It’s been more than a week since the Land and Property Rights Tribunal hit the Town of Canmore like a runaway freight train.
The decisions have left in their wake almost 100 per cent certainty in the coming months the Smith Creek and Three Sisters Village area structure plans will be approved and the next stage of the projects will move forward.
The Town has little legal recourse but the option of filing a leave to appeal, which is asking the courts for permission to appeal. To do so, they would have to prove the LPRT erred in its jurisdiction – a matter the Town has already failed to prove at the hearings – or in its legal decision. The potential for a judicial review is also extremely limited unless the LPRT followed improper procedure.
The task of doing so is both daunting and costly.
The 1992 Natural Resources Conservation Board (NRCB) decisions ruled 30 years ago that land development would happen. The only question was when and how it would proceed.
The LPRT answered the how portion in its determination with every argument the Town made about the ASPs being inconsistent with the NRCB decision was wrong, while TSMVPL was deemed correct.
A greater question, however, is the role of a provincial body in deciding the fate of a municipal planning matter.
Under the Municipal Government Act, municipalities have specific powers granted to them by the province regarding planning.
In the case of the Three Sisters lands, the municipality was long ago relegated to the bench when the NRCB ruled development would occur since it was in the public interest of Alberta.
The Town still retains its ability at the land use bylaw, subdivision and development permit levels – meaning TSMVPL and the Town are linked for decades to come – but the province determined there would one day be housing, recreation and commercial properties on the lands.
But while there’s little the Town and residents can do now, it’s worth asking questions about potential policy changes for future decisions. The argument on the relevancy of a 30-year-old decision has often been discussed, leading to a possible need for deadlines for such determinations at the provincial level.
One such local project potentially seeking an NRCB approval in the next 12-24 months is the Silvertip gondola.
When the province yields the hammer – which is its right – it can weaken municipal powers. The Ontario Land Tribunal (OLT) is an example of one such body that hovers over a municipality’s planning decision like a cloud. It can impact the decision-making of local councils – which at times use the OLT like a crutch in getting unpopular projects passed over their heads – while also giving developers more leverage in projects moving through.
Much has changed since the 1992 NRCB decision and the LPRT was legally obligated to rule on the ASPs through that lens, despite environment and wildlife studies having improved in the last 30 years.
Though it’s clear most Canmore residents are unhappy with the decision, the LPRT outlined the ways TSMVPL was consistent in following the decision and shortcomings of the Town’s, Y2Y’s and Stoney Nakoda’s arguments.
The LPRT had the legal authority to do so and had the decision gone in the Town’s favour, there’d likely be petitions for streets to be renamed after them.
There were no appeals or lawsuits challenging the 1992 NRCB decision in the necessary timeframe. It wasn’t until subsequent development proposals came forward that the courts were involved.
The proper time to appeal was in the weeks following the NRCB’s decision. Failing that, anything since can be looked at as only delaying methods.
Municipalities are ultimately the playthings of the province and the Town of Canmore had its spot food chain re-emphasized in the LPRT decisions.
