LAND AND PROPERTY RIGHTS TRIBUNAL  
Citation:  
Three Sisters Mountain Village Properties Ltd. v Town of Canmore, 2022 ABLPRT  
673  
Date:  
File No.  
2022-05-16  
P21/CANM/T-003  
Decision No. LPRT2022/MG0673  
Municipality: Town of Canmore  
In the matter of an appeal under section 619 of the Municipal Government Act, RSA 2000, c M-26  
(Act) from a decision of the Town of Canmore with respect to the Three Sisters Village Area Structure  
Plan (Three Sisters ASP).  
BETWEEN:  
Three Sisters Mountain Village Properties Ltd. (TSMVPL)  
Appellant  
- and -  
Town of Canmore (Town)  
Respondent Authority  
BEFORE:  
H. Kim, Presiding Officer  
B. Horrocks, Member  
W. Jackson, Member  
D. Piecowye, Member  
D. Thomas, Member  
(Panel)  
K. Lau, Case Manager  
DECISION  
APPEARANCES  
See Appendix A  
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Decision No. LPRT2022/MG0673  
This is an appeal to the Land and Property Rights Tribunal (LPRT or Tribunal). The hearing was held via  
videoconference, after notifying interested parties, starting on Feb 22 with preliminary jurisdictional  
matters and continuing with merits on March 21, 2022 until March 28, 2022.  
TABLE OF CONTENTS  
OVERVIEW ................................................................................................................................... 2  
BACKGROUND ............................................................................................................................ 3  
PRELIMINARY MATTER JURISDICTION............................................................................. 9  
PRELIMINARY MATTER 2 DISPUTED EVIDENCE TRANSCRIPT EXCERPTS......... 22  
PRELIMINARY MATTER 3 DISPUTED EVIDENCE MAPS ........................................... 24  
ISSUES ......................................................................................................................................... 25  
Issue 1 Authority of Town to Deny the ASP......................................................................... 26  
Issue 2 Fiscal Impact on the Town ........................................................................................ 28  
Issue 3 Phasing....................................................................................................................... 30  
Issue 4 Housing...................................................................................................................... 31  
Issue 5 Wildlife Corridor ....................................................................................................... 35  
Issue 6 Public Interest ............................................................................................................ 42  
Issue 7 Areas of consistency not disputed by other parties ................................................... 46  
Issue 8 ASP as amended or as submitted............................................................................... 49  
CONCLUSION............................................................................................................................. 50  
OVERVIEW  
[1]  
There are two appeals before the LPRT which are the subject of two decisions; however, there is  
substantial common evidence and the jurisdictional matter was argued for both appeals at the same time.  
Accordingly, the background and some of the preliminary matters are common to both appeals, and the  
first hearing, the appeal of the Smith Creek Area Structure Plan (Smith Creek ASP), was not closed and  
some evidence relating to the Smith Creek ASP appeal was considered during the hearing for the subject  
appeal of the Three Sisters ASP.  
[2]  
The subject of this decision is the Three Sisters ASP which was defeated at third reading by  
Town Council on May 25, 2021 after several amendments had been proposed and passed. The Appellant  
submitted that pursuant to section 619 of the Act, the Town was required to approve the Three Sisters  
ASP, because it is consistent with the Natural Resources Conservation Board (NRCB) approval for  
Application #9103 Three Sisters Golf Resorts Inc. (NRCB Approval). The Town disagreed, arguing the  
Three Sisters ASP is not consistent with the NRCB Approval in several respects and the Town was not  
required to adopt it.  
[3]  
The Yellowstone to Yukon Conservation Society (Y2Y), the Stoney Nakoda Nations (Stoney  
Nations), and the NRCB participated as intervenors under the LPRT Procedure Rules. Y2Y argued the  
wildlife corridors in the Three Sisters ASP are inconsistent with the NRCB Approval. The Stoney Nations  
submitted that the passage of time since the NRCB Approval has potentially rendered the NRCB’s  
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finding that the project is in the public interest inapplicable. The NRCB responded to the Stoney Nations  
submissions and made further submissions with respect to NRCB jurisdiction.  
[4]  
The LPRT determined that the Three Sisters ASP is broadly consistent with the NRCB Approval,  
and that the amendments passed at second reading had not been supported by analysis and reports. The  
LRPT ordered the Town to adopt the Three Sisters ASP as submitted.  
BACKGROUND  
[5]  
The appeal was filed by TSMVPL to the LPRT on August 6, 2021 pursuant to section 619 of the  
Act after the Town refused to approve the Three Sisters ASP. The reasons accompanying the Appeal were  
as follows:  
1. In 1992, the NRCB approved the development of a large scale recreational and tourism  
project subject to conditions (the “Project”) as reflected in the NRCB Approval.  
2. TSMVPL, and the predecessor owners of the Project, have endeavoured to obtain planning  
approvals for the Project from the Town, which process has been characterized by long  
delays, unauthorized and unnecessary impediments and procedures that have frustrated the  
Project.  
3. In 2004, the Town approved the Resort Centre ASP which governed the lands.  
4. On May 2, 2017, Council defeated first reading of Bylaws 2017-01 and 2017-02 (2017-01  
was to amend MDP maps as needed, and 2017-02 was the ASP amendment application) and  
told TSMVPL to undertake a more wholistic process to provide the direction for all of the  
TSMVPL lands.  
5. Between 2017 and 2020, TSMVPL worked with the Town to develop a new area structure  
plan for lands within the Project called the Three Sisters Village area in accordance with a  
Terms of Reference approved by Council on October 2, 2018. This became the Three Sisters  
Village ASP. The proposed Three Sisters Village ASP submitted is consistent with the NRCB  
Approval. The work required by the Town cost TSMVPL in excess of $11 million, to prepare  
the Three Sisters Village ASP and the Smith Creek ASP. The Smith Creek ASP is also part of  
the Project which has also been defeated by the Town Council and is the subject of a separate  
appeal.  
6. In December 2020, TSMVPL made an application to the Town to adopt the Three Sisters  
Village ASP.  
7. As the application for the Three Sisters Village ASP was consistent with the approval or  
authorization granted by the NRCB in the NRCB Approval, the Town was required to  
approve the Three Sisters Village ASP under section 619(2) of the Municipal Government  
Act.  
8. The Town did not approve the Three Sisters Village ASP as it was required to do. Instead,  
Town Council voted to defeat the Three Sisters Village ASP at third reading of the bylaw that  
was required to give effect to the Three Sisters Village ASP, and refused to amend the Town  
of Canmore's Municipal Development Plan as required under section 619(2) of the Municipal  
Government Act and as requested under the Council approved Terms of Reference of October  
2, 2018.  
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9. Alternatively, if the application for the Three Sisters Village ASP was in part consistent with  
the NRCB Approval, the Town was required to approve the Three Sisters Village ASP to the  
extent that TSMVPL's application complied with the approval or other authorization granted  
in the NRCB Approval.  
[6]  
In light of these reasons, TSMVPL requested the LPRT to order the Town to adopt the Three  
Sisters ASP to comply with the approval or other authorization granted by the NRCB.  
[7] As noted, the Town also refused the Smith Creek ASP, and the appeal of that decision was filed  
with the LPRT on July 9, 2021. Preliminary hearings were held by videoconference on September 31 and  
30, 20212 and via written submissions on December 3, 20213 and January 28, 20224. These hearings dealt  
with procedural issues including whether the two appeals would be consolidated or heard separately;  
whether the Town’s jurisdictional challenge would be the subject of a separate hearing; the status and  
submissions of intervenors; dates for disclosure; and hearing dates. The LPRT decided to hear the two  
appeals sequentially commencing February 22, 2022, with preliminary and jurisdictional matters common  
to both appeals to be heard first; it also granted the NRCB, Stoney Nations and Y2Y limited intervenor  
status.  
[8]  
The hearing for the merits of the appeal of the Smith Creek ASP commenced on February 23,  
2022 after the oral decision on the jurisdictional matter which applied to both appeals. That hearing was  
left open until the last day of the merit hearing for the Three Sisters ASP, and portions of the written  
submission and testimony that were common to both appeals were entered for the subject Three Sisters  
ASP appeal, with the parties providing excerpts from the transcripts. Y2Y and the Stoney Nations were  
not present for the subject hearing, but had indicated that their evidence and argument would be common  
for both appeals. The NRCB was present for the subject hearing but did not present additional  
submissions. The LPRT determined that it would rely on the exhibits submitted by the intervenors as well  
as appropriate portions of the transcript for verbal submissions; the intervenors chose not to attend or  
identify particular transcript excerpts, which the LPRT found acceptable. Some evidence that was  
presented on questioning that also related to the Smith Creek ASP was considered in deciding that appeal.  
[9]  
The Three Sisters  
ASP Plan Area is on the  
westerly portion of Three  
Sisters Mountain Village  
corresponding to the area  
shown above in pink as  
Three Sisters Village. It is  
south of the Three Sisters  
Parkway and the existing  
Cairns on the Bow  
neighbourhood, east of the  
Tipple Across Valley  
Corridor, west of Three  
Sisters Creek and Three  
Sisters Ridge, and north of  
the Along Valley Wildlife  
1 Decision LPRT2021/MG0483  
2 Decision LPRT2021/MG0662  
3 Decision LPRT2021/MG0816  
4 Decision LPRT2022/MG0247  
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Decision No. LPRT2022/MG0673  
Corridor. The overall ASP area comprises approximately 169 hectares (417 acres). The site is identified  
within the Town’s Municipal Development Plan (MDP) as “Resort Centre” and private recreation. The  
stated purpose of the Three Sisters ASP is to guide future land use decisions to ensure the comprehensive  
development of the Three Sisters Village area to provide policy framework to align land use,  
transportation, recreation, arts and culture, socioeconomic and environmental components with the vision  
for the community. The Three Sisters ASP application was submitted in conjunction with the Smith  
Creek ASP application  
History of the TSMVPL Lands  
[10] In September 1989, Three Sisters Golf Resorts Inc. (TSGR) acquired title to approximately  
1,169 ha (2,887 acres) of land in the Municipal District of Bighorn No. 8 (MD), on the south side of Hwy  
1 in the Bow and Wind Valleys. Development plans for the land contemplated a resort including four golf  
courses, six hotel complexes, and over 6200 housing units. The MD’s relevant planning documents in  
place at the time were the General Municipal Plan and the South Corridor Area Structure Plan  
adopted in 1987 (for the then Improvement District of Bighorn No. 8).  
[11] On August 1, 1990 Alberta Environment (AE) sent a letter to TSGR advising that pursuant to  
Section 8 of the Land Surface Conservation and Reclamation Act, they were required to prepare and  
submit an Environmental Impact Assessment (EIA) report for their proposed development. Terms of  
Reference prepared by AE in December 1990 detailed the information required for the EIA, which  
included project overview and description, market demand, environmental information, socio-economic  
information, transportation, waste disposal, public safety and emergency planning, archeological and  
historical resources assessment, and public consultation. A portion of the TSGR lands at the west end of  
their holdings was intended to be purely residential and was not included in the requirement for the EIA.  
[12]  
In May 1991, the Town applied to the Local Authorities Board to annex a total of 5,390 ha  
(13,319 acres) of land from the MD and Improvement Districts No. 5 and 8. The Annexation Study  
prepared in support of the application stated the land was required to satisfy the long-term growth  
requirements of the community and represent logical extensions to the Town's boundaries from planning,  
servicing, and socio-economic perspectives, and referenced four proposed major projects including the  
Three Sisters Resorts. The Local Authorities Board approved the annexation request and on September 5,  
1991 the Order in Council was signed granting the annexation, effective June 30, 1991.  
[13]  
The Natural Resources Conservation Board Act (NRCB Act) was enacted in December 1990 to  
provide for an impartial process to review projects that will or may affect the natural resources of Alberta  
in order to determine whether, in the NRCB's opinion, the projects are in the public interest, having  
regard to the social and economic effects of the projects and the effect of the projects on the environment.  
The NRCB Act specifies projects that are reviewable, and includes recreational or tourism projects,  
defined as a project to construct one or more facilities for recreational or tourism purposes for which an  
environmental impact assessment has been ordered. The NRCB Act at the time defined "environmental  
impact assessment" to mean a report containing an assessment of the environmental impact ordered under  
section 8(1) of the Land Surface Conservation and Reclamation Act. Accordingly, TSGR’s proposed  
development was reviewable by the NRCB, and an application was submitted in October 1991. The  
NRCB hearing took place from June 15 to July 23, 1992. The Decision Report for Application #9103 –  
Three Sisters Golf Resorts Inc. - was issued in November 1992 and the Order in Council was signed in  
January 1993. It approved the Bow Valley portion of the project but not the Wind Valley portion, with  
conditions relevant to the subject appeal as follows:  
1. The project of Three Sisters Golf Resorts Inc. (hereinafter called "Three Sisters") for a  
recreational and tourism project in the Town of Canmore, as such project is described in  
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Application No. 9103 from Three Sisters to the Board dated October 9, 1991, and  
descriptive material supporting the application marked as exhibits at the Canmore,  
Alberta hearing by the Board from June 15, 1992 to July 23, 1992, including  
undertakings of the Applicant, is approved, subject to the terms and conditions herein  
contained.  
2. Three Sisters shall not develop the portion of the project proposed for the area known as  
Wind Valley, located south of a line 200 m north of, and parallel to, the boundary  
between sections 1 and 12, township 24, range 10, and between sections 6 and 7,  
township 24, range 9, all west of the 5th meridian.  
3. The design of the project in the area immediately north of the boundary referred to in  
clause 2, may be changed with the approval of the Town of Canmore, provided that the  
changes are satisfactory to Alberta Forestry, Lands and Wildlife with respect to the  
provision of wildlife corridors.  
4. The phasing of the project, the land uses and related population densities, as proposed by  
Three Sisters for the Bow Valley portion of the project, are approved, but the detailed  
timing and the specific land uses and population densities may be changed with the  
approval of the Town of Canmore.  
5. The locations of community services, transportation routes and public utilities, as  
proposed by Three Sisters for the Bow Valley portion of the project, are approved, but  
the locations and design details may be changed with the approval of the Town of  
Canmore.  
6. Prior to the construction of any facilities over an undermined area, Three Sisters shall, to  
the satisfaction of the Town of Canmore, complete the four stage assessment of the safety  
of the area for development and take any remedial action required by the Town of  
Canmore.  
14. Three Sisters shall incorporate into its detailed design, provision for wildlife movement  
corridors in as undeveloped a state as possible, and prepare a wildlife aversive  
conditioning plan, both satisfactory to Alberta Forestry, Lands and Wildlife. …  
[14]  
Following the NRCB Approval, TSGR prepared two documents which were submitted to the  
NRCB for review. On June 2, 1994 the NRCB provided a letter stating:  
Further to your recent request for clarification concerning the NRCB Approval of the  
Three Sisters Report, we have reviewed the two documents provided to us by the Three  
Sisters Resorts Inc: Project Summary: NRCB Implementation Plan (Draft) - Background  
Information - February 1994; and Project Summary: NRCB Implementation Plan - April  
1994. As we understand the documents, they were prepared by Three Sisters Resorts Inc.  
to summarize the development as approved in the public interest by the NRCB.  
The staff of the NRCB have examined the documents and concluded that they accurately  
reflect the approval of the Application issued by the NRCB. The documents also  
highlight two specific aspects which the NRCB anticipated would require adjustments to  
the development to reflect the NRCB Approval: "a downsized resort located in the Three  
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Sisters Creek area" and a change in the design of the project in the area immediately  
north of the Wind Valley boundary line. …  
[15]  
The April 1994 document Project Summary: NRCB Implementation Plan (1994 Implementation  
Plan) described four community districts, with details of specific uses in development pods within each  
district. The general description of each Community District was listed as follows:  
1. GRASSI DISTRICT - This District, as a  
natural extension of the town, will provide an  
affordable residential product within a natural  
open space landscape. Local convenience  
commercial facilities may be appropriate to  
this area. This District is adjacent to existing  
development areas of Canmore.  
2. THREE SISTERS DISTRICT - This District  
includes a central core of Lodge/Resort  
facilities and associated retail. It will be the  
major resort employment centre and business  
base of the project. Residential components  
will consist of a combination of primary  
residences, second home/recreation properties,  
retirement communities and natural open  
space as recommended by the N.R.C.B.  
3. STEWART DISTRICT - Community service related facilities such as schools and local  
shopping in conjunction with residential development are within the Stewart District. The  
diverse residential component includes apartments, medium and lower density housing,  
and open space.  
The Community service core comprises a significant employment centre.  
4. DEAD MAN'S FLATS DISTRICT - This District primarily provides low density single  
and multi family housing as recommended by the N.R.C.B. Average lot size is about one  
half acre. A highway commercial component is also included.  
Open natural spaces will predominate.  
[16]  
In 1995, the Planning Act was repealed and replaced with Part 17 of the Act. It included s. 619  
which provided for paramountcy of provincial approvals. The current version reads:  
619(1) A licence, permit, approval or other authorization granted by the NRCB, ERCB,  
AER, AEUB or AUC prevails, in accordance with this section, over any statutory plan,  
land use bylaw, subdivision decision or development decision by a subdivision authority,  
development authority, subdivision and development appeal board, or the Land and  
Property Rights Tribunal or any other authorization under this Part.  
[17]  
In April 1996, TSGR applied to redesignate Pods 7 and 8 in the Grassi District for residential  
purposes. The Town approved the portion of the application corresponding to Pod 8 and refused to  
redesignate the majority of Pod 7. TSGR appealed to the Municipal Government Board (MGB), the  
predecessor to the LPRT, pursuant to s. 619 of the Act. The MGB heard the matter and issued MGB 35/97  
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Decision No. LPRT2022/MG0673  
ordering the Town to amend the Town’s Land Use Bylaw (LUB) to the extent required to be in  
accordance with the complete redesignation application originally submitted by TSGR.  
[18]  
The Town applied to the Court of  
Appeal for leave to appeal MGB 35/97.  
Leave was granted on seven questions of  
law or jurisdiction. The Court application  
was not pursued, and in April 1998 the  
Town and the applicant entered into a  
settlement agreement. Bylaw DC1-98 was  
approved, which allowed various uses on  
sites designated 1 through 9; however, on  
the lands roughly corresponding with the  
Smith Creek ASP area, Site 7 permitted  
only golf courses and accessory uses, and  
Sites 8 and 9 had no permitted or  
discretionary uses. Bylaw DC1-98 stated  
that specific additional land uses will be  
determined at the Area Structure Plan stage  
and implemented by appropriate redesignations under the Town’s LUB.  
[19]  
In September 2004 the Town adopted the Resort Centre Area Structure Plan (2004 Resort ASP)  
comprising sites 1 and 3 of DC1-98. It planned for a golf course and resort accommodation on an area of  
land slightly larger than the Three Sisters ASP area. At the same Council meeting the Town adopted the  
Stewart Creek ASP for sites 2B, 5 and 6 of DC1-98. The development of Stewart Creek proceeded and  
the residential portions of the plan are generally constructed, while development of the commercial  
portions has only recently commenced. Alberta Environment and Parks (AEP), the successor to Alberta  
Forestry, Lands and Wildlife, approved a wildlife corridor alignment in May 2003 in the vicinity of these  
lands. A 35m-wide buffer around the west and south sides of the Resort Centre lands outside the wildlife  
corridor was agreed to between the applicant and the Town to provide for fire thinning and a potential  
public trail around the Resort Centre lands. The 2003 approval was the western portion of the approved  
wildlife corridor, while the eastern portion was not determined at the time.  
[20]  
In 2007 the lands were sold to a real estate fund that went into receivership in 2009. At that time,  
the golf course was partially constructed, and PricewaterhouseCoopers Inc. (PwC), the court appointed  
Receiver, was of the opinion that the costs to complete the golf course would not maximize the value of  
the lands until residential and commercial development of the area took place. PwC focused its efforts on  
determining the configuration of the wildlife corridor, and obtained tentative approval from the Province  
in October 2012. In November 2012, PwC entered into a Framework Agreement with the Town with  
respect to the municipal development process, and retained consultants to prepare the required reports and  
make the necessary applications, in order to maximize the value of the asset. The application for the  
Three Sisters Mountain Village Area Structure Plan was submitted in April 2013; however, Town  
administration did not support the application and did not recommend Council give first reading. A  
number of meetings were held, after which PwC determined that there was no value at the time to  
continue with the municipal approvals process, and that the most prudent and commercially reasonable  
course of action was to market the lands on an as-is where-is basis. The Appellant acquired the lands in  
September 2013.  
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The Smith Creek and Three Sisters ASP applications  
[21]  
The Town’s approval process requires the adoption of an ASP for lands prior to any subdivision  
or development. The Smith Creek ASP application process commenced in April 2015 when Council  
approved a motion to direct administration to proceed in accordance with the Collaborative ASP Working  
Together Guideline for the preparation of an ASP for the Smith Creek area (sites 7, 8 and 9 in DC1-98).  
The delineation of the wildlife corridor in the vicinity of these lands had not been determined and it was  
decided to delay application until the corridor alignment was approved.  
[22]  
The Three Sisters ASP application process commenced in January 2016. TSMVPL determined  
that another golf course in the Resort Centre would no longer be economically viable due to a decline in  
the demand for golf in North America and a market saturation of golf courses in the Bow Valley. The  
2004 Resort ASP had envisioned the golf course as an important feature; therefore, an alternative use for  
the golf course land was necessary and in 2017, TSMVPL submitted an application to amend the 2004  
Resort ASP to remove the 110 ha golf course development and allow for the potential addition of 15-20  
ha of commercial lands and up to 475 additional resort accommodation or residential units. TSMVPL  
considered this to better align with the Town's MDP and to address lands occupied by an unfinished and  
unfeasible golf course. This amendment to the 2004 Resort ASP, the Three Sisters Mountain Village  
Resort Centre Area Structure Plan, Bylaw 23-2004, was defeated by Council at first reading in May 2017.  
[23]  
After the defeat of the proposed amendment, Terms of Reference for the Smith Creek and Three  
Sisters ASP were prepared, to outline items to be considered as part of developing the ASPs and role of  
Administration in working with the applicant. This document was approved by Council in October 2018.  
In February 2020, AEP approved the wildlife corridor alignment, along with recommendations to which  
TSMVPL agreed to commit.  
[24]  
In December 2020, TSMVPL applied to the Town for approval of the two ASPs. Both bylaws  
received first reading in February 2021, followed by a public hearing in March 2021. The Smith Creek  
ASP was defeated at second reading on April 27, 2021. Council made several amendments to the Three  
Sisters ASP at second reading but postponed third reading. The Three Sisters ASP was defeated at third  
reading on May 25, 2021.  
PRELIMINARY MATTER JURISDICTION  
[25]  
The appeals of the Smith Creek ASP and the Three Sisters ASP were filed pursuant to s. 619,  
which was included in Part 17 of Act when it was proclaimed in 1995. Section 619 states:  
619(1) A licence, permit, approval or other authorization granted by the NRCB, ERCB,  
AER, AEUB or AUC prevails, in accordance with this section, over any statutory plan,  
land use bylaw, subdivision decision or development decision by a subdivision authority,  
development authority, subdivision and development appeal board, or the Land and  
Property Rights Tribunal or any other authorization under this Part.  
(2) When an application is received by a municipality for a statutory plan amendment,  
land use bylaw amendment, subdivision approval, development permit or other  
authorization under this Part and the application is consistent with a licence, permit,  
approval or other authorization granted by the NRCB, ERCB, AER, AEUB or AUC, the  
municipality must approve the application to the extent that it complies with the licence,  
permit, approval or other authorization granted under subsection (1).  
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(3) An approval of a statutory plan amendment or land use bylaw amendment under  
subsection (2)  
(a) must be granted within 90 days after the application or a longer time agreed on by  
the applicant and the municipality, and  
(b) is not subject to the requirements of section 692 unless, in the opinion of the  
municipality, the statutory plan amendment or land use bylaw amendment relates to  
matters not included in the licence, permit, approval or other authorization granted by  
the NRCB, ERCB, AER, AEUB or AUC.  
(4) If a municipality that is considering an application under subsection (2) holds a  
hearing, the hearing may not address matters already decided by the NRCB, ERCB,  
AER, AEUB or AUC except as necessary to determine whether an amendment to a  
statutory plan or land use bylaw is required.  
(5) If a municipality does not approve an application under subsection (2) to amend a  
statutory plan or land use bylaw or the municipality does not comply with subsection (3),  
the applicant may appeal to the Land and Property Rights Tribunal by filing with the  
Tribunal …  
Preliminary Issues  
[26] The Town raised two issues with respect to whether the LPRT had jurisdiction to hear and decide  
the appeals. It was agreed by the parties that the preliminary matter would apply to both appeals and  
would be argued at the same time:  
1. Does the application of s. 619 offend the presumption against retrospective legislation, as s. 619  
did not exist when the NRCB Approval was issued in 1992?  
2. Does the LPRT have the authority under the Act to consider the appeal given that s. 619(5) refers  
only to a statutory plan amendment, while the ASPs in question are new statutory plans?  
Town’s Position on Preliminary Jurisdictional Issues  
[27]  
The Town submits the LRPT does not have jurisdiction to hear the two appeals. Section 619 is  
retrospective in nature and it ought not to be given retrospective application to facts that occurred before  
its enactment. Accordingly, s. 619 of the Act does not apply either to the approval process under s. 619(2)  
or to grant jurisdiction to the LPRT under s. 619(5).  
[28]  
In the alternative, if s. 619 is found to apply to the facts in issue, the application falls outside the  
scope of s. 619(5), which refers only to statutory plan amendments; therefore, it is outside of the  
jurisdiction of the LPRT.  
Section 619 Retrospectivity  
[29]  
Section 619 is retrospective in nature: a retrospective statute operates for future events only, but  
changes the legal effect of events that occurred prior to its enactment. This is contrary to the presumption  
against interference with vested rights, whereby legislation attaches a new consequence to a past event.  
As outlined by the Supreme Court of Canada in Brosseau v. Alberta Securities Commission [1989] 1  
S.C.R. 301  
Page 10  
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Decision No. LPRT2022/MG0673  
The so-called presumption against retrospectivity applies only to prejudicial statutes. It  
does not apply to those which confer a benefit. As Elmer Driedger, Construction of  
Statutes (2nd ed. 1983), explains at p. 198:  
. . . there are three kinds of statutes that can properly be said to be retrospective, but  
there is only one that attracts the presumption. First, there are the statutes that attach  
benevolent consequences to a prior event; they do not attract the presumption.  
Second, there are those that attach prejudicial consequences to a prior event; they  
attract the presumption. Third, there are those that impose a penalty on a person who  
is described by reference to a prior event, but the penalty is not intended as further  
punishment for the event; these do not attract the presumption. [emphasis added]  
[30]  
A prejudicial effect includes situations where new legislation imposes a new duty or obligation  
with respect to an event that occurred in the past. The presumption against retrospective application can  
be rebutted where there is a clear legislative intent that a statute was intended to apply to past events. The  
NRCB Approval was rendered in 1992; therefore, properly construed, s. 619 is retrospective because it  
attaches legal consequences (a municipality’s mandatory approval) to a past event (a decision rendered by  
a provincial board). The consequences of s. 619 is prejudicial as it imposes a new obligation with respect  
to that past event.  
[31]  
The effect of applying s. 619 to a past approval of the NRCB would prejudice the municipality  
and impose upon it a new duty and prescribed authority; therefore, the presumption that it should not  
apply to that past event is engaged. Section 619 does not include any clear and unambiguous language  
demonstrating that the legislature intended the section to apply retrospectively; consequently, the  
presumption has not been rebutted. Nothing in Hansard suggests that retrospective application was  
intended, or even contemplated. Therefore, properly interpreted, s. 619 only applies to licences, permits,  
approvals or other authorizations granted by provincial bodies after its enactment in 1995.  
[32]  
The Town acknowledges the MGB considered s. 619 in MGB 35/97 and found it was not  
retrospective in nature. However, the Town submits the MGB erred in both principle and law, and  
therefore its previous decision ought not to be followed. Tribunals are not bound by their previous  
decisions and the issue should be reconsidered, applying the correct legal framework. The factor that  
determines whether a statute is retrospective is whether it attaches new legal consequences to past discrete  
events, as opposed to a status, characteristic or ongoing condition. Although the MGB found the statute  
was not triggered by a discrete event, the Town disputes its reasoning. The MGB stated:  
The NRCB Approval is a continuing fact and is not isolated to the year the Approval was  
granted. This is evidenced by the ongoing requirement for local approvals and the fact  
that the Approval was in respect of a project estimated to continue over a 20 year period  
[33]  
This conclusion is problematic, firstly, because it confounds the NRCB approval and local  
approval, and views them as one single (and, therefore, ongoing) event. However, s. 619 is premised on  
provincial and local approvals being distinct - s. 619 was enacted because of the need to impose a  
hierarchy. Moreover, the logic is flawed as it fails to distinguish between the approval of a project and its  
implementation. On this point, the MGB continued by noting:  
Further, any decision made by the MGB under Section 619 does not have a retrospective  
or retroactive effect on the Approval of the NCRB. It is clear that the NRCB prevails.  
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[34]  
While the statute does operate in this fashion, the MGB neither considered fully whether the  
presumption was rebutted, nor did it apply the proper test when it stated:  
The legislation on its face, by necessary implication, reflects that the Legislature did  
intend Section 619 to apply to the Three Sisters NCRB Approval of 1992.  
[35]  
This is not the test. The presumption can only be rebutted by evidence of clear legislative intent.  
A finding of “necessary implication” without further consideration of the statutory language or its reason  
for being, falls short of this threshold. In light of subsequent case law dealing with retrospectivity, s. 619,  
properly construed, is retrospective in nature and the presumption against its operation to facts that  
occurred prior to its enactment has not been rebutted; therefore, the LPRT does not have jurisdiction.  
New ASP or Amendment  
[36]  
The Town’s failure to enact a new bylaw falls outside of the scope of s. 619(5), which states: “If a  
municipality does not approve an application … to amend a statutory plan or land use bylaw … the  
applicant may appeal to the Land and Property Rights Tribunal by filing with the Tribunal [emphasis  
added].”  
[37]  
Subsection 619(5) lists the instances in which the LPRT has jurisdiction, and that list is closed  
and exhaustive. Moreover, the approach to interpretation of municipal statutes that requires they be given  
a broad, liberal construction is concerned with maximizing the semantic content of what the existing  
words in a text can bear; it cannot be used to add elements to the text itself.  
[38]  
The Town cited the Federal Court of Appeal in Watkin v. Canada (Attorney General) 2008 FCA  
170 which upheld the Human Rights Commission’s finding that it could not consider the seizure of drugs  
under the Food and Drugs Act as the government’s actions did not constitute “provision of services” as  
referenced in the Commission’s enabling legislation:  
In reaching this conclusion, I have had in mind throughout that the Act, being dedicated  
to the advancement and protection of human rights, should be given a broad, liberal and  
purposive interpretation in order to maximize its reach. However this is not a matter of  
giving the word “services” a generous meaning in order to achieve that goal; this is a  
matter of not giving that word a meaning that it cannot bear.  
[39]  
Similarly, finding that the LPRT has jurisdiction to hear an application upon a municipality’s  
denial to implement a new statutory plan would accord a meaning to the term “amendment” that the word  
simply cannot bear.  
[40]  
Giving primary significance to the text of a legislative provision is compatible with a broad,  
purposive interpretation, and is in fact required. As the Supreme Court of Canada explained in Quebec  
(Attorney General) v. 9147-0732 Québec Inc, a purposive interpretation must not overshoot or undershoot  
the actual purpose of the provision. Giving primacy to the text is how this is achieved, and therefore ought  
to be both the starting point and the anchor of a broad, purposive interpretation.  
[41]  
The legislative context suggests the omission of new statutory plans and bylaws from s. 619(5)  
was not an error. As a whole, s. 619 only deals with amendments and not new bylaws or statutory plans.  
Subsection 619(2) is triggered upon an application for a “statutory plan amendment” or a “land use bylaw  
amendment”. Section 619(7) provides the LPRT can only consider whether “the proposed statutory plan  
or land use bylaw amendment” is consistent with a provincial authorization. Many other provisions in the  
Act draw a distinction between new plans and bylaws and amendments to statutory plans and bylaws. For  
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instance, s. 636 of the Act sets out different notice procedures a municipality must follow when preparing  
a new statutory plan and amending a statutory plan, thereby recognizing a distinction. Similarly, s. 631,  
which deals with Intermunicipal Development Plans, gives guidance for their adoption and requires that  
they include provisions setting out a procedure for their amendment, again drawing attention to the fact  
that these distinct concepts were known to the drafters of the Act. The Act also recognizes this distinction  
with respect to bylaws.  
[42]  
It can be inferred that the Legislature was aware of these differences and the decision not to  
include new statutory plans and bylaws was a deliberate choice, not an oversight. This interpretation is  
well supported based on established principles of statutory interpretation. As explained by the Federal  
Court of Appeal, “the expression of one thing in a statute usually suggests the exclusion of the other  
(expressio unius est exclusio alterius)” - i.e. where the legislator has set out a list of items and fails to list  
others that are comparable, the presumption is that this silence is deliberate - the legislature turned its  
mind to it and opted not to make the inclusion. Given the Act as a whole suggests the difference between  
new and amended bylaws and statutory plans was known to the drafters, the presumption is even stronger.  
[43]  
The Town noted that appeal mechanisms concerning municipal approvals are tied to the forms  
applications can take, as set out in s. 619(2): a statutory plan amendment, a land use bylaw amendment, a  
subdivision approval, a development permit or other authorization. Other than amendments to statutory  
plans and to land use bylaws, the Act already has appeal mechanisms in place - development permit and  
subdivision appeals go to the Subdivision and Development and Appeal Board (SDAB) or the LPRT.  
Having other review procedures already in place for various authorizations granted at the municipal level,  
the legislative context indicates s. 619(5) was intended to fill a gap and the LPRT need only be concerned  
with municipalities’ failure to amend land use bylaws or statutory plans. Challenges to new statutory  
plans or new land use bylaws are properly judicial review applications to the Court.  
[44]  
A new land use bylaw or statutory plan engages broad based policy considerations relating to  
land use within the municipality; therefore, judicial review and the corresponding deference it accords  
Council as the decision-maker is better suited to reviewing new bylaws. The limited scope of what the  
LPRT can consider under s. 619(7) suggests the Legislature intended it to deal only with the discrete issue  
of consistency with a provincial approval, which is better suited for consideration in the context of a  
review of a bylaw amendment than of an entire bylaw.  
[45]  
To enlarge the LPRT’s jurisdiction risks frustrating the statutory scheme by rendering other  
means of review redundant. Constraining the LPRT’s jurisdiction to matters concerning amendments does  
not run afoul of the purpose of s. 619, which the Court of Appeal in Borgel v Paintearth (Subdivision and  
Development Appeal Board) 2020 ABCA 192 (Borgel) stated as follows:  
Considering the text of s 619 in the context of the MGA as a whole and its legislative  
history, and having regard to lower court judicial and tribunal interpretation, it is apparent  
that the purpose of s 619 is to reduce regulatory burdens and increase administrative  
efficiency and consistency. Section 619 achieves this by granting paramountcy to  
decisions of certain provincial bodies, to ensure projects are not blocked at the municipal  
level for issues already considered and approved at the provincial level.  
[46]  
Subsections 619(1) and 619(2) give effect to this purpose. Subsection 619(1) says unequivocally  
that a decision issued by a provincial board “prevails” whereas ss. 619(2) prevents a municipality from  
revisiting the substance of the decision and any considerations that were already accounted for by a  
provincial body and requires the relevant municipal approval process to adopt the decision made at the  
provincial level.  
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[47]  
Subsection 619(5), however, sets out the process to seek a review of a municipality’s decision in  
the event it does not give primacy to a decision taken at the provincial level. More particularly, s. 619(5)  
is concerned with whether the LPRT has the jurisdiction to undertake that review. Simply put, limitations  
on a municipality’s decision making over land use decisions and the mechanisms available to challenge  
those decisions are distinct. Interpreting s. 619(5) in a manner that only accords jurisdiction to the LPRT  
in the case where a municipality did not approve an amendment to a statutory plan or land use bylaw, i.e.  
construing s. 619(5) narrowly, does not detract from the purpose of s. 619 as identified by the Court of  
Appeal. Giving s. 619(5) a broad construction that goes beyond its text is not necessary for s. 619 to  
achieve its purpose.  
[48]  
The Town conceded that the Appellant could have applied for an amendment to the land use  
bylaw (LUB) notwithstanding that the Town’s planning process requires an ASP in advance of such an  
application. If the Appellant had done so, the Town agreed that the LPRT would have jurisdiction to hear  
an appeal of the Town’s refusal to amend the LUB.  
TSMVPL’s Position on Preliminary Jurisdictional Issues  
[49]  
TSMVPL submits that the LPRT does have jurisdiction to consider the appeals, and set out the  
relevant historical context. The Natural Resources Conservation Board Act (NRCB Act) was proclaimed  
on June 3, 1991. The NRCB’s role includes determining whether provincially important recreation and  
tourism projects are in the public interest. Responsibility for evaluating Three Sisters’ proposed  
development was transferred to the NRCB under the NRCB Act at the time it was proclaimed. The NRCB  
issued its Decision Report on November 25, 1992. On January 6, 1993, the Lieutenant Governor  
authorized the NRCB to grant Approval No. 3 in the form set out in Appendix “C” of the NRCB Decision  
Report.  
Section 619 Retrospectivity  
[50]  
In 1994, Alberta Municipal Affairs circulated a document entitled “Alberta Planning Act Review  
’94 – Proposals”. The document included a proposal to divide responsibility between the provincial  
government and municipalities with respect to development projects; to give effect to the division of  
responsibilities, Alberta Municipal Affairs suggested amendments to s. 2.1(1) of the Planning Act. The  
proposed amendment to the Planning Act did not take place, since it was repealed and replaced by Part 17  
of the Act in 1995. However, Part 17 introduced s. 619, which was based on the proposed Planning Act  
amendment. Section 619 was enacted to clarify the relationship between provincial and municipal  
approvals, and to ensure consistency by granting paramountcy to provincial approvals and limiting local  
autonomy to that extent. Quoting from Hansard, TSMVPL noted it was contemplated that the MGB  
would handle disputes that arose where municipal decisions were arguably not consistent with provincial  
approvals:  
What this government wants is to have local areas have local control over their affairs  
with the province laying down some guidelines for consistency. … Some municipalities  
have asked for a clarification of the relationship between NRCB, ERCB, and Alberta  
Energy and Utilities Board approvals and municipal approvals. The amendments in Bill  
32 do just that. Municipalities will be able to deal with legitimate municipal concerns in  
the normal approval process while respecting NRCB and ERCB approvals. Dispute  
resolution may be referred to the municipal government board should municipal  
decisions not be consistent with NRCB and ERCB approvals. It is expected that only a  
few municipalities will be affected by these provisions.  
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[51]  
There is no retroactive or retrospective effect of s. 619 on the NRCB Approval or the rights the  
NRCB Approval grants TSMVPL. A statute can modify the future legal effect of a fact that occurred prior  
to its passage without being retrospective or retroactive. This is the case with s. 619. The NRCB Approval  
is an ongoing fact, and was intended to apply to a project that would take decades.  
[52]  
Section 619 recognizes the paramountcy of the decisions of provincial boards, including those  
that no longer existed at the time s. 619 was introduced. The Legislature intended parties to have a right to  
appeal decisions of municipalities that were inconsistent with provincial approvals, even where the  
provincial approval pre-dated the addition of s. 619 into the Act. Alternatively, even if s. 619 were found  
to operate retrospectively, legislation that provides a benefit to a party does not offend the presumption  
against retrospectivity. The Town’s argument fails to recognize that the Town is a decision maker in the  
ASP approval process; it is not a “party” whose rights are adversely affected.  
[53]  
Section 619 is not retrospective, it has “immediate effect.” The Interpretation of Legislation in  
Canada, describes immediate effect as:  
Where a new statute is declared applicable, for the future, to ongoing situations, it is said  
to have immediate effect. This notion encompasses situations in which it is either the  
facts contemplated by the rule or the legal effects of the rule which are ongoing.  
[54]  
This rule is codified in the Interpretation Act, which requires that enactments “be construed as  
always speaking and shall be applied to circumstances as they arise.” The Supreme Court of Canada in  
Dell Computer Corp. v. Union des consommateurs, 2007 SCC 34 stated:  
Professor P.-A. Côté writes in The Interpretation of Legislation in Canada (3rd ed.  
2000), at p. 169, that “retroactive operation of a statute is highly exceptional, whereas  
prospective operation is the rule”. He adds that “[a] statute has immediate effect when it  
applies to a legal situation that is ongoing at the moment of its commencement: the new  
statute governs the future developments of this situation” (p. 152). A legal situation is  
ongoing if the facts or effects are occurring at the time the law is being modified (p. 153).  
A statute of immediate effect can therefore modify the future effects of a fact that  
occurred before the statute came into force without affecting the prior legal situation of  
that fact. [emphasis added]  
[55]  
Section 619 has immediate effect and applies to the NRCB Approval (which exists as a  
continuing fact) and Town Council’s decision not to approve the Three Sisters ASP. The MGB rejected  
the same argument concerning retrospective legislation when the Town raised it in 1997. MGB 35/97  
stated:  
The Town challenged the MGB's authority to hear and decide this appeal which was  
lodged under Section 619 of the Act. The MGB does not agree with the Town's  
contention that Section 619 operates retrospectively or retroactively with regard to the  
1992 NRCB Approval for the Three Sisters project. The NRCB Approval is a continuing  
fact and is not isolated to the year the Approval was granted. This is evidenced by the  
ongoing requirement for local approvals and the fact that the Approval was in respect of a  
project estimated to continue over a 20 year period. Further, any decision made by the  
MGB under Section 619 does not have a retrospective or retroactive effect on the  
Approval of the NRCB....  
... The MGB considers that the legislation on its face, by necessary implication, reflects  
that the Legislature did intend Section 619 to apply to the Three Sisters NRCB Approval  
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of 1992. Furthermore, the passing of Section 619 provided a remedy not otherwise  
available. Without it the NRCB Approval granted rights and authority to Three Sisters  
which it could not effectively enforce. The Courts could hear a motion by Three Sisters  
that the redesignation process by the Town was not carried out in accordance with the  
law. However it is not clear that the type of remedy sought by Three Sisters would be  
available through the Courts.  
[56]  
The MGB was correct in addressing the Town’s arguments in 1997, and that same reasoning  
applies today. There is no compelling reason for the LPRT to depart from this reasoning; indeed, to  
ignore the reasoning would be an error. As the Supreme Court of Canada has held in Canada (Minister of  
Citizenship and Immigration) v Vavilov, 2019 SCC 65, any precedents on the issue before the  
administrative decision maker or on a similar issue will act as a constraint on what the decision maker can  
reasonably decide.  
[57]  
The language of s. 619 supports the interpretation that s. 619 applies to provincial approvals  
which pre-date it. Five provincial bodies are listed, including the Energy Resources Conservation Board  
(ERCB). At the time s. 619 came into effect, the ERCB no longer had any power to issue licences,  
permits, approvals or other authorizations. As all decisions of the ERCB would predate s. 619, it must be  
interpreted to apply to provincial approvals that predate it.  
[58]  
Should the LPRT find s. 619 does have a retrospective effect despite the reasoning in MGB  
35/97, the presumption against retrospectivity still does not apply to s. 619. That presumption does not  
apply to legislation that creates a “benevolent consequence.” As stated by the Town, the guidance from  
the Supreme Court of Canada shows the presumption against retrospectivity applies only to prejudicial  
statutes. A party’s right of appeal where a municipality has not acted in accordance with a section of the  
Act is a “benevolent consequence to a past action" and does not attract the presumption against  
retrospectivity. The MGB identified the beneficial consequence of s. 619 in MGB35/97 noting it provided  
a remedy not otherwise available.  
[59]  
There is societal benefit to establishing clear paramountcy of provincial approvals. The Court of  
Appeal described this benefit in the municipal law context in Love v Flagstaff (County of) Subdivision  
and Development Appeal Board 2002 ABCA 292:  
The need for predictability is equally imperative. The public must have confidence that  
the rules governing land use will be applied fairly and equally. This is as important to the  
individual landowner as it is to the corporate developer. Without this, few would wish to  
invest capital in an asset the value of which might tomorrow prove relatively worthless.  
This is not in the community’s collective interest.  
[60]  
To assess whether s. 619 provides a “benevolent consequence” – i.e. a benefit or a prejudice, the  
LPRT must determine the party whose rights are affected by s. 619. The only party whose rights are  
affected by s. 619 is a party that holds a provincial approval. A plain reading of s 619(1) states that  
provincial approvals prevail “over any statutory plan, land use bylaw, subdivision decision or  
development decision by a development appeal board, subdivision and development appeal board or the  
[LPRT].” These words reflect a legislative intention to protect the rights of the approval holder and to  
limit local autonomy in some cases.  
[61]  
The Town’s argument that s. 619 is prejudicial and imposes a new obligation or duty on the  
municipality misconstrues whose rights are affected. The municipality is inserting itself as a recipient of  
rights under the NRCB Approval. The NRCB Approval does not provide any rights to the Town. The  
Town is an administrative decision maker in the ASP approval process. It has an obligation to comply  
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