In the Court of Appeal of Alberta’s decision of Canmore (Town of) v Three Sisters Mountain Village Properties, 2023 ABCA 278, the Town of Canmore (the “Town”) appealed two decisions of the Land and Property Rights Tribunal (the “Tribunal”).
These decisions required the Town to adopt area structure plans known as the Smith Creek Area Structure Plan (the “Smith Creek Plan”) and the Three Sisters Area Structure Plan (the “Three Sisters Plan”). The Smith Creek Plan and the Three Sisters Plan are amendments to previously approved plans under the approval process outlined by the Natural Resources Conservation Board (“NCRB”). The land was originally approved for area structure plans in 1993 for a golf resort with a course and condominium-style dwellings.
The original development was in the design and planning stage when the original purchaser fell on hard financial times. Following this, PricewaterhouseCoopers International Ltd. took control of the lands and sold them “as is” to Three Sisters Mountain Village Properties Ltd. (the “Three Sisters”) in 2014. Three Sisters subsequently sought to amend the original approval and redevelop the land for two resort-style condominium projects: the Smith Creek Plan and the Three Sisters Plan. When completed, the Three Sisters Plan and the Smith Creek Plan have the potential to drastically increase, not only the residents in Canmore, but also the amount of tourism that goes into Canmore.
In December 2020, the Respondent, Three Sisters, applied to the Town to amend the Smith Creek Plan and the Three Sisters Plan, but were defeated by the Town’s Council. Three Sisters then appealed this decision to the Tribunal, stating that the projects should have been approved, as they were consistent with the approval of the proposed development outlined by the NCRB in 1992. Further, Three Sisters argued that, as a result of this, Section 619(2) of the Municipal Government Act, RSA 2000, c M-26 (“MGA”) required the Town to approve them. As a result, the Tribunal agreed and ordered the Town to adopt the Smith Creek Plan and the Three Sisters Plan.
In its decision, the Court of Appeal of Alberta determined that the Town did not establish a basis upon which the Tribunal’s decision to compel the Town to adopt the Smith Creek Plan and the Three Sisters Plan could be interfered with. In doing so, the Court was simply tasked with determining both the jurisdiction of the Tribunal and whether their jurisdiction was properly exercised.
The Town took the position that the Tribunal failed to provide adequate reasons and further erred in concluding that Section 619 of the MGA applied to impose any obligation to approve the proposal by Three Sisters. In the alternative, if Section 619 did apply, the Town took the position that the Tribunal failed to interpret “consistent” in Section 619 (2) properly, failed to consider relevant evidence in finding that it was consistent, and further exceeding its jurisdiction under Section 619(8) by ordering the Town to adopt the Smith Creek Plan and the Three Sisters Plan.
In addition, the Town argued that the NCRB approval process was based on outdated evidence that may not be suitable or accurate today. In making this argument, the Town was enjoined by the Stoney Nations, who posited that the NCRB approval process was created in a legal and social context that pre-dated judicial confirmation of the duty to consult and accommodate. This argument was rebutted by the Tribunal, as it did not have jurisdiction to revisit the NCRB approval process, and that, when the process was created, it was meant to govern for several decades.
The Tribunal simply saw the issue in the appeal of the Smith Creek Plan and the Three Sisters Plan both as whether:
Ultimately, he Court determined that each plan was consistent with the approval process set by the NCRB. The Court also determined that the Tribunal was within the jurisdiction of Section 619(8) and that its decision revealed no jurisdictional error.
Although very controversial to the residents of Canmore, Alberta, this decision establishes that the Three Sisters Plan and the Smith Creek Plan were both approved and obtained through the proper consultation process. The NCRB set out the approval process, and Three Sisters followed it. The Tribunal enforced its statute-given power in the approval, and the Court of Appeal of Alberta recognized this. Accordingly, this decision also reinforces the determination by the Tribunal and further shows that it will not claw back the reasoning of an appellate board when its authority is properly executed in accordance with statute.
Justin Lentz, Student-At-Law