is the continuation of a 30-year-old decision still being valid. As better technical and environmental information is developed, it can cause concerns.
“When the development is 20 to 30 years out, doing an environmental assessment right now maybe is not sufficient to ensure the development is retrospective in nature the next 30 years.”
The tribunal and NRCB were clear the 1992 decision holds weight and Town was legally incorrect by denying both ASPs, particularly after the 2018 terms of reference outlining the expectations.
“The NRCB approval was granted and has not been revoked; therefore, it continues to exist and prevails over municipal land use planning decisions and bylaws,” the decisions stated.
Under Section 688 of the MGA, the Town has 30 days from the time of the decisions to file the leave to appeal. The option to do so against an LPRT decision is allowed “under Section 619 respecting whether a proposed statutory plan or land use bylaw amendment is consistent with a licence, permit, approval or other authorization granted under that section,” according to the MGA.
It can be reviewed, but not for its merits, Kaplinsky said. A judicial review can be filed, but it would have to show there was improper procedure, interference of charter rights, and violation of natural rules of justice among other possibilities.
“The statutory framework for the tribunal to make those decisions of consistency and once the tribunal made a determination that this ASP is consistent with the terms of the original planning approval now has the Town in a bind.”
Harvey Locke, a lawyer at the 1992 NRCB hearing and founder of Yellowstone to Yukon (Y2Y) Conservation Initiative, said the Town could look at the possibility of a judicial review to the Court of Queen’s Bench. It would mean not everything is reheard, but a narrower focus of the tribunal decisions could be reexamined.
“The interesting thing to me is I didn’t see the fundamental question of whether this is the same project very thoroughly addressed when I read the decision. … I think that’s a really big question for this project,” he said. “The NRCB hearings were about the Three Sisters Golf Resort and there’s nothing in the area structure plans about a golf resort. It’s become a housing project.”
While the legal issues will be determined in the coming weeks and months, Locke raised the issue of the impact of development in the Bow Valley on wildlife.
He said with the region pushing the threshold of what can be handled by wildlife, future growth could bring additional harm to animals, which rely on the Bow Valley.
“If we get away from the legal issues, the question of how much more development this valley can stand is a very big public policy issue,” Locke said. “Nobody really knows if Canmore can get twice as big and how it’ll impact wildlife. … We’re pushing the system right to the limits. We’ve got something special we shouldn’t be pushing to the limits.”
On May 17, the tribunal ordered the Town to adopt both plans after it was found both ASPs were consistent with the NRCB decision.
The LPRT decision outlines how the previous Town council acted in error by rejecting the ASPs since both were consistent with the NRCB decision.
During the Smith Creek ASP hearing, Y2Y, the Stoney Nakoda Nation and the NRCB were all granted limited intervenor status. The Three Sisters Village ASP hearing only had the Town and TSMVPL give testimony.
There are still several legal challenges taking place regarding the TSMVPL-owned lands.
TSMVPL launched a $161 million lawsuit against the Town and the previous council in December.
Thunderstone Quarries has also filed a $63.5 million lawsuit against the Town since it owns lands that are part of the rejected Smith Creek area structure plan.
TSMVPL filed for judicial review for both the Smith Creek and Three Sisters Village ASPs, which have been granted by the Court of Queen’s Bench. Neither reviews have a timeline to be heard.
The Smith Creek ASP proposed an estimated population of 2,200 to 4,500 people and includes between 1,000 and 2,150 residential units.
The ASP had upwards of 75,000-square-feet of light industrial and business space and about 125,000-square-feet of retail and commercial space for local services.
Three Sisters Village ASP could lead to between 3,000-5,000 residential units – depending on the bonus density. There would be up to 602,000-square-feet of retail and business space and about 188,000-square-feet of indoor recreation and entertainment, with 75 hectares of open space and 10 per cent of the housing deemed affordable.
The ASP covers an area of about 169 hectares (417 acres).
TSMVPL launched the appeal last spring under Section 619 of the Municipal Government Act.
The clause directs a decision to be made 30 days after the close of the hearings, but both TSMVPL and the Town agreed to give the tribunal more time in rendering a decision.
The hearings were held in March and lasted 15 days, with more than 110 hours of testimony and thousands of pages of evidence presented to the tribunal.
It focused on affordable housing, the 1992 NRCB decision, the wildlife corridor, undermining and the future growth for Canmore.
While the NRCB decision gives the Town limited planning authority at a high level, it maintains the same rights at the land use bylaw, subdivision and development permit phases. The Town also had the power to work with TSMVPL in changing select details such as the inclusion of the Thunderstone Quarry lands in the Smith Creek ASP and work done between Town staff and the developer prior to the ASPs being submitted.
David Taylor, the president of TSMVPL, said in a media release after the decisions were released the company is looking forward to moving ahead with the projects following the tribunal’s ruling.
“Our team worked hard on applications that will create development that is good for Canmore, good for Three Sisters, and aligned with the NRCB decision that permits development of our property,” he said.
A spokesperson for the Town declined to comment, noting it was continuing to review the decisions. Town council and senior staff met Tuesday for a workshop on the LPRT’s decisions.
However, the LPRT was strict in stating the Town wasn’t in the position to deny either ASP due to their consistency with the NRCB approval.
Canmore was unable to “refuse the project altogether if it complies with the NRCB approval. Section 619 requires the Town to approve the application to the extent that it complies with the NRCB approval,” the Three Sisters Village ASP decision stated.
While there were numerous amendments made to the Village ASP at second reading, most notably prioritizing commercial development and mandating 20 per cent affordable housing, the tribunal disagreed with the process of coming to the amendments.
“The amendments to the ASP were not subject to rigorous study and should not be incorporated,” the decision stated.
“The LPRT agrees that the ASP was prepared after numerous reports, and the amendments were proposed without a similar level of study. In any event, the ASP as amended was not passed. Under those circumstances, the LPRT determined that the ASP as originally submitted should be ordered.”
It also added the attempts to shift commercial and residential development were “not feasible and is poor planning practice to require commercial space to be built before market demand exists to support it.”
The tribunal concluded its decision on Smith Creek by emphasizing it had heard no evidence that countered the work completed by TSMVPL in finishing the required work for the ASP.
“There was no evidence disputing the reports and witness testimony, and the reports were prepared by qualified professionals; therefore, the LPRT accepts the evidence of the appellant’s witnesses that the Smith Creek ASP is consistent with the NRCB approval,” the decision stated.
With the Town in an unenviable position of the tribunal showing the ASPs were consistent with the NRCB decision, the future of the Three Sisters lands is clear.
“The tribunal has made a determination the Town has no authority to deny them, so they’ll have to do it,” Kaplinsky said.
