Editor:
Last week, council approved the zoning of Stewart Creek Site 2b adjacent to the Stewart Creek Across Valley Wildlife Corridor under Bylaw 2014-014.
I was glad to see both the Province’s re-alignment of this corridor to the east to improve wildlife movement along the corridor to access the wildlife crossing under the Trans-Canada Highway, and the increase of the corridor buffer width from 35 to 70 metres.
I was also grateful to Councillor Krausert for his motion, and to council for their unanimous approval, to direct administration to work with Three Sisters Mountain Village (TSMV) and the Province to find a mutually agreeable conservation arrangement to provide a level of protection for the 70-metre wildlife corridor buffer beyond its current Wildlands Conservation zoning – where zoning can always be amended at a future date.
It was encouraging to read in the Sept. 29 staff report that one option for permanent protection “could include transfer of ownership of the land to the Town or the Province.”
Also heartening was the statement made by QuantumPlace planner Jessica Karpat in the Outlook that if TSMV is “going to hand over land, it should be for conservation and we think it should be that way in perpetuity.” This is a sentiment that any conservationist can endorse.
So what is the level of risk for the developer in signing a conservation easement agreement now?
In the 2004 Area Structure Plan, Policy 5.4.2 k states this corridor buffer “should” be protected under a conservation easement (CE). What is the concern now with signing such an agreement with the Town under the 2009 Alberta Land Stewardship Act?
My first comment is that provision of wildlife corridors by the any owner of the Three Sisters land is a condition of the 1992 Natural Resources Conservation Board (NRCB) Decision, and the corridors, if they are to be meaningful, must be scientifically functional and protected in perpetuity. The Golder process in the TSMV Resort Area, agreed to by the developer, the Town and the Province, recognized that providing scientifically functional corridors involves both provincially-defined corridors and appropriate land use zoning by the Town.
Permanent protection was attained through CE easement agreements signed by the developer and the Province on the Along Valley Corridor and with the Town on the 35-metre corridor buffer which was “primarily to widen the effective width of the wildlife corridors and to provide transition lands between development and the wildlife corridor, while allowing for vegetative removal and thinning for wildfire protection.”
My second comment relates to the developer’s stated reluctance at the Sept. 4 hearing to enter into CE agreements because of new provisions in the 2009 Land Stewardship Act.
I believe it is Section 31 which raises concern and reads:
31 A conservation easement may be modified or terminated
(a) by agreement between the grantor and the grantee, or
(b) by order of a designated minister, whether or not the designated minister is a grantor or grantee, if the designated minister considers that it is in the public interest to modify or terminate the conservation easement.
One can appreciate that any developer would like to reduce or eliminate risks if possible, while remembering that what developers do is take on risks in the hopes of earning profits.
However, it is my opinion that the risk of Section 31 (b) being resorted to by the Province is minimal. To better understand any risks entailed under Section 31 (b) it may be helpful to ask both a generic and specific question.
The generic question is: How often has the Province exercised its power under Section 31 (b) to terminate or unilaterally transfer a CE to another party?
The answer is never, according to the Miistakis Institute of the Rockies at the University of Calgary and the Environmental Law Centre at the University of Alberta, who are working in conjunction on CE issues.
The specific question is: How likely is it that rather than amicably choosing to transfer a CE under Section 31 (a) “by agreement between the grantor and the grantee”, the Province would choose Section 31 (b) to unilaterally transfer a CE on the corridor or corridor buffer on TSMV lands here in Canmore?
The answer is “very unlikely” since Alberta Environment and Sustainable Resource Development (AESRD) not only manages the Land Stewardship Act, but is legally responsible for designating and protecting these corridors under the 1992 decision of the NRCB.
Further, any CEs signed between TSMV and the Province on the Along Valley corridor would be on lands contiguous with lands the Province is already administering in the Bow Valley Wildlands Park. Given its land management role on adjacent land, I find it pretty well inconceivable that the Province would unilaterally transfer its role in the CE to some other party.
Similarly, is it at all likely that the Province would, under objections from TSMV and the Town, transfer control to another party of the CE between TSMV and the Town on a corridor buffer when ESA’s are a recognized priority for Council and the community under the 1998 MDP?
In conclusion, in theory Section 31 (b) of the Land Stewardship Act opens up an additional risk to both the developer and protection of corridors and corridor buffers “in perpetuity” under a Provincial CE.
However, the risk is small and the desirability of CEs on the corridor and buffers great. Hence, I would argue that Policy 5.4.2.k from the 2004 ASP, stating the there “should” be a CE on the buffer “should” not be excluded as a viable mechanism of protection if an equivalent cannot be found.
Alan MacFadyen,
Canmore
