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Court of Appeal hears from potential intervenors on TSMVPL-owned lands

A trio of organizations gave arguments in their attempts to become intervenors in the Town of Canmore’s application to seek leave to appeal the Land and Property Rights Tribunal’s order to adopt the Smith Creek and Three Sisters Village area structure plans.
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New houses under construction in Stewart Creek at Three Sisters Mountain Village on Thursday (Aug. 5). EVAN BUHLER RMO PHOTO

CALGARY – Three organizations gave arguments in their attempts to become intervenors in the Town of Canmore’s application to seek leave to appeal the Land and Property Rights Tribunal’s order to adopt the Smith Creek and Three Sisters Village area structure plans.

In a two-hour hearing in the Calgary Court of Appeal on Tuesday (Aug. 16), Stoney Nakoda First Nation, Bow Valley Engage (BVE) and Natural Resources Conservation Board (NRCB) outlined reasons to be permitted in the latest legal phase between the Town of Canmore and Three Sisters Mountain Village Properties Limited (TSMVPL). The court also heard from the Town of Canmore and TSMVPL

Brooke Barrett, a lawyer with Rae and Company representing Stoney Nakoda, said the tribunal made an error in its interpretation of Section 619 of the Municipal Government Act and erred in its legal test of consistency since it should have been “interpreted through honour the crown and reconciliation.” In its orders, the LPRT said it didn’t have jurisdiction to do so.

Barrett said the First Nation had been involved in the question of the future of the lands since the original 1991 NRCB hearings. They were also intervenors during the tribunal hearings earlier this year.

She said the Stoney Nakoda isn't seeking to overturn the 1992 NRCB decision and it wouldn’t be proper for another government entity – such as the Town of Canmore – to speak on behalf of a First Nation.

“As the impacted First Nation, it is the proper party to make these submissions. It’s not proper for another government entity to be speaking on what honour the Crown and reconciliation is,” she said.

Gwendolyn Stewart-Palmer, the lead lawyer for TSMVPL, countered Stoney Nakoda didn’t appeal the 1992 NRCB decision and the tribunal’s scope was limited to finding the consistency between the ASPs and NRCB decision.

Calgary-based BD&P, who was representing BVE, said while the not-for-profit organization only achieved legal society status on May 18, 2022, it had long been involved in the matter.

Andrew Sunter, BVE’s lawyer, said any decision could have an impact on the society’s ability to achieve its mandate to “promote civic awareness, engagement and action on issues threatening the environment, sustainability, affordability and community character of the town and the surrounding Bow Valley area.”

Sunter called it “critically important [to] public interest decisions” the Court of Appeal will be determining.

However, Justice Bernette Ho and Stewart-Palmer took issue with the argument, specifically with Ho reminding Sunter multiple times the court was to either decide on the question of law or jurisdiction.

“Ordinarily, the court is looking at very narrow issues. It’s looking at the question of law or jurisdiction. Full stop. If they’re not, then do not pass go,” she said. “The court has a very limited scope in its consideration of a PTA (permission to appeal) situation.”

Stewart-Palmer added it was the Town’s role to represent the people and not an organization, while also that it failed to submit a broad range of interest for the Bow Valley since it has focused on Canmore issues.

“The written submissions do not show or illustrate that legal interest they need to put forward. … There are no evidence before this court how BVE would provide any broader positional representations than the Town,” she said. “The Town is the democratically elected representative of the residents of the town. It is the Town that has been directed by the LPRT to pass the ASPs.”

The NRCB, which has been involved at all legal stages since its 1991 hearing and 1992 decision, noted it is not taking a stance. However, it had an issue with any party taking a stance that the 1992 decision should have an expiry date.

NRCB general counsel Bill Kennedy said any decision could be “directly and significantly affected by the appeals outcome,” as well as being able to provide expertise.

“The operational validity of the NRCB approval to the [ASPs] is the core issue in the provision to appeal the application. As a regulatory tribunal, any challenge to the effect of an NRCB-issued approval has the potential to directly affect the board’s credibility and relevance,” he said.

The Stoney Nakoda was one of three intervenors at the LPRT hearings along with Yellowstone to Yukon (Y2Y) Conservation Initiative and the Natural Resources Conservation Board (NRCB).

Town council directed staff on June 7 to move forward with the leave to appeal following the LPRT’s rulings in May.

The Town’s leave included an application to stay the LPRT decisions, which until a decision is rendered means no development planning on the ASPs will continue.

In a June statement, TSMVPL president David Taylor said he remained confident if a leave to appeal is granted the ASPs would proceed since it aligns with the NRCB decision.

“TSMVPL respects last month's LPRT decisions. We took every step necessary to ensure our area structure plans for Three Sisters Village and Smith Creek adhered to the original decision of the Natural Resources Conservation Board permitting development of Three Sisters lands,” he said. “If the court does decide to hear this appeal, TSMVPL absolutely believes that the court will conclude that the LPRT decisions were reasonable. The development of Three Sisters' lands were determined to be in the public interest by the NRCB and the LPRT agreed that our area structure plans are consistent with the NRCB decision.”

Town council approved $750,000 in the 2022 budget for TSMVPL-related litigation. The Town spent $217,000 on legal fees for the LPRT hearings.

The LPRT decisions resoundingly went in TSMVPL’s favour, as it noted the two ASPs aligned with the 1992 NRCB decision. It cited the 2020 Court of Appeal case Borgel v. Paintearth multiple times, which said it aimed to “prevent a municipality from blocking development that has been deemed in the public interest.”

The LPRT stated since the 1992 NRCB decision remains in effect, the Town was legally obligated to pass the two ASPs due to their consistency with the provincial board’s ruling.

Canmore was unable 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,” the Three Sisters Village ASP decision stated.

The tribunal also noted that “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 Smith Creek ASP is consistent with the NRCB approval.”

The LPRT hearings lasted 15 days and had more than 110 hours of testimony in addition to thousands of pages of evidence accepted.

TSMVPL has a $161 million lawsuit against the Town and previous council, while Thunderstone Quarries has a $63.5 million lawsuit against the Town since it owns lands that would be part of the Smith Creek proposal.

The Court of Appeal hearing is scheduled for late September.