‘Backed into a corner’: Duncan’s First Nation sues Alberta for cumulative impacts of industry
Lawsuit follows in the footsteps of B.C. Supreme Court’s precedent-setting Blueberry River decision, which could...
A sprawling development on the edge of the booming Alberta tourist town of Canmore has been brought back from the dead one year after town council rejected it, but could still be defeated if a legal appeal is successful.
The approval of the Three Sisters Mountain Village by the Alberta Land and Property Rights Tribunal has raised concerns from critics about the ability for a democratically elected town council to make decisions about its development and the ensuing environmental impacts.
The development could nearly double the town’s population.
“One of the big shocks of this for us was that this small group of provincially appointed members of the tribunal made the decision that overturned this municipality’s democratic process, that had six days of public hearings and, you know, over 110 hours of public presentations,” Hilary Young, the Alberta program director for the Yellowstone to Yukon Conservation Initiative, says.
“It was sort of unprecedented involvement in this public process.”
The provincial tribunal’s decision left the town, which sits just outside the boundary of Banff National Park, with little recourse. On June 7, it voted to request a leave to appeal the tribunal decisions at the Alberta Court of Appeal.
The whole saga started in 1992, during a period of political turmoil in Canada as the Charlottetown Accord was rejected in a referendum and Quebec separatism surged. In December of that year, the Natural Resources Conservation Board approved a massive development in Canmore that covers approximately 80 per cent of developable land in the town.
The plan was to build golf courses, hotels, housing and commercial properties along a vast strip of land on the west end of the town and snaking down the valley. The board approved of the plan as long as there were adequate wildlife corridors.
Since then, the project has floundered and the property changed hands. The area plans have also changed since council approved previous iterations in 2004. Gone are the golf courses, for one.
The current plans for two new neighbourhoods include housing for up to 14,500 people, as well as a hotel, arts centre, a possible school, as well as light industrial, office and commercial spaces.
“They’re largely residential development proposals, rather than resort communities, which was being proposed back at the time,” Young says. “So fundamentally, they feel quite different.”
The town presented a similar argument at the tribunal hearings, arguing the plans it rejected amounted to a completely different project and the approval by the conservation board in 1992 should no longer supersede the town’s ability to block the development.
The land tribunal, however, disagreed and said the town did not have the authority to overturn the conservation board’s approval.
The debate over the developments has been heated, with over 240 citizens piling into the council chambers to speak out during public hearings, including the nearby Stoney Nakoda Nations.
In a submission to town council in 2021 opposing the project plans, the Stoney Nakoda — composed of the Bearspaw, Chiniki and Wesley First Nations — asserted their Aboriginal and Treaty Rights to the area, including the proposed developments. The nations says consultation since 1992 “have been and remain insufficient.”
The nations argue the developments further impact their traditional territories and want more consultation, and the ability to include traditional knowledge in any environmental and cultural assessments of the plans.
“The Stoney Nations require their traditional lands to continue to exercise their cultural and traditional practices,” reads the submission.
“Importantly, the Stoney Nations require their traditional lands to be ecologically functional to pass on their cultural and traditional practices to subsequent generations.”
Requests for comment to the office of the chiefs were directed to the acting director of consultations, but The Narwhal did not receive a response.
Following council’s rejection last year, the company behind the development, Three Sisters Mountain Village Properties Ltd., sued the town and councillors for “abuse of power of public office,” “negligent misrepresentation” and “de facto expropriation” over the rejection.
The suit, which is ongoing, seeks up to $160 million in compensation, or a rehearing of the plans at council, a ruling that the council decision was void and damages.
Because of that lawsuit, three councillors had to recuse themselves from the decision on June 7 as to whether to appeal the tribunal decision.
Chris Ollenberger, director of strategy and development for Three Sisters Mountain Village Properties Ltd., says the company was not surprised by the council’s decision, but is confident the project meets the requirements to proceed and says the company spent a lot of money and time to listen to the community and address concerns.
He also says they have reached out to the Stoney Nakoda Nations throughout the process and continue to do so.
“I think we recognize that there’s disappointment in some quarters of Canmore, for sure,” Ollenberger says. “And it can be a challenge to meet everybody’s goals, but one of the goals that has to be also met is recognizing that the decision about whether development forward has been made already.”
Ollenberger says it’s a fine balance to address community concerns, adhere to the 1992 approval and to keep the project financially viable.
He says the lawsuit against the town and council is still proceeding.
Eran Kaplinsky, a law professor at the University of Alberta and director of the Alberta Land Institute, says provincial legislation governing municipalities makes it clear that decisions by expert bodies like the tribunal trump council planning powers.
“They didn’t overturn a decision or instruct council what to do … they just said, given that the statutory claims that were presented for council approval were consistent with the prior provincial approval, the town council had no choice but to approve them,” he says.
The fact the tribunal was able to quash the decisions of an elected council might seem troublesome, but Kaplinsky says there’s a reason these layers of authority exist. The tribunal, he says, is an arbiter of consistency.
“The theory is that we don’t want parochial interests to jeopardize projects of economic or other provincial importance,” he says.
“And sometimes, fortunately not often, this pits the municipality and the provincial interest against each other, but the statute establishes a clear priority.”
It will be those legal questions that Alberta’s court of appeal will hear, if it decides to hear the arguments at all.
The area where the development will take place is an active wildlife area, with bears, wolves, ungulates and more wandering the wooded hills. It’s one of the reasons many were opposed to the latest plans, even though they include corridors approved by Alberta Environment and Parks in 2020.
Devon Earl, a conservation specialist with the Alberta Wilderness Association, says the plans meet the criteria set out in the 1992 approvals, but that they are not based on current research about wildlife movement in the valley. She says the corridors are too narrow and lie on slopes that are too steep.
“The bare minimum that wildlife populations need to persist is functional movement corridors, and the majority of their habitat has already been fragmented,” she says.
“And if we don’t maintain social movement corridors, our wildlife populations are going to suffer. And that’s not a fair compromise.”
Young agrees the corridors are insufficient and says her organization tried to appeal the 2020 approvals, but were told because it was a condition of the 1992 conservation board decision, the opportunity to appeal the decision had long-since lapsed.
“Over the last 30 years, there’s been a number of different iterations of development proposals for those lands and the community’s been involved every step of the way, opposing proposals that won’t work for community or for the wildlife in the area,” Young says.
She says her organization isn’t against development in the area, as long as it is sustainable.
A recent paper in the journal Movement Ecology showed human development in the Bow Valley — in a stretch from Banff to Canmore — has significantly impacted carnivore movements and said 85 per cent of valley connections had already been impacted.
The Yellowstone to Yukon Conservation Initiative also released a cumulative effects report looking at the impact of past developments and possible future developments on grizzly bears in the valley shortly after the tribunal decision was made. Although not timed to the decision, its forecasts include scenarios where the Three Sisters and Smith Creek developments are not built.
It found grizzly bears have already been pushed from preferred travel routes by human development, a trend that is likely to increase with more development. It also showed an increase in recreational use if the developments go through and an increase in human-grizzly bear conflicts.
But it’s not just knowledge that has changed, or the proliferation of new developments in the area. The population of Canmore has also grown from 5,681 in 1991 to 15,990 last year. The proposals could eventually add 14,500 more to the rolls.
“That context has shifted,” Young says. “The biodiversity crisis the world is experiencing, the climate crisis, all of these changes that have happened in the last 30 years aren’t being considered at all in the decision.”
Ollenberger disagrees with that characterization and argues much of what was talked about in the 1992 approval is still relevant today, including wildlife corridors, and that the company’s most recent plans have been adapted to changed situations.
“So to say that the [tribunal] decision or the area structure plans are rooted in 1992 is not completely accurate,” he says. “Because actually a lot of the foundation of those area structure plans is based on Canmore’s most modern land-use bylaw and most modern Municipal Development Plan.”
Kaplinsky says there’s an interesting tension at play, between the need for consistency in projects of provincial significance and the local expertise of councils, which allows them to be good environmental stewards.
He also doesn’t think any new provincial approvals, like the one issued in 1992, should be made without “some sort of sunset clause.”
“I don’t think it would be desirable to pre-approve a project without some measures for flexibility to account for changing conditions,” Kaplinsky says. “But the approval is what it is.”
Both Young and Earl say their organizations are mulling next steps in terms of opposing the development as proposed, but Young says one thing is clear: decision-making should not be happening in a piecemeal fashion.
She says Yellowstone to Yukon Conservation Initiative’s latest grizzly bear report is a nudge in that direction.
“The point of this work is really to show that we’d like to have more conversation, we’d like to think about this valley as a whole and not just these small project-based decisions that aren’t taking into consideration the big effects that they can have,” she says.
“And we just need to get people talking with each other more. Because it’s not happening enough right now.”
But it’s not just the wildlife that was on the minds of council on June 7. Speaking to a meeting diminished to four members after those named in the lawsuit left, Mayor Sean Krausert argued the 1992 decision left room for council to determine how those lands were developed.
“What we need is affordable below-market, entry-level housing to a significantly greater extent than proposed in the two bylaws and which is entirely consistent with the [Natural Resources Conservation Board] decision.”
In a statement, the town says it anticipates the appeal will be filed on June 15 and those documents will provide details on the grounds to appeal. The town says it won’t provide further comment at this time.
Updated June 8, 2022, at 9:25 a.m. MT: This article was updated to add a statement from Three Sisters Mountain Village Properties Ltd., and corrected to say Three Sisters Mountain Village Properties is suing the town and councillors and not Quantum Place Developments.
Updated June 8, 2022, at 5:04 p.m. MT: This article was updated to add quotes from an interview with Chris Ollenberger, director of strategy and development for Three Sisters Mountain Village Properties Ltd.
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