Skip to content

Closing remarks on Smith Creek hearing focuses on consistency, inconsistencies with NRCB decision

The closing remarks for the Land and Property Rights Tribunal on the Smith Creek ASP had all sides arguing on the consistency or inconsistency in its relation to the 1992 NRCB decision.
20210805 TSMV 0035
New houses under construction in Stewart Creek at Three Sisters Mountain Village in August, 2021. EVAN BUHLER RMO PHOTO

CANMORE – The Land and Property Rights Tribunal began with a focus on the words prevail, amend and amendment in determining Section 619 of the Municipal Government Act.

In the closing arguments for the five involved parties, all brought a high level of examination of the words consistency and inconsistency, specifically how the Three Sisters Mountain Village Properties Limited (TSMVPL) Smith Creek area structure plan (ASP) aligns with the 1992 Natural Resources Conservation Board (NRCB).

For one-and-a-half days on March 9 and 10, legal representatives for the Town of Canmore, TSMVPL, Yellowstone to Yukon (Y2Y) Conservation Initiative and the Stoney Nakoda First Nation argued how the preceding two weeks had either shown or not shown the ASPs were consistent with the NRCB decision.

Gwendolyn Stewart-Palmer – the legal representation for TSMVPL – emphasized to the tribunal how the “NRCB approval in our case prevails over any municipal decision… a licence, permit or approval or authorization granted from the NRCB prevails in accordance with the section (619) over any statutory plan.”

She added how Section 619 of the MGA – which was discussed thoroughly during the hearing – allows a provincial board such as the LPRT to push projects forward.

“It is apparent the purpose of Section 619 is to reduce regulatory burden and increase administrative efficiency and consistency. Section 619 achieves this by granting paramountcy in certain provincial bodies to ensure projects are not blocked at the municipal level for issues already considered and approved at the provincial level.”

While there are multiple parties involved in the hearing on Smith Creek, ultimately it is on TSMVPL to show they were consistent with the NRCB decision.

It’s a fact the Town’s lawyer, Kelsey Becker Brookes, pointed out, saying “the onus is on the applicant, it’s on Three Sisters their ASP is consistent with NRCB decision. There isn’t any obligation on the Town to provide any agreement that it is consistent in any regard.”

A critical portion of TSMVPL’s case is the power of the NRCB decision, especially when it comes to outweighing that power at the municipal level.

Stewart-Palmer stressed how “the NRCB noted the significant nature of this development and noted that it did not wish to have roadblocks put up.”

She further emphasized the importance of the 2018 terms of reference, particularly the “critical” aspect of “TSMVPL (being) encouraged by the Town to include (the Thunderstone Quarry lands).”

She equally focused on the 1991 annexation of the lands from the MD of Bighorn and how it was brought forward by the Town knowing the development was underway and the Town wanted growth.

“The Town wanted it and the Town recognized without it they had finite lands and could not continue to grow. They recognized the project was coming and they embraced it.”

But Becker Brookes added: “this is a council decision” and that the “municipality would continue to play a role in the decision-making, and not an insignificant role.”

And while the decision gave the developer of the lands certain rights, she argued it also gave the Town assurances of commercial development, employee housing and affordable housing – all of which were lacking in the ASP, she said.

“Three Sisters was not the only party who received assurances from the NRCB approval," she said.

Among the tribunal’s more difficult tasks are not only examining arguments put forward by all sides, but analyzing the ASP that was presented in 2021 compared to that of the NRCB decision from 1992.

W. Tibor Osvath, who gave the closing remarks on behalf of the Stoney Nakoda First Nation which had intervenor status for the hearing, argued the issue is not an easy one for the tribunal, particularly with much changing in the past 30 years.

“If you are looking at a decision from 1992, which was determined in a completely different social and economic factual matrix... I think it’s important to put the 1992 NRCB decision in context for the board… when the board decided and examined the Stoney Nakoda’s Nation interest in the public interest test of 1992, the board did so at a time when residential schools were still operational in Canada.”

In its closing remarks, the NRCB – which is also an intervenor – stressed that the board’s decision was based on the law of 1992 and needs to be looked at through that lens.

“Clearly the practice we have today in relation to Aboriginal law and Aboriginal interest is far different than it was in 1991-92 when we were going through the review on Three Sisters,” said Bill Kennedy, the NRCB’s general counsel. “That doesn’t make the approach the board took in 1991-92 wrong. In 1992 the board’s decision was issued in the current law and it wasn’t appealed.”

Stewart-Palmer echoed the NRCB’s remarks in her rebuttal, saying that the tribunal’s jurisdiction is extremely specific in focusing on consistency and not re-examining the NRCB decision.

“This tribunal does not sit in appeal. The NRCB 1992 decision is not the role of this tribunal to reevaluate the public interest made by the NRCB in 1992. … Your role is to determine consistency. It is not to overwrite, overturn, repeal or amend the NRCB decision in its consideration and determination in the public interest.”

Shaun Fluker, who was representing Y2Y, said its position as an intervenor is that the approved provincial corridor isn’t consistent with the NRCB decision and it’s to have the corridor be “in as undeveloped state as possible to allow wildlife movements to continue” in the Smith Creek ASP.

He said Y2Y’s position as an intervenor is that the approved provincial corridor isn’t consistent with the NRCB decision.

And while the wildlife corridor was a critical aspect of the Smith Creek ASP, with the province needing to approve it before the ASP could be heard by Town council, Stewart-Palmer said the decision on the corridor has been stamped by the province.

“If Y2Y is not happy with that decision, the available remedy is to do a judicial review and it’s our submission that they are here because they don’t like it and they want you to do it and that, members of the board, would be an error of law.”

Under the jurisdiction of the tribunal, it can order the Town to accept the ASP. However, regardless of the decision, each side has appeal options once a decision is rendered.

The hearing for the Three Sisters Village ASP begins March 21 and continues until March 31.