Three Sisters Mountain Village Properties Ltd. v Town of Canmore

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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Decision No. LPRT2022/MG0673

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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Decision No. LPRT2022/MG0673

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 3¹and

30, 2021²and via written submissions on December 3, 2021³and 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

¹Decision LPRT2021/MG0483

²Decision LPRT2021/MG0662

³Decision LPRT2021/MG0816

⁴Decision 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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Decision No. LPRT2022/MG0673

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

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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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with s. 619 and must act in accordance with the statutory regime. Acting in accordance with the

Legislation is a legal obligation and cannot be considered prejudicial.

New ASP or Amendment

[62]

The second jurisdictional question is whether s. 619 provides TSMVPL with a right of appeal. In

1987, pursuant to Ministerial Order No 285/87, the South Corridor Area Structure Plan was adopted. It

covered 6,400 acres of land stretching from the Town of Canmore Urban Fringe Boundary up to the

Pigeon Mountain recreation area. This area includes the plan area of the Smith Creek ASP.

[63]

In 2004, the Town approved the 2004 Resort Centre ASP for lands that include the Three Sisters

ASP plan area. In 2017, TSMVPL applied to amend the 2004 Resort Centre ASP. On May 2, 2017, Town

Council denied first reading of the bylaw and cited a lack of clarity on the resort, the extent of the

amendments, and development phasing of Smith Creek and the Resort as key reasons why the ASP did

not move forward. TSMVPL had to undertake a new ASP process to provide a holistic vision for the

balance of the undeveloped Three Sisters Lands, comprising the Smith Creek ASP and Three Sisters ASP

plan areas. The Town and TSMVPL agreed to Terms of Reference that provided the foundation, process,

and expectations for the development of the Smith Creek and the Three Sisters ASPs. Council approved

the Terms of Reference on October 2, 2018 and TSMVPL spent the next several years collaborating with

the Town under the Terms of Reference. In December, 2020 TSMVPL applied for approval of the two

ASPs. Both were rejected by Town Council in the spring of 2021.

[64]

TSMVPL argues the two ASPs are an amendment, leaving no question as to whether the LPRT

has jurisdiction under s. 619(5). The Smith Creek ASP is the latest attempt to update the area structure

plan for these lands and is, in fact, an amendment to an existing statutory plan, the 1987 South Corridor

Area Structure Plan, which the Town acknowledged at the time of its 1991 annexation application.

Similarly, the Three Sisters ASP is an amendment to an existing statutory plan, the 2004 Resort Centre

ASP.

[65]

Alternatively, even if the ASPs are new statutory plans, a proper interpretation of s. 619 provides

TSMVPL the right to appeal to the LPRT. The Legislature intended s. 619 to provide a complete code to

deal with the interrelationship between provincial approvals and the municipal planning process. To give

effect to this intention, the LPRT’s jurisdiction must be interpreted textually, contextually and

purposively as summarized by the Court of Appeal in Edmonton (City of) Library Board v Edmonton

(City of), 2021 ABCA 355:

[29] The question before this Court involves the scope of an appeal board’s variance

power under the MGA. The words in the MGA must be read in their entire context, in

their grammatical and ordinary sense and in harmony with the legislative scheme, its

object and the intention of the Legislature: ...

[30] A contextual approach recognizes that what words mean depends on the entire

context in which they have been used: ... However, in addition to considering the text and

context, “legislative intent can be understood only by reading the language chosen by the

legislature in light of the purpose of the provision”: ... Therefore, the meaning of a

provision must have regard to its text, context and purpose: ...

[66]

The modern approach is consistent with the Interpretation Act, which provides:

10 An enactment shall be construed as being remedial, and shall be given the fair, large

and liberal construction and interpretation that best ensures the attainment of its object.

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[67]

These principles imply s. 619 must be read as a whole, in the context of Part 17 and the rest of the

Act. Similarly, the subsections within s. 619 must be read together to form a rational, internally consistent

framework. An interpretation that excludes applications for new statutory plans from s. 619(2), (5) and (8)

would undermine the coherence of s. 619, and would not advance the purposes for which s. 619 was

enacted.

[68]

The Court of Appeal endorsed an interpretation that favours reading the whole of s. 619 in

Borgel. The Court determined that s. 619 is to be interpreted broadly and purposively and rejected a

narrow reading of the term “municipality” in s. 619, concluding that it included an “SDAB”. The Court

stated:

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.

Section 619 is aimed at distinguishing between provincial and local planning authorities.

Section 619(1) explicitly includes the “subdivision and development appeal board” and s

619(2) refers back to s 619(1). Section 619(4) is engaged where a municipality holds a

hearing, and the SDAB is the only local planning body required to have hearings.

Nothing in the text of the MGA (including the broad definition of “municipality” in s

1(1)(s)) excludes the SDAB from the purview of s 619. Moreover, to do so would defeat

the purpose of the legislation.

The SDAB correctly concluded that it was included in the definition of “municipality”

for the purpose of s 619 of the MGA.

[69]

Despite the fact that neither the term “SDAB” nor “Municipal Planning Commission” are

explicitly mentioned in the text of 619(2), the Court took a broad and purposive approach and endorsed

the SDAB’s conclusion that “SDAB” was included in the definition of “municipality” even though the

plain language of s. 619(2) alone does not refer specifically to SDABs. Similarly, a broad and purposeful

reading of s. 619(5) should take into consideration the broad wording in s. 619(2), which refers to “other

authorizations under this Part”. This wording shows the Legislature’s intent was to provide a catch all

right of appeal to a party whose application does not otherwise fit into another category of municipal

approval provided by 619(2).

[70]

Nothing in the text, context, or purpose of s. 619 suggests the Legislature intended to direct

appeals of new statutory plans to the Courts rather than the LPRT. The Town's proposed interpretation

defeats the purpose of the legislation by creating an artificial distinction between "new" and "existing"

statutory plans. The result would be that any provincial approval concerning lands without a statutory

plan in place would be excluded from appeal to the LPRT. As well, a municipality could frustrate the

purpose of s. 619 by inserting a requirement for a statutory plan into the land use bylaw, and then

insisting an applicant prepare a "new" statutory plan before any rezoning, subdivision or development on

lands. This is precisely what has happened with the two ASPs. If the Town's interpretation is accepted, a

developer who seeks to work with a municipality to develop a new statutory plan would have its right of

appeal to the LPRT extinguished; the applicant would have no recourse except judicial review if a

municipality decided not to approve a "new" statutory plan.

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[71]

The proper interpretation of s. 619 supports two conclusions: first, s. 619 provides a complete

code that governs the relationship between certain provincial approvals which prevail over municipal

decisions; second, s. 619 provides a broad right of appeal to the LPRT. Limiting the right of appeal to

amendments to statutory plans and land use bylaws would be contrary to the purpose of the legislation,

which is to “reduce regulatory burdens and increase administrative efficiency and consistency” by

ensuring provincial authorizations prevail over other decisions.

NRCB’s Position on Preliminary Issues

[72]

The NRCB explained its jurisdiction and authority under the NRCB Act, and argued that s. 619 is

not retrospective. It took no position on the other preliminary issue concerning the LPRT’s jurisdiction.

[73]

The NRCB is a corporation established under section 12 of the NRCB Act. The purpose of the

NRCB Act is

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 board’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.

[74]

The process for NRCB decision-making under the NRCB Act involves the NRCB making a

finding as to whether a project is in the public interest - this is the “public interest decision.” In the case of

the subject NRCB Approval, the reasons for the public interest decision are set out in the NRCB Decision

Report No. 9103 dated November 25, 1992. If the NRCB finds a project not to be in the public interest, it

will generally refuse to grant an approval; in contrast, if it finds the project is in the public interest, it

generally makes a recommendation to the Lieutenant Governor in Council to approve the project. The

recommendation may be accompanied by conditions “that the Board considers appropriate.”

[75]

The Lieutenant Governor in Council (LG) considers the NRCB’s recommendation, and may

authorize the approval, authorize with prescribed terms and conditions, or not authorize the approval. If

the LG authorizes the approval (with or without terms and conditions), the LG makes an Order in

Council. After receiving an Order in Council authorizing the approval, the NRCB then issues a formal

approval. In the case of Three Sisters Approval, this took place in January 1993.

[76]

Section 10 was added to the NRCB Act in 1997 and provides the NRCB with authority to amend

an approval that it has granted. The NRCB may take action to effect the purpose of the NRCB Act (with

approval of the LG), and may do necessary or incidental things to exercise a power or duty under the

NRCB Act, or another enactment. The NRCB also has various powers that assist with its project reviews.

An order or direction of the NRCB may be appealed to the Court of Appeal only on a question of

jurisdiction or law, and only with leave (if filed and served within 30 days). The NRCB Act also contains

a privative clause at section 32.

Section 619 Retrospectivity

[77]

The NRCB argues s. 619 is prospective in nature. It applies to all existing NRCB approvals

regardless of whether they were granted prior to or after September 1, 1995. Section 619 places restraints

on municipalities, SDABs and the LPRT, and requires them to bend their decisions around existing

approvals, licences, or permits; however, it has no impact on the legal effect of decisions of the NRCB.

As the MGB noted in its 1997 decision, the MGB “had no authority to alter the decision originally issued

by the NRCB.”

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[78]

Section 619 states that an approval “granted by” the NRCB “prevails” over various instruments

that a municipality, SDAB or LPRT may produce (Municipal Instruments). Although the wording

“granted by” suggests the granting has occurred before the Municipal Instrument comes about, nothing in

the text, context, or purpose of s. 619(1) suggests that s. 619 applies only to NRCB approvals granted

after the coming into force of the provision. Had the Legislature intended that restriction, it could have

said so. The present tense of “prevails” speaks to a state going forward, which is to be expected since s.

619 is intended to govern the actions of municipalities, SDABs and the LPRT going forward after

September 1, 1995. The legal effect of s. 619 is upon the Municipal Instrument, rather than an existing

(“granted”) NRCB approval.

[79]

An NRCB approval is an example of what R. Sullivan calls a “continuing situation” of fact in

Sullivan on the Construction of Statutes, 6th ed:

Continuing situations consist of a fact that endures over a period of time, such as residing

in a place, possessing a thing or being a parent. The duration of a continuing situation is

sometimes set out in legislation … Otherwise, the situation continues until the underlying

fact comes to an end. Many continuing situations consist of having a legal status, such as

citizenship or ownership and could be thought of as an ongoing legal effect rather than an

ongoing fact.

[80]

For an NRCB approval, the fact begins when the approval is issued and the situation continues

until the approval is cancelled, or, presumably, when a project is decommissioned. The 1993 Three

Sisters Approval existed in 1995, applied in 1995, and still applies in 2022. As long as s. 619 is in its

present form, a municipality will, whenever it takes action in relation to a statutory plan, need to ensure

its action is consistent with any approvals, licences and permits issued by the five statutory bodies

identified in s. 619.

[81] The Three Sisters project is still being built out, nearly 30 years after the NRCB granted the

approval. However, s. 619 binds a Municipal Instrument in relation to any NRCB approval that pre-dates

it, and the impact of s. 619 after September 1, 1995 is the same whether or not the approved project is

complete. The impact is also the same whether the approval was “granted by” the NRCB before or after

September 1, 1995. The salient fact is that an NRCB approval has been granted.

Findings

1. The NRCB Approval has effect under s. 619 notwithstanding that s. 619 was enacted after the

NRCB Approval was issued.

2. Both the Smith Creek ASP and the Three Sisters ASP amend a statutory plan for the purposes of

s. 619.

3. Even if the Smith Creek ASP and Three Sisters ASPs were new statutory plans, s. 619 provides

for an appeal to the LPRT.

Decision

[82]

The LPRT has jurisdiction to hear the appeal.

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Reasons

Section 619 Retrospectivity

[83]

The LPRT agrees with TSMVPL and the NRCB that s. 619 is not retrospective - it provides for

paramountcy of provincial approvals that are in place at the time of a municipal action. It is clear from the

inclusion of ERCB in s. 619(1) that the legislative intent is that s. 619 should apply when an approval

exists, regardless of when it may have been granted. 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.

[84]

Having found that s. 619 not retrospective, the LPRT did not have to consider whether s. 619 is

prejudicial in limiting municipal autonomy or beneficial to the holder of the Provincial permit.

New ASP or Amendment

[85]

The 1987 South Corridor ASP has not been repealed and continues to be in effect, and its plan

area includes the lands within the plan area of the Smith Creek ASP. Similarly, the 2004 Resort Centre

ASP has not been repealed and continues to be in effect, and its plan area includes the lands within the

plan area of the Three Sisters ASP. Accordingly, the LPRT finds that the subject appeals are each, in fact,

an amendment notwithstanding that the Town instructed TSMVPL to follow the application process

applicable to new ASPs.

[86]

Section 619(5) allows an applicant to file an appeal with the LPRT if a municipality does not

approve an application to amend a statutory plan or land use bylaw and the application is consistent with

an NRCB approval. On appeal, 619(8) authorizes the LPRT to order the municipality to amend the

statutory plan or land use bylaw to comply with a provincial approval.

[87]

The plain wording of these subsections does not require the amendments ordered by the LPRT to

be specific amendments to specific clauses in an existing statutory plan. Rather, the provisions give the

LPRT broad authority to order modifications to existing land use planning bylaws when applications to

amend them are consistent with a relevant provincial approval. In this case, the Smith Creek ASP and

Three Sisters ASPs would in fact amend the existing planning documents, including the 1987 South

Corridor ASP and the 2004 Resort Centre ASP. As such, the applications now under consideration are

applications to amend the existing ASPs for the purposes of s. 619(8) and the LPRT has jurisdiction to

decide the appeals.

[88]

This conclusion is consistent with the purpose of s. 619, which, as noted in Borgel, is to “reduce

regulatory burdens and increase administrative efficiency and consistency …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.” The Appeal mechanism in 619(8) furthers the

statutory intent by enabling applicants to obtain amendments to municipal land use planning legislation

that would stop development approved by a provincial authority for reasons that are inconsistent with the

provincial approval. In this case, this intent would be frustrated if the Town’s decisions to block the

project by refusing the applications for the Smith Creek and Three Sisters ASPs were found to be outside

the scope of a s. 619 appeal.

[89]

The above considerations are sufficient to conclude the LPRT has jurisdiction to proceed with the

appeals in the current circumstances. However, even if the South Corridor ASP and the 2004 Resort

Centre ASP were not already in place and the ASPs under appeal were completely new ASPs for land

where no prior statutory plan had existed, the LPRT would still have found it has jurisdiction to hear the

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appeals. As already noted, the purpose of s. 619 is to promote efficiency by establishing paramountcy of

provincial authorizations. When the Legislature enacted this provision, it would have recognized that land

use bylaws and municipal development plans were mandatory for most municipalities; further, there

would be a need to amend the existing regulatory backdrop in any given municipality to allow

provincially approved developments to proceed.

[90]

Obvious potential amendments to this backdrop would include changes to the existing MDP

and/or LUB; in other cases, the existing framework might also involve addition of ASPs or other statutory

plans. Given this context, the reference to “amendments” in s. 619 should not be interpreted as

amendments or changes to the existing land use planning framework in a municipality. To interpret s.

619(8) as preventing appeals respecting new statutory plans would not serve any discernable or

reasonable policy intent. This finding becomes even clearer given the observation that a municipality - as

part of its internal planning practice or policy – can adopt a requirement for a “new” ASP (or Area

Redevelopment Plan) before amendments to the LUB and/or MDP are considered. Such a requirement

would thwart the appeal mechanism under s. 619; this absurd consequence follows from an interpretation

of s. 619 that limits appeals under s. 619(8) to exclude new ASPs.

[91]

In this case, the Town’s LUB requires an ASP as a first step in the municipal development

approval process. This requirement is reasonable and consistent with good land use planning; however,

the LPRT notes that if a new ASP is not appealable under s. 619, the proponent could still apply for an

LUB amendment to effect the development, along with an amendment to waive the requirement for an

ASP. The Town agreed that such an application could be appealed under s. 619. In the LPRT’s view, the

legislature could not have intended to encourage procedures that circumvent good land use planning

practices in order to preserve the right of appeal. The better interpretation recognizes that the statutory

intent is to allow a broader right of appeal that encompasses applications for new statutory plans.

[92]

In conclusion, while the LPRT found that the Smith Creek and Three Sisters ASPs are, in fact,

statutory plan amendments, it also finds that on a purposive reading of s. 619, the LPRT would have

authority to consider the appeals even if there were no pre-existing ASPs.

PRELIMINARY MATTER 2 – DISPUTED EVIDENCE – TRANSCRIPT EXCERPTS

[93]

At the outset of the Town’s cross examination of TSMVPL’s planner, J. Karpat, the Town sought

to put to the witness a document that had not been disclosed previously, which purported to be a summary

of the applicant’s comments at the NRCB hearing. TSMVPL objected to the document and the LPRT

considered submissions from the parties as a preliminary matter before proceeding.

Town’s Position

[94]

The document is a 19-page summary of comments made during the NRCB hearing, and is titled

“Undertakings of Three Sisters Golf Resorts, Inc. re. application 9103.” The hearing took 28 days and it is

reasonable to rely on a summary that someone had prepared. It is stamped “NRCB COPY” and dated

December 14, 1992 in handwriting at the top. The Town seeks to put to the witness certain sections of this

summary document because the sections speak to the representations made on behalf of Three Sisters

during the hearing. Condition 1 of the NRCB Approval indicates it is based not only on the submissions

but also the representation of the parties. The Town argued this document is relevant, and is a practical

way to address undertakings made at the hearing. It should be allowed into evidence as it will facilitate

cross examination of the Appellant’s witness regarding oral commitments made during the NRCB

hearing.

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[95]

In response to TSMVPL’s objection, the Town suggested it could go through the transcripts to

obtain the specific transcript references cited in the summary document. The Town also argued that it is

not the Town’s role to do a consistency analysis. Whether or not the transcript excerpts factored into the

Town’s decision not to adopt the ASPs is not relevant to whether the LPRT should consider them in its

analysis of consistency.

TSMVPL Position

[96]

This document was not included in the exhibits that were received from the NRCB; it is not

marked as an exhibit and is merely stamped “Received” by the NRCB. TSMVPL objected to the

document given that it is somebody’s unattributed interpretation of what was said at the NRCB hearing.

Asking the witness to interpret this interpretation is highly prejudicial. If the Town were to submit the

transcript references to provide the statements in context, TSMVPL would have no objection. There was

an extensive pre-hearing disclosure process and the Town had ample opportunity to submit this document

previously. It is unreasonable to question the witnesses about oral evidence given in a hearing 30 years

ago. It was not contained within the exhibits from the NRCB that were noted to be undertakings of the

applicant.

[97]

Further, since this information was not discovered until the day before it was tendered as an

exhibit at the subject hearing, it could not have been considered in the Town’s consistency analysis;

therefore, the LPRT should not consider it in the proceedings.

NRCB Clarification

[98]

The NRCB did not have a position on the matter but provided information in response to

questions and provided the Town with the transcript to assist in the specific transcript references. The date

noted on the document is after the date of the decision report, and fell during the time the NRCB was

awaiting Cabinet consideration. The NRCB did not always stamp documents it received, but if it did, it

would generally have been stamped on the date it was received by the NRCB.

Decision

[99]

The LPRT allowed the document of excerpts from the transcript of the 1992 NRCB hearing into

its record; however, in the interests of procedural fairness, offered the Appellant additional time to review

the materials if necessary.

Reasons

[100] The LPRT notes the parties agreed to the disclosure deadlines set after the preliminary hearing,

and this document was submitted well after the agreed to timelines. However, the LPRT recognizes this

document was a printed copy in the Town’s files and accepts it was not found until the commencement of

the hearing. In hearings of this type, the LPRT generally prefers to accept as much relevant or potentially

relevant information as is available, and evaluates the weight it should be given. Under the circumstances,

the LPRT determined the transcript extracts should be admitted as they would provide insight into

representations made at the NRCB hearing. Nevertheless, the LPRT recognizes the witnesses being

questioned were not present at the 1992 hearings and that answers to some questions might not be

possible.

[101] The document that was entered into evidence, accepted by the Appellant, consisted of specific

extracts from the transcript of the 1992 NRCB hearing, and did not include the unattributed commentary.

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PRELIMINARY MATTER 3 – DISPUTED EVIDENCE – MAPS

[102] The Town sought to enter two maps during direct evidence of its two witnesses that had not been

included in its disclosure. The first was a map showing the commercial and residential portions of the

total lands in the NRCB Approval compared to what has been developed to date. The second map related

to amendments passed by Council during second reading of the ASP. It was a revised phasing map that

was stated to be the correct map for the Council amendment to the phasing plan in the ASP.

Map 1 - Town’s Position

[103] The Town stated the map is intended to be illustrative, as it was prepared in response to

TSMVPL’s statements that commercial development could only take place when there is sufficient

residential to support it. The map is intended to demonstrate that significant residential development has

already occurred. This information is available within the documents already entered, but the map would

assist the LPRT in understanding the situation. The Town conceded that it had not been disclosed in

accordance with the agreed disclosure timelines.

Map 1 - TSMVPL Position

[104] TSMVPL objected to allowing the map into evidence. The information on the map relates to the

NRCB Approval, which has been known to the Town for 30 years, and assessment information that is

entirely within the control of the Town. There is no reason it could not have been disclosed in accordance

within the agreed time lines. The Town’s witness statements were minimal, compared to the detail

provided by the Appellant. To bring in this information at this time is procedurally unfair, particularly

when the evidence cannot be verified and is highly prejudicial to TSMVPL.

Map 1 - Decision

[105] The map was not entered into evidence.

Map 1 - Reasons

[106] The LPRT agrees that it would be procedurally unfair to allow in evidence that cannot be verified

at this point in the hearings; further, the argument to be made could be illustrated using documents

already in evidence. Accordingly, the LPRT determined it would not accept the newly prepared map into

evidence and directed the Town to use the documents already entered to illustrate their position.

Map 2 - Town’s Position

[107] Council had made amendments to the Three Sisters ASP at second reading on April 27, 2021,

which were discussed at a meeting between Town Administration and TSMVPL on May 14, 2021 prior to

the May 25, 2021 Council meeting. The Town had discovered in preparing for the subject hearing that the

revised phasing map attached to the meeting notes was not the phasing map discussed at Council, and

sought to enter the correct phasing map, as it is relevant to Council’s concerns and the reasons that third

reading was not given.

Map 2 - TSMVPL Position

[108] TSMVPL noted that the approved Council minutes do not include a map, and objected to its

submission. It requires a motion of Council to amend approved minutes, and this map is not relevant to

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the question of consistency that the LPRT must decide. Further, its submission is well after the agreed

disclosure time lines which were set to avoid these unnecessary delays.

Map 2 - Decision

[109] The map was not entered into evidence.

Map 2 - Reasons

[110] The LPRT was of the opinion that this map should have been submitted in disclosure as agreed to

by the parties and it would be unfair to accept it at this point in the hearing. This map is not included in

the approved minutes and there was insufficient time to demonstrate its accuracy. Further, the map is not

necessary to make the arguments sought to be made by the Town, and documents already in evidence

could be used to make the points.

ISSUES

[111] The overarching issue to be decided is whether the Three Sisters ASP is consistent with the

NRCB Approval, and, if it is, whether the LPRT should order the Town to approve the ASP amendment

to the extent that it complies with the NRCB Approval pursuant to s. 619(8) of the Act. Generally, the

Town argues that overall consistency should be the basis of evaluation, while TSMVPL argues that

consistency should be considered on a section-by-section basis. There were many arguments and

submissions at the Smith Creek ASP hearing, with TSMVPL presenting seven witnesses who presented

reports detailing consistency with each section of the NRCB Approval and the Town presenting two

witnesses who provided general testimony with respect to overall consistency in several areas of interest

to the Town. Y2Y presented one witness and Stoney Nations provided argument. For the subject appeal,

four of TSMVPL’s witnesses and both Town witnesses provided additional testimony.

[112] The Town and intervenors provided a single submission to apply to both ASPs under appeal.

Where possible, the LPRT separated the evidence that applied to only the Three Sisters appeal; however,

some evidence was combined, and was identified as such where applicable.

[113] The specific matters to be considered are whether the Three Sisters ASP is consistent with the

NRCB Approval in the following respects:

1. The NRCB Approval provides the Town with authority to deny the ASP even if it is consistent

with the NRCB Approval.

2. The fiscal impact on the Town is not as beneficial as noted in the NRCB Approval.

3. Phasing in the Three Sisters ASP does not provide the benefit noted in the NRCB Approval

4. The amount of housing, unit density and total population is not consistent with the NRCB

Approval, nor is the affordable housing provided in the Three Sisters ASP consistent with the

NRCB Approval.

5. The wildlife corridor provided is not consistent with the direction in the NRCB Approval.

6. The NRCB’s finding that the project is in the Public Interest may no longer be valid given the

passage of time and intervening events.

7. Overall consistency with the NRCB Approval in other respects.

8. If the Three Sisters ASP is consistent with the NRCB Approval, whether the LPRT should order

the Town to adopt the ASP with amendments or as submitted.

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Issue 1 – Authority of Town to Deny the ASP

SUMMARY OF TOWN’S POSITION

[114] The NRCB Approval does not provide carte blanche to TSMVPL to develop on the lands covered

by the NRCB Approval, to effectively fill in the details later. The NRCB did not authorize development

of any combination and proportion of industrial, commercial and residential development, over any

period of time, and the ASPs provide for development well outside of what was considered by the NRCB.

To interpret the NRCB Approval in such a way would give no meaning to the NRCB’s direction that the

detailed plans for development require approval from the Town and the parameters on which the NRCB

relied in determining the project was in the public interest. The Town agrees that to the extent an

application to amend an ASP is consistent with an NRCB approval, Council must approve it; but the

inverse is also true: any matters not dealt with in the NRCB approval are subject to the usual review by

Council, taking into consideration relevant planning and development concerns.

[115] The first question is whether the Three Sisters ASP and the NRCB Approval are “consistent”, i.e.

sufficiently similar, alike, or the same. If the answer is no, then the inquiry is complete; s. 619 does not

apply and imposes no obligations on Council with respect to the Three Sisters ASP. If the answer is yes,

the next question is what “must approve the application to the extent that it complies with the [NRCB

Approval]” means in the context of s. 619. This requires an assessment of what matters have already been

addressed or decided by the NRCB. For those, Council has no discretion to refuse or change the Three

Sisters ASP; however, Council retains authority with respect to matters not addressed by the NRCB.

[116] The Town argues the project before the NRCB was very different from the development proposed

in the ASPs, and the evidence relied upon by the NRCB is 30 years old and may not reflect the current

circumstances. The NRCB Approval was granted in 1992 based on certain assumptions or parameters,

and was premised on development occurring within the next 20 to 30 years. If the parameters relied on by

the NRCB have changed or are no longer reliable, and to the extent development is occurring outside of

the 20 to 30 year time frame contemplated by the NRCB, it cannot be said the issue has been conclusively

determined by the NRCB. Development in the Town did not stand still for the last 30 years. Not only has

the proposed development within the Three Sisters lands changed, so has the development surrounding it.

Section 619 cannot be interpreted in such a way that undermines Council’s responsibility to plan its

communities in a manner which achieves orderly, economical and beneficial development, use of land

and patterns of human development and maintains and improves the quality of the physical environment.

This is the reason subdivision approvals must be endorsed within one year and most development permits

require commencement of construction within 12 months. It is not good planning to have an approved

subdivision or development sitting on the shelf indefinitely when changes to surrounding uses, demand

for particular uses and servicing may change.

[117] The NRCB Approval is based on now 30-year-old social, economic and environmental evidence,

which are the three key areas for consideration by the NRCB in determining if a proposed development is

in the public interest, including demand for golf courses, hotels and residential development, population

projections and environmental policies. The evidence submitted by Three Sisters and relied upon by the

NRCB may not be accurate or suitable today.

[118] Consistency with the NRCB Approval requires consistency in all respects, including the

recognition by the NRCB that residents would have their opportunity to be heard at the municipal level

and to completely reject the project approved by the NRCB. The NRCB Approval expressly preserved

municipal discretion in section 7 of the NRCB Approval, stating it has no desire to see the interest of the

local residents and stakeholders thwarted by sterilizing the effectiveness of the public process in local

planning matters. The NRCB also recognized that it could approve the project but that the Applicant may

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not be successful in developing the parts of the project owing to failure to receive approval from the

Town for more detailed plans for development in such areas.

.

[119] A number of the conditions in the NRCB Approval also recognize and preserve the discretion of

the Town. It allowed for changes to the design of the area north of Wind Valley, detailed timing and

specific land uses and population densities, details of the locations of community services, transportation

routes and public utilities for the Bow Valley portion of the project with the approval of the Town.

[120] The NRCB chose not to address matters it considered too detailed to be part of its process,

because residents would be able to raise those issues during the planning process. If residents were

precluded from raising these issues at the planning stage by s. 619, the public would be deprived of their

opportunity. It would be inequitable for TSMVPL to take the position it has received a high-level

approval which now permits them to simply change the details as they see fit, given the NRCB expressly

preserved the right of the local planning authority to refuse the project based on those details. The Town

argued that the NRCB’s direction that the detailed timing, specific land uses and population densities and

the location and design densities of community services, transportation routes and public utilities may be

changed with the approval of the Town means, in effect, that these aspects of the project may only be

changed with the approval of the Town.

SUMMARY OF THE APPELLANT’S (TSMVPL) POSITION

[121] TSMVPL presented a detailed section-by-section comparison of the Three Sisters ASP and the

NRCB Approval and argued this analysis is appropriate to determine consistency. The reasons the Town

identified for rejecting the Three Sisters ASP are not within areas the NRCB expressly reserved to the

municipality’s authority. The Town’s failure at the public hearing to comply with s. 619(4) resulted in

Council rejecting the ASPs for reasons outside their jurisdiction. The Town is required to approve the

Three Sisters ASP to the extent it is consistent with the NRCB Approval. The NRCB Approval and s. 619

of the Act limit the Town’s jurisdiction to refuse the Three Sisters ASP to circumstances where the Town

has determined inconsistency between the Three Sisters ASP and the NRCB Approval or within areas

specifically reserved to the Town by the NRCB.

[122] In the Reasons for Decision, the NRCB reserved the following matters to its own jurisdiction:

a. Overall structure of the development;

b. Phasing of the project;

c. Land uses;

d. General location of open spaces;

e. Density ranges;

f. General location of major transportation routes and public utilities;

g. Constraints due to undermining;

h. Constraints due to environmental and social effects; and

i. Location of wildlife corridors and buffer zones.

[123] TSMVPL argued the Town has no jurisdiction to refuse the ASP for these matters, unless the

Three Sisters ASP is inconsistent with the NRCB Approval. The NRCB reserved only design guidelines

and architectural controls for the Town’s independent planning jurisdiction, and granted certainty to the

applicant for all of the matters listed. The only changes the Town could grant to the items approved by the

NRCB would be to increase the development rights of the applicant; it cannot decrease them. The NRCB

granted the applicant the development rights provided for in the NRCB Approval, and left flexibility for

changes to certain details to be approved by the Town.

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[124] The Town has attempted to characterize the authority reserved to it by the NRCB broadly, by

arguing the NRCB authorized the Town to deny the project on the basis of the flexibility granted subject

to Town approval. However, this characterization is not correct. The NRCB Approval contemplated the

Town allowing more than what the NRCB approved, but does not allow the Town to approve less.

FINDINGS

1. If the Three Sisters ASP is consistent with the NRCB Approval, the Town does not have the

authority to deny it.

2. The NRCB Approval did not specify a time after which the approval was no longer valid.

REASONS

[125] The NRCB Approval stated that the project was approved, but that certain details could be

changed with the approval of the Town. This latitude does not allow the Town 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.

[126] The LPRT agrees the Act provides for certain approvals to be of limited duration, and such

approvals will expire if development does not commence during the requisite time period. The NRCB

Approval had no such provision, nor does the legislation impose any such time limit. While it was

anticipated that development would commence within a 20 to 30 year time frame, this timeframe was not

a stated requirement. Although circumstances can and do change over three decades, this fact does not

imply the elapsed time authorizes the Town to deny the application if it is consistent with the NRCB

Approval.

Issue 2 – Fiscal Impact on the Town

SUMMARY OF THE APPELLANT’S (TSMVPL) POSITION

[127] P. Shewchuk of Nichols Applied Management Inc. testified with respect to the Three Sisters

Mountain Village Municipal Fiscal Impact Assessment (MFIA) prepared in October 2020 in support of

the ASP applications. The purpose of the MFIA was to assess the fiscal impacts of the two ASPs on the

Town and its existing ratepayers. At the request of the Town, during the preparation of the report, the two

ASPs were considered together.

[128] The Town’s assessment base is currently 13% non-residential, a decrease from approximately

22% in 2000. The MFIA listed the Town’s 2019 mill rates (the last full year before the analysis), which

ranged from 2.36 for residential and vacant services, 6.84 for tourist homes, and 7.58 for non-residential

and machinery and equipment. Using 2019 as a base year, the budget balancing mill rate would be 12.6

percent lower following full build-out of both ASPs. The analysis developed a financial model of the

Town and then forecast the revenues and expenditures, including capital related to growth resulting from

the project. The projected revenue deficiencies were linked with the anticipated assessment base to

calculate budget balancing mill rates, simulating the budgeting process of a municipality. The analysis

then determined if the budget balancing mill rates are above or below those in the base year. If the mill

rates are lower, the project would be said to have a positive fiscal impact on the Town.

[129] During preparation of the MFIA, the Town had input and questions regarding assumptions. That

feedback resulted in two key modifications to the report: the evaluation of the minimum design scenario,

and a break-even analysis. In the maximum and minimum design scenarios, the non-residential

assessment could be reduced by approximately 31 and 35 percent respectively and still have a neutral

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fiscal impact on the Town. This suggests the analysis is robust - a small change in the amount of non-

residential assessment does not fundamentally alter the outcome of the study.

[130] After the MFIA was complete, the Town requested the analysis be split for the two ASPs. The

result was added to the appendix as tables A-7 and A-8. It shows the revenues over expenditures for the

Three Sisters ASP at $2,100,000 and the Smith Creek ASP with a shortfall of $50,000 for an approximate

$2 million net positive; however, to fully analyze the two ASPs in isolation, it would be necessary for the

Town to provide parsed capital and operating items, which could not be done in the time available. Mr.

Shewchuk also noted that these figures are occurring at a budget balancing mill rate that is 12.6 percent

below the 2019 rate, which indicates a positive impact across the municipality.

[131] Mr. Shewchuk noted that the fiscal analysis did not include the impact of the commercial

development at Stewart Creek which is currently being developed. Overall, the development of the two

ASPs will have a positive impact on the Town at full build-out.

SUMMARY OF TOWN’S POSITION

[132] The Town’s MDP aspires to a 33/66 non-residential/residential split, and the Three Sisters ASP

does not achieve this. Under the 1994 Implementation Plan, the Resort Centre should have proceeded as

the second phase, and the Resort Centre ASP has been in place since 2004. There has been significant

commercial development in the Town, but very little of that has been on the TSMVPL lands. Land can be

identified as commercial in an ASP and districted in the LUB; however, this does not mean it will be

developed. The commercial development in the Stewart Creek ASP, approved in 2004, is only now

starting to be constructed.

[133] The Town noted that TSMVPL included tourist homes as commercial because they have

commercial-like assessment, while the Town categorized tourist homes as residential because they are a

dwelling unit, and the owner can elect use them for personal use and be taxed as residential. The NRCB

approval contemplated resort accommodation units which could contribute to commercial assessment.

NRCB Approval stated the revenue generation at build-out would exceed any front end infrastructure

costs as well as any ongoing related costs. The approximately $2 million net benefit for the two ASPs is

smaller than anticipated, and accordingly, not consistent with the NRCB Approval.

FINDINGS

3. The fiscal impact of the Three Sisters ASP is consistent with the NRCB Approval.

REASONS

[134] The LPRT understands the Town’s concerns with categorizing tourist homes as commercial when

the owners can elect to use them as personal dwelling units and be taxed at the residential rate. The LPRT

notes that tax rates are within the power of the Town to modify pursuant to s. 297 of the Act; therefore, it

would appear that the Town has the ability to resolve this concern. Further, there was no alternate analysis

provided by the Town. Accordingly, the LPRT accepts the conclusion of the MFIA that the two ASPs

will provide a net benefit to the Town.

[135] The NRCB concluded the required front end and ongoing infrastructure and service costs would

be covered by the projected economic benefits if the project as proposed - or as reflected in any of the

alternative scenarios - proceeded through to conclusion, and if demand for the facilities materialized more

or less as projected. Further, the revenues are based on a mill rate 12.6% lower than 2019 mill rates. If the

mill rates were to remain unchanged, the net benefit would be much greater.

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Issue 3 – Phasing

[136] The land use concept for

the Three Sisters ASP consists of

a Village Centre with cafes,

restaurants, retail, and markets as

well as offices, tourist homes and

complementary uses. It will have

pedestrian streets around a central

plaza fronting a landmark hotel.

The Hotel and Spa District will

have tourism and recreational uses

with a focus on health and

wellness modelled after boutique

hotels and destination spas in

other resort locations. The

Innovation District provides for

creative manufacturing with

flexible, market-style light

industrial and office spaces. The

Indoor Recreation Area will

provide space for a variety of

indoor recreational pursuits and

entertainment opportunities that

could include a movie theatre and

a performing arts centre.

Residential uses are “missing

middle” forms such as

townhouses, low and mid-rise

apartments to provide diverse

housing choices and generate

enough density to support transit

and local commercial. Tourist

homes will be located in buildings

along collector streets.

[137] The development phasing

in the ASP proposes the first

phase to be residential, with the

second phase consisting of

residential and the Hotel and Spa

District. The majority of the

Village Centre and surrounding

residential and tourist homes are

the third phase, with the Innovation District and the Indoor Recreation Area and additional residential in

the fourth phase. The remaining residential, in the fifth phase, will not proceed until the Village Centre is

generally complete. The open space Resort Recreational Amenity and activity hubs will be in the same

phases as the adjoining lands.

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SUMMARY OF THE TOWN’S POSITION

[138] The Town had passed several amendments to the Three Sisters ASP at second reading, including

an amendment to the phasing map, to ensure all commercial development would be complete prior to the

majority of the residential development. This would ensure that the commercial development proceeds. In

the 30 years since the NRCB Approval, the Three Sisters lands have been mostly residential, over 98% of

the current assessed value with three commercial developments and 2500 residential units. The residential

is dramatically outpacing commercial development, and the proposed phasing starts with even more

residential development.

[139] The Town argued it has jurisdiction to change the phasing. The NRCB Approval stated that the

detailed timing and the specific land uses and population densities may be changed with the approval of

the Town of Canmore.

SUMMARY OF APPELLANT’S (TSMVPL) POSITION

[140] A Commercial Needs Assessment was conducted in June 2020 to fulfill the Town’s technical

report requirement for the two ASPs and to help TSMVPL understand the impacts of additional

commercial development in the plan areas. The report concluded that the subject land is located a distance

from Canmore's Town Centre so as to need and support its own distinct critical mass of retail and service

commercial uses, suitably positioned and scaled. The build out of the residential units and associated

population are key to providing the market support needed. The Gateway development was included in

the Stewart Creek ASP but only has just started construction, as there was not enough commercial market

demand to build it previously. The population to support it must exist. The Town desires to bring on

commercial as quickly as possible, but the financing and market demand aspects require it to be viable

and supportable in the marketplace.

FINDINGS

[141] The proposed phasing is consistent with the NRCB Approval. Further, it is not feasible and is

poor planning practice to require commercial space to be built before market demand exists to support it.

REASONS

[142] The LPRT agrees that a certain level of population is necessary before commercial uses are

viable. It is of no benefit to the Town to have vacant commercial development. The 1994 Implementation

Plan referenced phasing only with respect to servicing:

Phasing of development will generally be in a contiguous manner, following utility

servicing corridors in a west to east direction. The time frame is estimated to be 20 years

or greater.

[143] There was no indication in the NRCB Approval or the 1994 Implementation Plan that commercial

uses would have to be constructed first.

Issue 4 – Housing

[144] The NRCB Approval referenced total number of dwelling units, unit density and population. In

the description of the Proposed Development, it stated:

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At build out, some 15,000 persons are expected to be added to the total population of the

Town of Canmore. along with an additional 2,425 hotel rooms, and 6,085 housing units,

including 700 staff housing units.

[145] The NRCB Approval also referenced the need for affordable housing throughout the document.

The project description quoted the applicant as stating:

… affordable housing is included in the proposal in order to ease existing and long-term

housing problems anticipated in the Canmore area. It was stated that low and modest cost

housing would make up over 60 percent of all proposed residential units. Three Sisters

would require hotel operators to provide accommodation for 50 percent of their staff

close to the facility. Additional rental and permanent housing for staff would be

distributed throughout the development.

[146] In the section discussing the economic and social effects of the proposed project, the NRCB noted

the representations of the applicant and presenters at the public hearing and made recommendations in its

Decision Report with respect to affordable housing.

[147] The Three Sisters Mountain Village project (TSMV), comprising both Smith Creek and Three

Sisters ASP areas, proposes 20% attainable units (1,068 of 5,450 total) with 33% in the Smith Creek ASP

(580 of 1,750 units) and 13% in the Three Sisters ASP (488 of 3,700 units). Affordable forms of housing

in the Three Sisters ASP consists of the following:

- 10% Affordable Ownership/Rental – This refers to housing available to Town residents at below-

market purchase prices/rental rates. Currently restricted by occupancy, resale price, buyer or

tenant eligibility criteria and managed by Canmore Community Housing (CCH) or another

agency. A minimum of 10% of all multi-residential units within Three Sisters Village shall be

provided as affordable housing, with the ownership/rental mix to be based on need. The amount

of affordable housing may be increased based on bonusing

- 3% Employee Housing (EH) – The ASP has a requirement for one EH bedroom per 6 to 10 units

of visitor accommodation (based on size of development) with a maximum of 6 EH bedrooms

with shared access bathroom and kitchen facilities per residential unit.

[148] The building forms in the residential area are predominantly townhomes, stacked townhomes,

apartments and seniors housing with the potential for semi-detached dwellings to respond to mountainous

terrain. Townhouses and semi-detached will be enabled for accessory dwelling units, either at initial

development or designed as “suite-ready” with exits, fire separations and roughed in services to allow

later implementation at minimal cost. The Three Sisters ASP also encourages entry-level housing, which

includes ownership and rental opportunities provided at the lowest market cost without any direct or

indirect subsidies to an occupant. This provides alternatives for those residents whose income exceeds the

maximum level established for affordable housing under existing programs.

SUMMARY OF THE TOWN’S POSITION

[149] The Town argued that the overall housing provided exceeds the NRCB Approval. The NRCB

Approval contemplated 6,085 dwelling units, while the total in the two ASPs along with units built to date

will be 6,632 to 9,782. This translates to a total population increase of 13,992 to 20,817 compared to the

15,000 in the NRCB Approval. Unit density in the Three Sisters ASP is 15 to 30 units per hectare

compared to 6 in the NRCB approval, mostly due to removal of the golf course.

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[150] Tourist homes are included in the Town’s calculation as they are ambiguous and unpredictable -

they have some commercial and residential aspects. The Town’s concerns with respect to their inclusion

in the Three Sisters ASP is what they actually are used for, and the unpredictability of their actual

contribution to assessment. While tourist homes play an important role in development in the Town, and

there is a lot of demand, they are clearly not a pure commercial use. The Town submits there is too much

residential already built and proposed.

[151] Two witnesses, Mr. A. Fish, senior planner and Ms. L. Miller, Manager of Planning, testified

regarding consistency of housing in the ASPs with the NRCB Approval. Lack of affordable housing is

one of the biggest challenges in the Town. The MDP has direction to create an action plan to achieve 20%

of housing as affordable in the community, especially in future growth areas. The Town had requested

20% of the housing units in the ASP to be perpetually affordable. This is greater than what was requested

in the recent past for other ASPs, but the Town argued that the other developments were not the subject of

the NRCB Approval in which 50 to 60% affordable dwelling units had been identified in the project

description.

[152] The Town argued that the representations of the applicant with respect to affordable housing were

not only for lower-cost forms of housing, as suggested by TSMVPL. The NRCB Decision Report quoted

R. Melchin, President of TSGR, stating: “… Three Sisters undertook to ensure a balanced supply of

affordable housing to assist Canmore with this recognized need.”

[153] The transcript excerpts from the NRCB hearing that was accepted into evidence by the LPRT

indicate that TSGR made representations with respect to working with the Town to provide affordable

housing:

R. Melchin: The most fundamental commitment that I can make is that we will dedicate a

significant amount of land to lower-income housing if our project is approved. We are

prepared to have the Town, if they have a mind to, to put that into their public land use

bylaw by zoning.

… The Town, in fact, has a Housing Authority, and it may choose to increase the number

of units that Housing Authority manages. If they were to make a request of us that some

of our lands be made available to that authority, that would be fine. ... There are

compensations that we could work out between us. For example, they demand of us

acreage assessments or capital up front or perhaps some mitigation on operating costs.

All of these things we think it is fair to sit down and trade. So there is an opportunity for

the Town to take a position that they have a need, and if they wish, we would be prepared

to enter into such an agreement.

[154] The Town’s experience is that accessory dwelling units are not offered for rent, they often remain

unused. The suite-ready accessory dwelling units will not get developed to provide affordable housing

and also do not satisfy this commitment. The Town argued that the affordable housing proposed by

TSMVPL is not consistent with the representations to the NRCB that informed the NRCB Approval.

SUMMARY OF APPELLANT’S (TSMVPL) POSITION

[155] TSMVPL argued that the Town’s characterization of overall number of housing units proposed is

a range where the higher number depends on getting the Bonusing Incentive, which is entirely within the

power of Council to accept or reject at the conceptual scheme stage of development. The Town’s

calculation also includes Tourist Homes as dwelling units instead of Visitor Accommodation. If the

Tourist Homes are not included in the dwelling unit count, the lower end of the range (without bonusing)

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is 6,105 - a negligible difference from the 6,085 in the NRCB Approval. The unit density of 6 units per

hectare in the NRCB approval is based on the total land area, including a significant amount that was

included in the wildlife corridors. TSMVPL argued that the Tourist Homes should not be included in the

dwelling unit count, and that the overall housing provided is consistent with the NRCB Approval.

[156] I. Gray of Nichols Applied Management prepared the Three Sisters Mountain Village Socio-

Economic Impact Assessment (SEIA) in October 2020 to support both of the ASP applications, to

identify if and to what degree the development of TSMV may have on the socio-economic fabric of the

community. He stated that that the direction in the ASPs with respect to affordable housing was informed

by the SEIA and the 2019 Bow Valley Region Housing Needs Assessment. Findings from the SEIA

focused on the need to provide a range of market and below-market housing options across the housing

spectrum to create a more inclusive community. In the home ownership market, options such as

townhouses and multi-residential units are the most attainable forms of market housing.

[157] TSMVPL argued that the NRCB discussion with respect to affordable housing related to

affordable forms of housing that could be built at lower cost, described as houses on less than 50 foot lots

or multi-family units, not a control on the market price of housing as the Town suggests. The NRCB

noted that while the issue of affordable housing is a problem throughout society it did not believe that any

one proponent for one project can be expected to solve such problems. The NRCB recommendation was

for TSGR to commit to participate in the development of an affordable housing plan.

[158] Perpetually affordable housing (PAH), as the Town uses the term, was not included in the NRCB

Approval, and the housing proposed for the Three Sisters ASP is above and beyond what the NRCB

required. A minimum of 10% of all residential units in the Three Sisters ASP will be provided as PAH.

Residential units for the purpose of this policy excludes tourist homes, visitor accommodation and

employee housing. The NRCB Approval referenced employee housing requirement for 50% of direct

resort employees, and the ASP policies require employee housing for visitor accommodation uses within

the plan area, at a rate of 1 bedroom per 6 to 10 units of visitor accommodation, with a maximum of 6

employee housing bedrooms with a shared access bathroom and kitchen facilities per employee housing

unit. This will result in 347 to 470 employee housing beds.

FINDINGS

4. The references in the NRCB Approval to the Applicant committing to providing affordable

housing means lower-cost forms of housing, not below-market housing.

5. The amount and nature of housing, including affordable housing, contemplated in the Three

Sisters ASP is consistent with the NRCB Approval.

REASONS

[159] The NRCB was of the opinion that providing lower cost forms of housing would contribute to

improved affordability. The meaning of affordable housing has evolved in the years since the NRCB

Approval was issued; however, it is clear that the NRCB did not intend for the project to provide 50 to

60% affordable housing in accordance with current perceptions to mean providing below-market housing.

The dwelling unit mix proposed for the Three Sisters ASP, predominantly multi-family units, satisfies the

intent to provide lower-cost forms of housing. Further, it would be expected that increased supply will

ease pressure on housing prices.

[160] The LPRT notes that the NRCB was alive to the issue of affordable housing, and addresses it at

numerous points in the decision report:

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The Board believes that the question of affordable housing is a critical element in any

assessment of socio-economic issues. If housing problems exist, efforts to address and

mitigate other social problems may be somewhat pointless. Similarly, if there are not

housing problems, other social shortcomings may not be as serious as they would

otherwise be.

At the same time, the Board recognizes that the issue of affordable housing is a problem

throughout society and does not believe that any one proponent for one project can be

expected to solve such problems. A fair test is whether a proponent has adequately

provided for the matter in its proposal, and whether the proponent is prepared to work

with others on an ongoing basis in an attempt to ensure that, as a minimum, the problem

would not be made more serious.

[161] The LPRT considered the transcript excerpts, and it is clear that there were commitments made at

the hearing with respect to the affordability issue, but the LPRT gives more weight to what was included

in the NRCB’s report, which stated:

A number of specific commitments were also made by the President of Three Sisters, Mr.

Richard Melchin. ... Three Sisters undertook to ensure a balanced supply of affordable

housing to assist Canmore with this recognized need.

[162] The policies for affordable housing contained in the Three Sisters ASP are above the specific

requirements of the NRCB Approval and honours the commitments made. The accessory dwelling units

and encouragement of entry-level housing further improves affordability. Overall, the housing provisions

in the Three Sisters ASP are consistent with the NRCB Approval.

Issue 5 – Wildlife Corridor

[163] The NRCB approval was clear from Condition 14 and the refusal of development in the Wind

Valley that the preservation of wildlife movements was an important aspect of the approval. Condition 14

stated:

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.

[164] In February 1998, AEP approved the wildlife corridor along a portion of the southern and western

boundary of TSGR land. In May 2003, AEP approved a revised corridor alignment on a western portion

of the 1998 corridor with a 35m-wide conservation easement agreed to as a buffer around the west and

south sides of lands outside the corridor to provide for fire thinning and a potential public trail. The

delineation of the wildlife corridor and the conservation easement was included in the 2004 Resort Centre

ASP.

[165] In January 2017 TSMVPL applied for approval from AEP for the remaining portion of the

wildlife corridor to the east of the portion approved in 2003. The application was supported by reports by

Golder Associates, including the initial report and two reports in response to AEP requests for additional

information. AEP reviewed over 400 letters from the public and attended two public information sessions.

In June 2018 AEP determined that the proposal was unsatisfactory and specified two areas of deficiency:

the width of the proposed wildlife corridor at the eastern end of the Smith Creek property, and the width

of the Stewart Creek Across Valley wildlife corridor. TSMVPL and AEP worked to identify a suitable

corridor, taking into account comments and feedback from the public, additional data and analysis since

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2017 regarding wildlife use, and more recent research. On January 28, 2020 TSMVPL submitted a

proposal along with an evaluation by Golder Associates for a revised wildlife corridor.

[166] AEP issued its decision on February 26, 2020 approving the proposal. The decision noted the

NRCB Approval had also required TSMVPL to prepare a wildlife aversive conditioning plan to the

satisfaction of AEP; however, the Wildlife Act generally prohibits threatening or harassing wildlife.

Instead of undertaking wildlife aversive conditioning, TSMVPL proposed developing a Wildlife Human

Interaction Prevention Plan (WHIPP). The WHIPP was approved in February 1999 and revised with

further approval from AEP in September 2004. Since that time, many of the initiatives overlap with

reports regarding the understanding of co-existence with wildlife in the Bow Valley, and Town bylaws for

managing human-wildlife interaction. AEP encourages TSMVPL to be involved in these initiatives and is

satisfied that TSMVPL has complied with Condition 14 regarding a wildlife aversive conditioning plan.

[167] With respect to developing a detailed design for wildlife movement corridors, AEP’s review was

informed, in part, by Appendix D of the NRCB Approval, Recommendations to Alberta Forestry, Lands

and Wildlife:

It is recommended to Alberta Forestry, Lands and Wildlife that locations for wildlife

corridors be legally designated and that in determining their locations and widths,

primary corridors should not be narrower than 350 m except in unusual circumstances,

that widths and locations be reviewed with the full range of species that may make use of

them in mind, that corridors be located to allow movement across adjacent properties,

that measures such as bundling road, utility line and pathway crossings be adopted, and

that corridors correspond with known movement routes of the animals.

[168] AEP noted the primary purpose of the wildlife corridor as identified in the NRCB Approval is to

ensure that the development would be built in a way that enables wildlife movement along the valley as a

primary goal (east to west) and across the valley as a secondary goal (north to south). Having regard to

the NRCB Approval and relevant scientific literature, AEP determined that a wildlife corridor will

generally be considered satisfactory if it can fulfill the following purposes in the Bow Valley:

- Allow wildlife to access important seasonal habitats in order to meet year round life

requirements within the Bow Valley;

- Reduce the potential for negative wildlife/human conflicts by providing safe movement

options around developed portions of the valley, thereby minimizing wildlife movement

through human development within the Bow Valley.

- Delineate boundaries of Bow Valley's wildlife corridors.

- Allow for dispersal of young from their natal areas to other areas in order to establish

new home ranges

[169] AEP developed wildlife corridor principles and criteria to evaluate the TSMVPL proposal from

scientific literature, guiding documents and expert opinion as follows:

- Corridors are designed to provide movement for wildlife, while enabling human

development to proceed which is in keeping with the 1992 NRCB decision.

- Corridors are designed to maintain the most direct, unimpeded route, while avoiding

human disturbance.

- Corridors that are shorter are more effective than longer corridors as wildlife are able to

[move] efficiently from one habitat patch to the next. Longer corridors should generally

be wider to provide more efficacy for wildlife movement. Corridors and patches should

not include topographical barriers that would block movement and should be designed for

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year-round function and not be hindered by adverse conditions such as deep snow,

impermeable vegetation, larger waterways.

- Where possible, corridors should include existing natural habitat features, such as

wetlands, licks, or other known wildlife sites.

- The optimal corridor width is a function of how animals respond to the boundary of the

corridor. The NRCB recommended a 350m minimum width for primary corridors. Wider

corridors should be better than narrower corridors but how much wider has not been

clearly demonstrated by science. Wolf behavioural response to disturbance can be used to

guide corridor width that should accommodate other species. Wolf behavior responded to

human activity at 400m, therefore, an average corridor width of 600m should ensure

functioning corridor effectiveness of at least 50%. This also indicates that corridors less

than 400m wide may not function effectively for wildlife movement for all species, and

400m was a desired minimum width for corridors.

- In some cases, it may not be possible to achieve the desired average widths, in which case

functionality will be maintained through other management approaches such as human

use management and habitat enhancements.

[170] AEP determined that the January 28, 2020 TSMV Wildlife Corridor proposal is satisfactory to

AEP, as required by Condition 14 of the NRCB Approval, and also made a number of additional

recommendations to TSMVPL to further support and enhance the functionality of the proposed corridor

and address potential issues with respect to human-wildlife interaction in the Bow Valley. TSMVPL

confirmed that they accept these recommendations and committed in writing to implementing each of the

recommendations within the next 24 months. AEP and TSMVPL agreed that if the recommendations

cannot be successfully completed within this timeframe, they will continue to work collaboratively to

bring them to completion as quickly as possible.

SUMMARY OF THE Y2Y’S POSITION

[171] Y2Y presented testimony from Dr. H. Young, evidence and argument, and requested that it be

applied to both appeals. Y2Y was created in 1993, shortly after the NRCB Approval, when a group of

conservationists and scientists met to discuss the problem of wildlife habitat fragmentation. Connecting

habitat along the spine of the Rocky Mountains was recognized as the best way to ensure that populations

of large mammal species would continue to thrive into the future. Conservation on a larger, continental

scale led to the Y2Y vision of an interconnected system of wildlife habitat stretching from Yellowstone

National Park in the United States to the Yukon in Canada's north. This vision brought Y2Y to seek

intervenor status in the two appeals.

[172] At the time of the NRCB Approval, the Town had a population of 6,000 which has grown to

16,000 in 2021. The residential development proposed in the two ASPs will double the current population

once development is complete. The growth, location and popularity present unique planning challenges,

the largest of which is environmental constraints with respect to preserving effective wildlife habitat and

connectivity through this important region. Gravel bed river floodplains such as that of the Bow River are

the primary wildlife movement corridors in the Rocky Mountains, but the Town and Dead Man's Flats are

built on the floodplain of the Bow River and have taken up the vast majority of terrain that is suitable for

wildlife movement.

[173] Wildlife movement corridors were a new area of concern in 1992; however, the NRCB concluded

that tourism and recreation projects would have an unacceptable impact on wildlife unless effective

wildlife movement corridors were retained. The NRCB required that Three Sisters retain corridors in as

undeveloped a state as possible to allow wildlife movements to continue, and that the location and width

of the corridors be approved by what is now known as Alberta Environment and Parks.

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[174] The AEP approval with respect to wildlife corridors dated February 26, 2020 (AEP Approval) is

not consistent with the NRCB Approval in the following respects:

a. The articulated purpose of a wildlife corridor is not consistent. The NRCB Approval articulates

the purpose of a wildlife corridor designation as retaining corridors in as undeveloped a state as

possible for wildlife movement to continue. In contrast, AEP articulates the purpose as providing

for the movement of wildlife, while enabling human development to proceed. The NRCB

Approval considers the design of a wildlife movement corridor from the perspective of existing

wildlife needs, while the AEP Approval considers the design of a wildlife movement corridor

from the perspective of human interests. Development comes first, and the needs of wildlife are

addressed to the extent reasonably possible. The AEP corridor approval speaks of incorporating

flat and gently sloped terrain (the movement terrain that wildlife prefer and use) as is reasonably

possible. The addition of the adjective "reasonably" that is absent in the NRCB decision indicates

it is acceptable for the corridor design to compromise the needs of wildlife in the face of

development interests.

b. The terrain of the wildlife corridor is not consistent. It is well established that wildlife movements

happen primarily on flatter slopes rather than sloped terrain; therefore, when the NRCB Approval

speaks of retaining movement corridors in as undeveloped a state as possible, it can only mean

development must retain undeveloped flat terrain in existing movement corridors. In contrast, the

AEP Approval is clearly framed around the principle of no blocks and no absolute barriers,

fundamentally different from preserving existing movement for the full range of species. The

result is that the AEP Approval has tight pinch points and includes terrain that most species

actively avoid. Y2Y presented maps that overlay topographical features onto the development

footprint, showing that the proposed development occupies what remains of the flat terrain used

by wildlife to move along the Bow Valley on the south side of Hwy 1. TSMVLP’s wildlife

expert, Dr. K. Knopff, stated that an effective wildlife corridor was defined as one that permits

movement of wildlife, but the NRCB Approval requires that the corridor meets the needs of all

species expected to use it, and that the corridor follows the known movement patterns.

c. The suite and needs of species considered are not consistent. The NRCB decision clearly

mentions the need to accommodate the needs of a full range of species in corridor design,

including elk, bighorn sheep, grizzly bears, black bears, wolves, cougars, wolverines and other

mammals not as prevalent in the area. In contrast, the AEP Approval only makes reference to

wolves, and assumes they are a proxy species for which the behavioral response can be expected

to reflect those other species. This proxy assumption is not made by the NRCB, is unsubstantiated

in the AEP Approval, and is not scientifically supported generally. The NRCB decision also

places significant importance on the need for mitigation measures to address the impacts of the

project on grizzly bears while the AEP Approval makes no mention of grizzly bears, particularly

noteworthy given that AEP designated the grizzly bear as a threatened species in 2010. AEP’s

Grizzly Bear Recovery Plan prioritizes recovery actions in major transportation corridors like

Hwy 1 through the Bow Valley because it is widely known and understood that grizzly bear

mortality in the Bow Valley is correlated with human activity and residential development. The

Grizzly Bear Recovery Plan emphasizes the need for cooperation and coordination among

responsible provincial and municipal agencies to ensure that grizzly bear movement needs are

considered in development decisions.

d. The regional context is not consistent. The NRCB Approval lists Banff National Park, the Bow

Corridor, the Spray Valley and the Kananaskis Valley as the regional study area to be considered

in future studies and in decision-making concerning the project. In contrast, the AEP wildlife

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corridor describes a much narrower geography: the existing 1998 wildlife corridor east of Smith

Creek with the existing Wind Valley Habitat Patch in the west, and the existing Bow Flats

Habitat Patch through the G8 Legacy wildlife underpass at Dead Man's Flats - a clear

inconsistency between the two documents.

[175] Y2Y argued that the wildlife fencing proposed, for the purposes of managing human-wildlife

interaction, was untested and should not be needed in order to make the development work. The existing

undeveloped wildlife habitat in the Smith Creek and Three Sisters ASPs is the best connectivity habitat of

what is left on the south side of the Bow Valley. The question is how to maintain that connectivity, given

current knowledge of wildlife needs, movement and behavioral responses to human activity, with a

housing project of the size proposed. Y2Y argues that this context was not considered by the NRCB 30

years ago, whereas this context was considered by the Town and informed its decision to deny the ASPs.

[176] As instructed, Y2Y’s submissions focused on the consistency of the 2020 AEP approval with the

NRCB Approval, which related to the wildlife corridor adjacent to the Smith Creek plan area. Y2Y’s

submission specific to the Three Sisters ASP was a written submission from J. Jorgenson, a retired

wildlife biologist who had been employed by AEP and predecessor departments at the provincial

government until 2015. He wrote that the 2003 AEP approval of the modified corridor alignment had a

golf course as the adjacent land use, and may have been different had another use been proposed. Golf

course development adjacent to the Along Valley corridor has been an important planning feature - it

provides an important buffer between human development and the corridor. While human activity occurs

on golf courses, it is seasonal, limited to golfers and predictable; thus, more adaptable to by wildlife than

unregulated, unpredictable human activity such as hiking, biking, dog walking. The golf course in the

2004 Resort Centre ASP would provide similar benefits as the Stewart Creek golf course does to the

Along Valley corridor further east and the Silvertip golf course on the north side of the valley.

SUMMARY OF TOWN’S POSITION

[177] The Town did not have a position on the wildlife corridor proposed, but provided background

information. Mr. Fish was involved in the preparation of the Resort Centre and Stewart Creek ASPs in

2003 and stated that the 2002 Golder report spoke of a soft edge to the wildlife corridor. The approach in

the mid-2000s considered a golf course to provide a transition between intensively developed and natural

areas, and the Stewart Creek Golf Course is part of the approved wildlife corridor.

SUMMARY OF APPELLANT’S (TSMVPL) POSITION

[178] TSMVPL submitted that the NRCB expressly imposed a condition dealing with wildlife

movement and a wildlife aversive conditioning plan, and required the proponent to obtain AEP approval.

The NRCB delegated to AEP the power to assess and determine wildlife corridors, and TSMVPL

obtained the AEP Approval.

[179] Dr. K. Knopff of Golder Associates had prepared the application for the wildlife corridor

approval in the area of the Smith Creek ASP. He described the recommendations in the NRCB Approval,

the requirements of AEP and the evaluation of the proposed wildlife corridor to obtain the AEP Approval.

Dr. Knopff noted the alignment of the wildlife corridor that had previously been approved, and the

proposed corridor.

[180] Dr. Knopff agreed that many wildlife species select habitats with gentle slopes, especially during

winter; therefore, slope has been identified as a surrogate for corridor efficacy, using a threshold of 25

degrees. Over 89% of the proposed wildlife corridors consist of areas with slopes less than 25 degrees,

with 11% consisting of small patches of isolated and discontinuous slopes with no substantial cliffs or

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other topographical features that would create barriers to movement. In this case, slope as a surrogate for

corridor efficacy is less important because substantial wildlife movement data are available. Golder’s

evaluation focused primarily on determining whether wildlife data identified movement routes in the

proposed wildlife corridors, using evidence from various data sources such as snow tracking, telemetry,

GPS collars, and remote cameras. The evidence indicates regularly used movement routes for a wide

range of wildlife species such as elk, mule deer, white-tailed deer, black bears, grizzly bears, lynx,

cougars, wolves through areas of discontinuous slopes great than 25 degrees, used in all seasons when the

particular wildlife species are active.

[181] The proposed changes to the Along Valley corridor east of the existing approved corridor result

in a defined corridor that exceeds 635 m at its narrowest point. The southern boundary will remain

undeveloped and protected as a provincial park, and, although use declines at higher elevations, wildlife

move through these areas, substantially increasing the effective width of the proposed corridor relative to

those constrained by development on both sides. Several mitigations will be implemented to increase the

effectiveness of the Along Valley wildlife corridor, including habitat enhancements in areas away from

human developments, installing a wildlife fence around the Smith Creek ASP and Three Sisters Village

ASP, and providing education about attractant management and appropriate use of wildlife corridors.

[182] A new alignment of the Stewart Creek Across Valley Corridor is not required for the

development but is a value-added component. It has a minimum width of 401 m and average width of 640

m over its approximately 600 m length. The average width over such a short distance is expected to be

sufficient to maintain wildlife movement and would be an improvement over the currently approved,

narrower Stewart Creek Across Valley Corridor. Development on both sides of the Stewart Creek Across

Valley Corridor will have a wildlife fence, with signage to promote responsible use of the wildlife

corridor by residents. A new wildlife crossing will be installed for the extension of the Three Sister’s

Parkway that will bisect the Stewart Creek Across Valley Corridor. These mitigations are expected to

further improve the functionality of the Stewart Creek Across Valley Corridor and wildlife population

connectivity in the Bow Valley.

[183] The wildlife corridors in the AEP Approval are an improvement over previous proposals.

Wildlife movement is more constrained in a north-south direction than in an east west direction in the

Bow Valley because of the arrangement of development at the valley bottom, the highway and rail line.

The increased width of the Stewart Creek Across Valley corridor, along with an additional crossing

structure at Hwy 1, fencing and crossing structures associated with roads crossing the corridor represents

a substantial improvement over the existing approved Stewart Creek Across Valley Corridor and over the

version of the 2017 proposal.

[184] Along valley movement by wildlife in the Bow Valley remains a substantial concern but is more

easily achieved than across valley movement. The amendments and extensions to the Along Valley

corridor will complete the wildlife corridor network on the south side of Canmore. An evaluation of the

large and diverse set of data available in the area indicates the proposed corridor network is appropriately

located for maintaining wildlife movement between designated wildlife habitat patches in the Bow Valley

around TSMV properties and for maintaining existing regional connections between Kananaskis Country

and Banff Nation Park in the Bow Valley. With appropriate management of human use, the proposed

wildlife corridors are predicted to maintain connectivity at a local spatial scale, maintain the genetic

diversity of wildlife by connecting habitat patches at large spatial scales and to maintain wildlife

movement over the very long term.

[185] TSMVPL argued that the wildlife fence will be effective in mitigating human-wildlife

interactions. It has been used along Hwy 1 for decades, and will control human use of the wildlife

corridor much more effectively than signage. The proposal was accepted by AEP. The corridor in the

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Three Sisters ASP plan area was approved in 2003 when the Resort Centre ASP was adopted, and the golf

course in the Resort Centre ASP was not part of the designated wildlife corridor, unlike the Stewart Creek

Golf course.

[186] On obtaining AEP Approval, Condition 14 was satisfied, and is a full response to Y2Y’s

concerns; however, even on the details, with respect to the four areas of inconsistency alleged by Y2Y,

Dr. Knopff had worked with AEP on the corridor approval, and his evidence should be preferred. Y2Y

made submissions to AEP, knew of AEP’s decision and did not challenge it.

[187] Under these circumstances, TSMVPL argued Y2Y’s submission is a collateral attack on the AEP

Approval. If Y2Y was unhappy with the AEP Approval, the appropriate remedy is judicial review. The

role of the LPRT is to determine the consistency of the ASP against the NRCB approval, and it has no

authority to alter an AEP approval.

FINDINGS

6. The AEP Approval is consistent with the NRCB Approval.

7. The effectiveness of the wildlife corridor in the Three Sisters plan area does not rely on a golf

course as the adjacent use.

REASONS

[188] It is clear that the NRCB had significant concerns with respect to the preservation of wildlife

habitat and movement in the face of development, and to that end refused development in the Wind

Valley; however, it is also clear that the NRCB left the final delineation to AEP. Scientific research and

knowledge with respect to wildlife movements have significantly changed since 1992; however, the AEP

evaluation considered the most recent work and data on wildlife movements. The LPRT is satisfied that

the review by AEP was thorough and diligent. The first proposal in 2018 was found to be deficient and

the revised proposal was determined to be satisfactory. There were also a number of recommendations,

which were agreed to by TSMVPL. The LPRT also notes that general views with respect to human

wildlife interactions have evolved since the NRCB Approval, and the AEP analysis takes this into

account.

[189] With respect to Y2Y’s four areas of inconsistency, it is obvious that no development at all would

best protect existing wildlife habitat and movement; however, the NRCB Approval clearly did allow

development in the Bow Valley. The LPRT finds the words used by the NRCB: “incorporate into its

detailed design, provision for wildlife movement corridors in as undeveloped a state as possible” means

essentially the same thing as the AEP interpretation requiring development to be built in a way that

enables wildlife movement in accordance with certain criteria.

[190] The LPRT accepts that wildlife prefers flat or gently sloped terrain, but Y2Y did not present

compelling evidence that when unavailable, areas of sloped terrain in a wildlife corridor would create an

impediment to wildlife movement. The LPRT accepts the AEP report and the testimony and report of Dr.

Knopff that the discontinuous slopes in the proposed wildlife corridor do not create a barrier. The wildlife

movement data presented in the Golder report considers multiple species as contemplated in the NRCB

Approval. The LPRT considers the regional context to have been necessary to be considered in the early

stages of the project, as the wildlife corridors were being identified. At this stage, only the wildlife

corridor in the east portion of the project remained to be delineated; therefore, the LRPT does not

consider the study area to be inconsistent with the NRCB Approval.

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[191] The NRCB allowed the development subject to provision for wildlife movement corridors in as

undeveloped a state as possible and a wildlife aversive conditioning plan, both satisfactory to AEP. The

condition was satisfied and AEP Approval was granted. The golf course was not part of the 2003 AEP

approval, and Y2Y’s submission that the adjacent golf course factored into the 2003 AEP approval was

unsupported. Y2Y’s views that the proposed wildlife fencing is untested does not align with the

statements in the AEP Approval that acknowledged that fencing has been an effective tool in other areas

of the Bow Valley and in North America. The AEP Approval also noted that subsequent to 1998, wildlife

corridors within golf course lands were thought not to function properly. Accordingly, the LPRT accepts

that current views suggest a soft interface is not desirable and the wildlife exclusionary fencing is

preferred, and that the modification of fencing the previous golf course lands remains consistent with the

NRCB Approval.

Issue 6 – Public Interest

SUMMARY OF STONEY NATIONS’ POSITION

[192] The Stoney Nations were granted limited intervenor status with respect to how the ASPs and

NRCB approval are to be interpreted given changes since 1992 affecting the Stoney Nations – and in

particular how such changes may affect the consistency of these documents. The Stoney Nations do not

challenge the constitutional validity or applicability of the legislation relied upon by the TVSMPL;

however, they argue the LPRT must consider, when interpreting the 1992 NRCB Approval and the two

ASPs, whether they are consistent with the Honour of the Crown and the constitutional obligations owed

to the Stoney Nations pursuant to section 35 of the Constitution Act, 1982.

[193] The Stoney Nations are comprised of the Bearspaw First Nation, Chiniki First Nation and Wesley

First Nation, direct descendants of the Stoney Indian Nation and Tribe who were parties to Treaty No. 7

of 1877, which covers southern Alberta. The Stoney Nations have Indian Reserves in the lands

contemplated by Treaty No. 6 and Treaty No. 7; in addition, they assert both Aboriginal title and rights to

portions of lands within the western half of the province of Alberta. Both the Smith Creek ASP and the

Three Sisters Village ASP lie within this territory. In the spirit of reconciliation, the Stoney Nations were

participants in the 1992 NRCB Approval hearing and the Town’s public hearings for the ASPs.

[194] The Stoney Nations noted that TSMVPL’s submissions did not address how the passage of time

between the 1992 NRCB Approval and the Town’s refusal to adopt the two ASPs may impact the LPRT’s

interpretation of consistency. TSMVPL relies on Love v. Flagstaff (County of) Subdivision and

Development Appeal Board, 2002 ABCA 292, in support of the general proposition that project

proponents should be entitled to develop lands, subject only to an overall greater public interest

precluding development. This decision does not address the Honour of the Crown or Aboriginal interests

protected by s. 35. The Stoney Nations argue that the principles of reconciliation and the Honour of the

Crown recognize that conditions that may benefit the overall general public interest in a proposed

development of lands may not be sufficient to adequately accommodate or compensate the impacted

interests of the Stoney Nations; that is, the Stoney Nations sui generis interests are not the same as the

interests of the general public.

[195] Aboriginal law principles have continued to advance and be refined since 1992 with all levels of

government, boards, tribunals, agencies and project proponents having a significantly greater appreciation

and understanding of what may constitute adequate consultation, as the Crown and First Nations balance

the reconciliation of Aboriginal and Treaty interests with the development of lands. Honour of the Crown

is a constitutional principle which is always at stake in the Crown’s dealings with Aboriginal people.

Honour of the Crown is the principle that the Crown must conduct itself honourably with Aboriginal

peoples, and has long been identified as a key principle in assessing the Crown’s relationship with

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Indigenous peoples. Since 1982 and more recent Supreme Court decisions, it has become more certain

that Honour of Crown is engaged in many situations in the Crown’s dealing with Indigenous groups

where the Crown has an obligation to do something (or not to do something), and not just in situations

where there may be an obligation on the Crown to “consult” with First Nations.

[196] While the 1992 NRCB Approval may have considered the historic component of the Stoney

Nations and recognized past Aboriginal rights and Treaty rights, there is also an implicit requirement that

rights be determined so that the forward-looking goal of reconciliation can be achieved. TSMVPL

requests that the LPRT order the Town to pass the two proposed ASPs, on the basis that the 1992 NRCB

Approval and the two ASPs are in the public interest. However, to assess whether the 1992 NRCB

Approval is in the public interest requires the LPRT to consider whether the NRCB Approval is in breach

of the Stoney Nations constitutionally protected Aboriginal and Treaty rights. If it is, the 1992 NRCB

Approval cannot be said to be in the public interest and there can be no basis on which the LPRT may

order the Town to pass two ASPs that are also not in the public interest. Development of lands for the

public interest does not lessen the impact of the Honour of the Crown, as this principle infuses the

performance of every treaty obligation and stresses the ongoing relationship between the Crown and First

Nations brought on by the need to balance the exercise of treaty rights with development of lands subject

to Treaty.

[197] In AltaLink Management Ltd. v. Alberta (Utilities Commission), 2021 ABCA 3424, the Court of

Appeal provides further guidance on what factors need be considered when assessing the public interest

and reconciliation, and made the point that education and jobs must be a central component of any long-

range plan - the very factor that the NRCB refused to address and include in the 1992 NRCB Approval.

Since the 1992 NRCB Approval, all levels of government, tribunals and project proponents now have the

benefit of the Report of the Royal Commission on Aboriginal Peoples and the Truth and Reconciliation

Commission to help assess whether a project is in the public interest. For example, call to action No. 92

calls on the corporate sector to adopt the United Nations Declaration on the Rights of Indigenous Peoples

as a reconciliation framework to ensure free, prior, and informed consent before proceeding with projects,

as well as ensuring Aboriginal peoples have access to jobs, training and education and ensuring the

Aboriginal communities gain long-term sustainable benefits from development projects.

[198] The NRCB Approval failed to address the Stoney Nations’ s. 35 rights as well as the Crown’s

constitutional obligations owed to the Stoney Nations. Instead of considering whether the Stoney Nations

Aboriginal or Treaty rights and title were potentially impacted by the proposed development, the NRCB

viewed the Stoney Nations role as “historic”, and merely as one of many components of the “overall

public interest”; in addition, it was of the view that the grant of accommodations to the Stoney Nations

would not serve the “the overall Alberta public” interest. In contrast, the views of the NRCB today are

vastly different. The NRCB’s Aboriginal Consultation and Participation Fact Sheet addresses the Crown’s

duty to consult and accommodate, and identifies the principles that guide the NRCB’s assessment of this

duty. This document recognizes that if the NRCB determines that a project is in the public interest,

accommodation measures designed to minimize impacts and respond directly to the concerns raised by

affected Aboriginal peoples must be considered.

[199] There is no evidence that even these minimum guiding principles have been satisfied. As a result,

the LPRT cannot conclude the NRCB Approval fulfills the principle of Honour of the Crown and

reconciliation; therefore, it cannot find that the NRCB Approval is in the public interest.

[200] The Stoney Nations note the NRCB stated it wishes to provide “a degree of certainty to the

Applicant regarding its approval of the general plans but recognizes a need for flexibility” this would be

“a recognition that the developments would take place over a 20 year period and would provide flexibility

to accommodate changing circumstances.” The Stoney Nations argue that this indicates NRCB Approval

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was intended to be amended as necessitated. The statement that the NRCB Approval would provide to the

project proponent only “a degree of certainty” instead of “certainty” is telling, and any assessment of the

consistency between the NRCB Approval and the two ASPs requires an assessment of whether the ASPs

have, in fact, accommodated changing circumstances. A significant change is the parties’ understanding

of the principles of Honour of the Crown and reconciliation of the Stoney Nations Aboriginal and Treaty

rights. Thus, for any ASP to be considered “consistent” and in “compliance” with a “flexible” 1992

NRCB Approval it must address Honour of the Crown and reconcile the proposed development with the

Stoney Nations’ impacted Aboriginal and Treaty rights.

[201] In conclusion, with the passage of time and changing circumstances, the project can no longer be

considered to be in the public interest. Accordingly, the Stoney Nations request the two appeals be

dismissed.

SUMMARY OF NRCB’S POSITION

[202] The LPRT has no jurisdiction to consider whether the NRCB Approval is in the public interest.

The NRCB considered and determined this question in 1992 under the mandate given to it in the NRCB

Act by the Legislature. No appeal of the public interest determination was sought, and the LPRT process

cannot revisit a decision for which the NRCB was the deciding body. The only authority the LPRT has is

to decide whether or not subsequent applications made to the Town are consistent with the NRCB

Approval.

[203] The Stoney Nations acknowledge this, but in terms of relief, are asking for the public interest

determination to be reconsidered in the context of the changing Aboriginal law over time. The public

interest decision was made by the NRCB in 1992, and the jurisdiction and consistency to be considered is

of that 1992 decision. The case law quoted by the Stoney Nations reflects current Aboriginal law, and it

applies to decisions that were appealed and were the subject of those appeals, and any decisions made

subsequently. The case law does not change decisions that were made previously. When the NRCB issued

its decision, there was an opportunity to appeal that decision, and the Stoney Nations did not appeal. The

public interest determination was made and stands. That is what the LPRT has before it in terms of

measure of consistency with the current area structure plan.

[204] Some of the references within the case law the Stoney Nations cited were to the Responsible

Energy Development Act, which does not apply to the NRCB and applies exclusively to the Alberta

Energy Regulator (AER). Other references were to the Administrative Procedures and Jurisdiction Act;

while this Act does apply to the NRCB, the provisions that now apply to questions of constitutional law

are treated very differently. Under the Administrative Procedures and Jurisdiction Act, the AER has

authority to consider constitutional questions and the NRCB does not. However, in 1992 it was the

Administrative Procedures Act, and there were no provisions related to authority to consider questions of

constitutional law. Honour of the Crown and the approaches that are appropriate now and reflect the law

and governing all tribunals is different than it was in 1992, when the NRCB was reviewing the project.

That difference does not make the approach wrong, either in fact or at law. The NRCB decision issued in

1992 reflected the law that was current at that time, and it was not appealed. The LPRT’s measure of

consistency applies to the NRCB Approval as it was issued.

SUMMARY OF THE APPELLANT’S (TSMVPL) POSITION

[205] The LPRT is not a constitutional decision maker and the constitutional questions raised are

outside the scope of the LPRT’s authority. The scope of a tribunal’s jurisdiction is grounded by the

statute, and it would be an error of law for the LPRT to consider the constitutional issues raised by the

Stoney Nations.

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[206] The LPRT does not have jurisdiction under the Act to determine whether the NRCB Approval is

in the public interest. As stated by the NRCB, it has already determined in 1992 that the proposed

development is in the public interest. The LPRT has no jurisdiction to assume the role given to the NRCB

to consider the broader public interest.

[207] The Stoney Nations seek to collaterally attack the NRCB Approval. In 1992, the Stoney Nations

made submissions to the NRCB including submissions about their traditional use of the Three Sisters

Lands and asked the NRCB to order the applicant to enter an agreement with the Stoney Nations to

document and report on the historical and cultural significance of the Three Sisters Lands in the period

before contact with Europeans. The Stoney Nations concerns about Honour of the Crown and s. 35 of the

Constitution Act existed in 1992. The Stoney Nations appear unhappy with the outcome of the 1992

determination and are looking for another opportunity to present their case. The NRCB did not grant the

Stoney Nations the relief they sought, but the Stoney Nations did not appeal the NRCB Approval. The

NRCB Approval stands unimpeached. There is no expiry date on the NRCB Approval, and despite the

passage of time, it continues to apply to the Three Sisters Lands.

[208] TSMVPL acknowledges that Honour of the Crown is a constitutional principle at stake in the

Crown’s dealings with Aboriginal people, but the Stoney Nations do not specify who the “Crown” is. If

the Stoney Nations submission is that the Crown is the NRCB, then the Stoney Nations seek to

collaterally attack the 1992 NRCB Approval, as set out above. The Stoney Nations provided no authority

to support the assertion that the enactment of an ASP triggers a duty to consult on behalf of the

municipality or the applicant. There are no provisions of the Act that delegate any aspect of the Crown’s

duty to consult to municipalities.

[209] It is inaccurate for the Stoney Nations to submit that the provision for flexibility in the NRCB

Approval allows a reconsideration of the project as a whole. The NRCB had stated it was mindful of the

monumentality of the process undertaken by the Applicant, and did not wish any applicant to be forced

through unnecessary duplicative proceedings. The Stoney Nations’ position that the 1992 NRCB

Approval was intended to be amended as necessitated, undermines the principle of certainty and the

legislative scheme of s. 619. Applicants are entitled to rely on provincial approvals. The NRCB Approval

provided certainty of use for the Three Sisters Lands. The flexibility provided was for the owner of the

Three Sisters Lands and the Town to revise details of timing, land uses, and with respect to the location of

transportation and other services. The NRCB did not provide flexibility to amend the approval at the

request of any party.

FINDINGS

8. The LPRT does not have authority to consider Honour of the Crown or to reconsider the NRCB’s

1992 public interest determination.

REASONS

[210] The Act empowers the LPRT to determine appeals filed pursuant to s. 619(5), which concern

refusals by municipalities to amend municipal land use planning bylaws when the applications are

consistent with provincial approvals. As previously discussed, this right of appeal is intended to reduce

regulatory burden and increase administrative efficiency and consistency so projects are not blocked at

the municipal level for issues already considered and approved at the provincial level.

[211] The right of appeal under s. 619 is limited and is not intended to allow the LPRT to revisit matters

already considered by the NRCB. The LPRT recognizes that approaches and principles of reconciliation,

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Honour of the Crown and Aboriginal law have changed since the NRCB issued its decision. However, to

view such changes as introducing new matters that have not been considered by the NRCB (and hence

available for examination by the LPRT) would imply provincial approvals can be challenged before the

LPRT whenever legal principles evolve after an approval has been issued. This interpretation would

effectively allow the LPRT to usurp the role of the provincial regulator, and is difficult to align with the

purpose of s. 619, which is intended at least in part to provide certainty to holders of provincial approvals.

[212] In this case, the legal principles in question raise constitutional questions which the LPRT is not

designated as a body empowered to decide under the Administrative Procedures and Jurisdiction Act and

its Regulations. In this respect, the LPRT has no greater authority than the NRCB. The LPRT cannot

determine constitutional questions or questions concerning whether the approval is in the public interest -

nor can it vary the NRCB Approval. The only matter within the jurisdiction of the LPRT is a

determination of whether the ASP is consistent with the NRCB Approval as issued.

Issue 7 – Areas of consistency not disputed by other parties

[213] TSMVPL’s section by section analysis of consistency for the Three Sisters ASP included the

following areas that were not commented on or disputed by the Town or the intervenors.

Undermining

[214] J. Tod of Wood Environment & Infrastructure Americas, presented the Area Mining Impact

Overview Report Resort Village Area Structure Plan_Rev2 prepared in November 2020. He provided an

overview of undermining due to former coal mines in the area, and the NRCB condition that required the

applicant to complete the four stages assessment of the safety of the area for development and take any

remedial action required by the Town. Mr. Tod described the four stages at the time of the NRCB

Approval:

Stage 1. Desk top study based on mine records: to establish the mining conditions, where

mining occurred, the geology, where and to what the depths the seams were. There is a

wealth of knowledge available, meticulous recordkeeping over the years. Mine plans

are available for all of the mines present in the valley, and a lot of investigative work

has been done since 1992 to assemble the information and compile it into one location.

The information is evaluated and used to define a preliminary constraint zone map for

the property. And the constraint zone map identified whether there was no restriction,

and areas with low, medium and high risk potential.

Stage 2. Ground truthing to check Stage 1: Once preliminary constraint zones are established

the next stage is reconnaissance, called ground truthing. It consists of walking the

ground to look for evidence of mining impact or activity in the form of subsidence,

cracking, ground deformations, as well as drilling and coring to confirm that the mine

location and depth.

Stage 3. Report summarizing Stages 1 and 2 and any mitigation required.

Stage 4. Additional ground truthing before construction

[215] The Canmore Undermining Review Regulation was enacted in 1997 and updated in 2020. As part

of the 2020 revision, guidelines were developed for the Canmore area with more detail reflecting changes

developed since 1992. Mr. Tod described the current 2020 Guidelines to Evaluate Proposed Development

Over Designated Undermined Lands in the Town of Canmore, Alberta (Guidelines) align with the stages

referenced in the NRCB Approval, but with the advantages of more analysis and new technology. The

current stages are described as follows:

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1.

Data Review and Analysis

- research of sources of technical information

- collection of copies of mine abandonment plans and georeferenced images in a

Geographic Information System (GIS).

- preparation of surface feature maps, and 3-D geological models of each mined seam

- preliminary site reconnaissance and map verification

- preliminary hazard zone mapping

2.

3.

Field Reconnaissance and Site Investigation

- preparation of detailed site-specific field reconnaissance maps

- detailed site reconnaissance

- preparation of a program to Investigate surface and subsurface conditions

- conducting preliminary site investigation including excavations, trenching, drilling,

- monitoring, testing and other required work

Data Evaluation and Assessment

- reporting of field reconnaissance findings and their implications

- updating of geological models with drilling data, and of hazard zone mapping to reflect

field reconnaissance and investigation findings

- identification and assessment of mitigative measures and/or the need for more

investigation

- finalizing site investigation and probable mitigation requirements

- calculation or estimating of ground deformations due to future mine subsidence

4.

Final Report and Definition of Approval Terms

- developing and carrying out specific site investigations to determine foundation design

requirements.

- updating ground deformation estimates

- preparation of specific recommendations on mitigation for individual developments

- construction of mitigation measures required in conjunction with road and municipal

infrastructure including "as built" existing mitigation details

- final report of findings, mitigation requirements and "as built" existing mitigation

details

[216] The flow chart from the Guidelines indicates the activities prior to ASP approval: review and

analysis of data, preparation of an Area Mining Impact Overview Report, and development of ASP

policy. An internal three-dimensional model for the underground mine workings was created, which

allowed specific sections to be cut in areas of interest to be used for modelling at more detailed stages of

undermining reports as required by the regulation. A total of five mines were found to directly underly the

ASP plan area at various depths and locations. A site reconnaissance visit was conducted to areas of

interest, and photographs, GPS points and tracks, along with notes on potential subsidence features were

collected. A preliminary hazard zone assessment map was prepared based on the potential impact from

undermining below the ASP plan area. The map identifies zones as follows:

- Zone 1 Green: no structural or ground mitigation required for development. These are areas

that have not been undermined, or are located above the midpoint of broad de-pillared areas

with expected uniform settlement;

- Zone 2 Yellow: development possible with ground mitigation. These are associated with near

surface workings with the potential for sinkhole formation;

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- Zone 3 Orange: development possible

with ground and structural mitigation,

as necessary. These are associated

with areas that are undermined by

more than one de-pillared seam;

- Zone 4 Magenta: development

possible, but higher ground strains are

possible. These zones are associated

with the margins above the edges of

de-pillared areas where the strains, tilt

and curvature are expected to be

locally higher; and

- Zone 5 Red: steeply dipping or sub-

vertical workings. These areas have

potential for sinkhole or trough

development; the potential for

development is considered low as the

potential costs for mitigation are

considered high.

[217] During more detailed planning stages, such as conceptual scheme, land use or subdivision, the

preliminary hazard zone assessment map is updated and refined as outlined in the Guidelines. The hazard

zones are not an indicator of where development may or may not occur, it is an indicator of where further

investigation is required and possibly an increased level of engineering is required to permit development.

Transportation and Infrastructure

[218] A. Newcombe of WSP presented the Three Sisters Mountain Village Global Transportation

Impact Assessment prepared in January 2021 to support both of the ASP applications. Mr. Newcombe

stated that he reviewed the NRCB Approval and application documents as well as relevant documents the

Town had prepared since the original application in 1991, including the 2018 Integrated Transportation

Plan and the 2017 Utilities Master Plan. The original application had included three connections to the

existing transportation network at the time: one to the west to the existing Town network, a mid-point

connection to Hwy 1 (which is now constructed) and one at Dead Man’s Flats. There were two routes out

of the development to the Dead Man’s Flats interchange, including one that circled the Thunderstone

lands. The ASPs also show the three connections and the road through the Thunderstone lands.

[219] Other characteristics include the meandering, low speed arterial road in the original application

that is the Three Sisters Parkway. Policies in the ASP relating to Three Sisters Parkway employ traffic

calming, reduced vehicle speeds, and traffic safety, consistent with the original application and also

consistent with the Town's integrated transportation plan that is in effect. The original application talked

about narrow roadways, reduction in right-of-way with trees set close to the right-of-way to minimize

ground disturbance. This is in direct alignment with the intent in the ASPs to minimize pavement widths

to reduce the amount of land impacted by roads.

[220] The NRCB also recommended taking into account the desirability of reducing nitrogen oxides

emissions when designing roads in the project, which could be accomplished by encouraging alternate

forms of transportation. The Canmore Integrated Transportation Plan focuses on alternative transportation

modes: cycling, walking, and public transit. The ASPs are consistent with that, and have an extensive

network of pathways, trails, cycling routes, and transit options that are proposed. There is a large desire in

the transportation world today to have alternate modes of transportation. and one of the effects is to

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reduce or mitigate nitrogen oxides emissions. This directly correlates back to the recommendation in the

NRCB Approval.

[221] Mr. Newcombe also discussed utility infrastructure in the ASPs compared to the utility

infrastructure before the NRCB. The original application through the 1991 EIA described utility servicing

for the project area as being done by municipal services and not being standalone. Those are the policies

that are contained within Section 9 of the ASPs and include statements that describe that the plan areas

will be serviced with municipal water, sanitary, stormwater, utilities. Utility alignments would be

determined at the subdivision stage, and that would be done in conjunction with the Town at the time of

subdivision. Similarly, the shallow utility statements are very much the same, locations to be done to the

satisfaction of the Town and the utility companies. The 2017 Utilities Master Plan in the Three Sisters

area were and still are proposed to be serviced by municipal water and sewer and stormwater. Although

some of the concepts may have changed slightly since 1992, they are consistent with the Town's Utility

Master Plan. The Utilities Master Plan in 2017 shows these areas included within future growth areas and

incorporated within the long-range utility planning. The concepts being presented are very similar to the

original application and are consistent with the NRCB Approval.

FINDINGS

9. The reports and testimony indicate the Three Sisters ASP is consistent with the NRCB Approval

with respect to undermining, transportation networks and utility infrastructure.

REASONS

[222] 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

Three Sisters ASP is consistent with the NRCB Approval.

Issue 8 – ASP as amended or as submitted

[223] TSMVPL requested the originally submitted ASP be considered by the LPRT. An enormous

amount of work was put into the ASP - there were unique considerations relating to the NRCB decision,

wildlife corridors, and the previous coal mining use, requiring studies and reports to a scale and level of

detail beyond a typical ASP, work and effort by hundreds of professionals. Small-scale amendments at

public hearing are typical, but the scale and scope of the amendments proposed for the Three Sisters ASP

were almost rewriting the entire plan.

FINDINGS

10. The amendments to the ASP were not subject to rigorous study and should not be incorporated.

REASONS

[224] 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.

Page 49

File No. P21/CANM/T-003

Decision No. LPRT2022/MG0673

CONCLUSION

[225] The Three Sisters ASP is consistent with the NRCB Approval and the LPRT orders the Town to

adopt the Three Sisters Village Area Structure Plan as submitted and considered by Council on February

9, 2021.

Dated at the City of Edmonton in the Province of Alberta this 16^thday of May, 2022.

LAND AND PROPERTY RIGHTS TRIBUNAL

__________________________________________

(SGD.) H. Kim, Member

Page 50

APPENDIX A

PARTIES WHO ATTENDED, MADE SUBMISSIONS OR GAVE EVIDENCE AT THE HEARING:

NAME

CAPACITY

G Stewart-Palmer

Counsel for TSMVPL Appellant, Shores Jardine LLP

J. Redman

Appellant, Shores Jardine LLP

K. Elhatton-Lake

C. Ollenberger

J. Karpat

P. Shewchuk

I. Gray

Appellant, Shores Jardine LLP

Appellant, Witness, QuantumPlace Developments Ltd.

Appellant, Witness, Nichols Applied Management Inc.

Appellant, Witness, WSP

A. Newcombe

J. Tod

Appellant, Witness, Wood Environment & Infrastructure Americas, a

Division of Wood Canada Limited

K. Knopff

Appellant, Witness, Golder Associates Ltd.

K. Becker Brookes

Counsel for Town of Canmore Respondent, Reynolds Mirth Richards

Farmer LLP

L. Miller

A. Fish

Respondent, Witness, Town of Canmore

F. Vance

Counsel for NRCB, Intervenor

B. Kennedy

B. Barrett

T. Osvath

S. Fluker

H. Young

Counsel for NRCB, Intervenor

Counsel for Stoney Nakoda Nations, Intervenor

Counsel for Y2Y, Intervenor

Y2Y, Intervenor, Witness

APPENDIX B

DOCUMENTS RECEIVED AND CONSIDERED:

NO.

PA1

PY2

PA3

1A

2R

3N

ITEM

TSMVPL Submission on Preliminary Matter re: Y2Y Submission

Y2Y Submission on Preliminary Matter re: Y2Y Submission

TSMVPL Response re Y2Y Submission

Notice of Appeal Three Sisters Village and Attachments (1858 pp)

Letter to LPRT from RMRF Aug 4, 2021 (4 pp)

NRCB Letter September 15, 2021 (1 pp)

4S

5S

6S

7Y

Stoney Nakoda Nations Letter September 17, 2021 (1 pp)

Stoney Nakoda Nations Intervention Memo (5 pp)

Snow Affidavit sworn 2021-09-16 (188 pp)

Yellowstone to Yukon (Y2Y) Letter September 17, 2021 (1 pp)

Y2Y Written Argument (12 pp)

8Y

9Y

Jodi Hilty Statement 09-17-21 (4 pp)

10Y

11Y

12R

13R

Hilary Young Statement 09-17-21 (7 pp)

Human-Wildlife Coexistence Report (86 pp)

Letter RMRF re Submissions of Town of Canmore (2 pp)

Submissions of the Respondent Town of Canmore (80 pp)

14A

15A

2021-09-24 Letter GJSP to LPRT, K. Becker Brookes (1 pp)

Letter GJSP to Intervenors re Preliminary Applications for

Intervenor Status (1 pp)

16A

TSMVPL BRIEF re Holding Preliminary Jurisdictional Hearing

and Consolidation (183 pp)

17A

TSMVPL Brief re Intervenors (194 pp)

18A

2021-12-02 Letter GJSP to LPRT (4 pp)

19N

20Y

2021-12-03 NRCB Submission re schedule (1 pp)

Y2Y December 3, 2021 Letter (1 pp)

21R

22S

23A

24A

25A

26A

27A

28A

29A

30R

31R

32Y

Letter to LPRT re Hearing Dates and Disclosure Dates (2 pp)

Stoney Nakoda Nations Schedule Submissions (3 pp)

Three Sisters Village Merits Argument (91 pp)

Three Sisters Village Binder of Legislation & Authorities (314 pp)

Three Sisters Village Evidence Binder (464 pp)

Three Sisters Village Town materials Binder (1259 pp)

Three Sisters Village NRCB Exhibits Binder (2791 pp)

Three Sisters Village Evidence Witness Statement Binder (967 pp)

Three Sisters Village List of Witnesses (1 pp)

Letter regarding Town Submissions re Jurisdiction (1 pp)

Submissions on Jurisdiction of Town (399 pp)

Y2Y Letter February 3, 2022 (1 pp)

32Y Tab A

32Y Tab B

32Y Tab C

32Y Tab D

32Y Tab E

32Y Tab F

33S

34A

35A

36A

37A

Y2Y Argument (375 pp)

Y2Y List of Witnesses (1 pp)

Witness Statement of H. Young February 2022 (1 pp)

Statement of H. Locke January 5, 2022 (40 pp)

Statement of J. Jorgenson January 6, 2022 (15 pp)

Statement of A. Ford (131 pp)

Stoney Nakoda Nations Arguments 2022-01-07 (13 pp)

2022-01-21 Letter Re Service TSV ASP (1 pp)

2022-01-21 TSMVPL Jurisdictional Brief – TSV (21 pp)

2022-01-20 TSMVPL Jurisdictional Binder (125 pp)

2022-01-21 C Ollenberger Witness Statement TSV Jurisdiction (9

pp)

38A

39N

40N

41R

2022-01-21 J Karpat Witness Statement Jurisdiction (2 pp)

2022-01-27 NRCB Cover Letter on Jurisdiction (1 pp)

NRCB Submission on Jurisdiction (38 pp)

Letter from RMRF re Submissions of Town on Merit re TSV ASP

(1 pp)

42R

43R

44R

45R

46R

47R

48A

49A

Written Submissions of Town on Merit re TSV ASP (28 pp)

Authorities re TSV ASP (669 pp)

List of Witnesses re TSV ASP (1 pp)

Witness Statement L. Miller TSV ASP (2 pp)

Witness Statement A. Fish TSV ASP (2 pp)

Reply Submissions of Town to NRCB on Jurisdiction (122 pp)

February 15, 2022 Letter from TSMVPL (1 pp)

TSMVPL TSV ASP Reply Brief (47 pp)

50A

TSMVPL TSV ASP Supplemental Legislation and Authorities

Binder (59 pp)

51A

52A

53R

TSMVPL TSV Supplemental Witness Statement Binder (43 pp)

TSMVPL TSV ASP Supplemental Evidence Binder (174 pp)

Contours Limited v Mathers and Son Limited, 1993 NSCA 145 (13

pp)

54A

2022-02-21 C. Ollenberger Direct Examination Jurisdiction Slides

(22 pp)

55A

56N

57R

58A

59A

60A

61A

62A

63A

64A

65A

Ex12 Tech Report 9.9b Transportation Traffic Study (14 pp)

NRCB Exhibit List (17 pp)

NRCB Transcript Excerpts (8 pp)

Pearce Shewchuk Testimony (11 pp)

2022-02-3-01 Gray PowerPoint (32 pp)

A Newcombe PowerPoint (20 pp)

C Ollenberger PPT Presentation Direct Reduced (66 pp)

C Ollenberger Read In Evidence from Smith Creek ASP (204 pp)

J Karpat PPT Direct (108 pp)

J Karpat Read In Evidence from Smith Creek ASP (97 pp)

J Karpat and C Ollenberger Read In Evidence from Smith Creek

ASP Appeal (3 pp)

66R

67R

C Ollenberger Cross Read In Evidence from Smith Creek ASP

Appeal (86 pp)

J Karpat Cross Examination Read In Evidence from Smith Creek

ASP Appeal (65 pp)

68A

69A

70A

71A

72A

73A

Town of Canmore Land Use Bylaw Excerpts (8 pp)

Preliminary Hazard Zone and Land Use Concept Map (1 pp)

J Tod PPT (15 pp)

J Tod Read In Evidence from Smith Creek ASP Appeal (33 pp)

Dr Knopf PPT (7 pp)

Dr Knopf Read In Evidence from Smith Creek ASP Appeal (10

pp)

74A

A Newcombe Read In Evidence from Smith Creek ASP Appeal

(23 pp)

75A

76A

I Gray Read In Evidence from Smith Creek ASP Appeal (120 pp)

P Shewchuk Read In Evidence from Smith Creek ASP Appeal (40

pp)

77R

78R

79R

80R

A Fish Read In Evidence from Smith Creek ASP Appeal (61 pp)

L Miller Read In Evidence from Smith Creek ASP Appeal (58 pp)

Board Questions Evidence from Smith Creek ASP Appeal (61 pp)

Town of Canmore LUB Excerpts Section 4.12 Three Sisters Resort

Accommodation District (8 pp)

81A

82A

83Y

A Fish Cross Examination Evidence from Smith Creek ASP

Appeal (26 pp)

L Miller Cross Examination Evidence from Smith Creek ASP

Appeal (24 pp)

Y2Y presentation LPRT March 7 2022 (22 pp)

84Y

85S

86A

87A

RSA_Comparisons (Y2Y March 7) (1 pp)

Authorities_Stoney_Nakoda_Nations_bates (835 pp)

22-03-28 TSV Closing PowerPoint (64 pp)

22-03-27 Closing Argument G. Stewart-Palmer from Smith Creek

ASP Appeal (1359 pp)

88R

Transcript KLBB Closing Argument (85 pp)

APPENDIX C

LEGISLATION

The Act and associated regulations contain criteria that apply to appeals to the LPRT. While the following

list may not be exhaustive, some key provisions are reproduced below.

Municipal Government Act

Purpose of this Part

617 The purpose of this Part and the regulations and bylaws under this Part is to provide means whereby

plans and related matters may be prepared and adopted

(a) to achieve the orderly, economical and beneficial development, use of land and patterns of

human settlement, and

(b) to maintain and improve the quality of the physical environment within which patterns of

human settlement are situated in Alberta,

without infringing on the rights of individuals for any public interest except to the extent that is necessary

for the overall greater public interest.

Section 618.3 and 618.4 direct that all decisions of the LPRT must be consistent with the applicable

regional plan adopted under the Alberta Land Stewardship Act or the Land Use Policies (LUP).

ALSA regional plans

618.3(1) Anything done by any of the following under a provision in this Part or a regulation under this

Part must be done in accordance with any applicable ALSA regional plan:

(a) a municipality;

(b) a council;

(c) a municipal planning commission;

(d) a subdivision authority;

(e) a development authority;

(f) a subdivision and development appeal board;

(g) the Land and Property Rights Tribunal;

(h) an entity to which authority is delegated under section 625(4).

(2) If there is a conflict or an inconsistency between anything that is done under a provision of this Part

or a regulation under this Part and an applicable ALSA regional plan, the ALSA regional plan prevails to

the extent of the conflict or the inconsistency.

Land use policies

618.4(1) Every statutory plan, land use bylaw and action undertaken pursuant to this Part by a

municipality, municipal planning commission, subdivision authority, development authority or

subdivision and development appeal board or the Land and Property Rights Tribunal must be consistent

with the land use policies established under subsection (2).

(2) The Lieutenant Governor in Council, on the recommendation of the Minister, may by regulation

establish land use policies.

Provincial approval prevails

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).

(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

(a) a notice of appeal, and

(b) a statutory declaration stating why mediation was unsuccessful or why the applicant believes that

the municipality was unwilling to attempt to use mediation.

(6) The Land and Property Rights Tribunal, on receiving a notice of appeal and statutory declaration

under subsection (5),

(a) must commence a hearing within 60 days after receiving the notice of appeal and statutory

declaration and give a written decision within 30 days after concluding the hearing, and

(b) is not required to notify or hear from any person other than the applicant and the municipality

against whom the appeal is launched.

(7) The Land and Property Rights Tribunal, in hearing an appeal under subsection (6), may only hear

matters relating to whether the proposed statutory plan or land use bylaw amendment is consistent with

the licence, permit, approval or other authorization granted under subsection (1).

(8) In an appeal under this section, the Land and Property Rights Tribunal may

(a) order the municipality to amend the statutory plan or land use bylaw in order to comply with a

licence, permit, approval or other authorization granted by the NRCB, ERCB, AER, AEUB or AUC,

or

(b) dismiss the appeal.

(9) Section 692 does not apply when the statutory plan or land use bylaw is amended pursuant to a

decision of the Land and Property Rights Tribunal under subsection (8)(a).

(10) A decision under subsection (8) is final but may be appealed by the applicant or the municipality in

accordance with section 688.

(11) In this section, “NRCB, ERCB, AER, AEUB or AUC” means the Natural Resources Conservation

Board, Energy Resources Conservation Board, Alberta Energy Regulator, Alberta Energy and Utilities

Board or Alberta Utilities Commission.