I am writing in response to the Land and Property Rights Tribunal (LPRT) decisions regarding the Three Sisters Village and Smith Creek area structure plans (ASP). The LPRT decided the ASPs – which were the subject of several days of public hearings in March 2021 – should be approved despite overwhelming public opposition because Section 619 of the Municipal Government Act requires a Natural Resources Conservation Board (NRCB) decision made 30 years ago regarding a recreational and tourism development to take precedence over the outcome of a properly constituted public hearing process.
The Bow Valley is a very different place than it was in 1992. To provide context about the thinking that took place when the NRCB Act was debated in the legislature, I’ve excerpted one paragraph from the June 14, 1990 edition of Hansard – the official legislature debate record, which was quoted several times in the LPRT decisions – that epitomizes how far science and thinking on climate change has evolved since the 1992 NRCB decision:
“Many scientists are concerned that when we consume fossil fuels, we produce carbon dioxide, which adds to the greenhouse effect. ... There is still a lot of uncertainty as to what the true nature of the production of CO2 into the atmosphere is, but there seems to be a fairly significant body of scientific opinion that says that it is a serious problem, that there are global warming trends.”
A quick search of Scientific American publications by title and date in May 2022 using the climate change search parameter, produced such results as: “Climate Change Caused $4 Billion of Typhoon’s Damage”; “Climate Change Doubled the Likelihood of Devastating South African Floods”; “Why the 2022 Southwest Fire Season Is So Early and Intense” and “Scientists Warn of Looming Mass Ocean Extinction”.
My point is there is better quality scientific and social information available about wildlife habitat connectivity requirements, the costs and realities of dealing with undermined areas, and the impacts of urbanization in an ecologically critical area than there was in 1992. If the ASPs at the heart of this debate were the subject of a new NRCB hearing today, the conversation about the public interest would have different parameters than the conversation about the public interest as it related to the recreational and tourism development proposed in 1992.
We have seen how laws and policies need to evolve and/or be interpreted to reflect current political, social, economic, and environmental realities. More than 100 years ago, our governments enacted laws and policies that led to the devastating consequences of residential schools. Thirty years ago, there were no laws requiring companies to implement a right to disconnect policy, yet across Canada, this is now becoming prevalent. Two years ago, mask mandates were implemented to control the spread of COVID-19 and were recently repealed.
The foregoing are a few examples of how the law evolves in response to the values and issues of the day. The interpretation of Section 619 needs to be judicially reviewed in the context of today’s realities. Surely the drafters of this legislation did not intend for a community to be handcuffed to values and knowledge of a previous generation and to deny the community a voice in relation to a project that is far more than just recreation and tourism.