CANMORE – An attempt to get a new environment impact assessment (EIA) on lands for ongoing polarizing development in Canmore could be dismissed on a technicality.
Thunderstone Quarries asked the Court of King’s Bench to squash Bow Valley Engage’s and Stoney Nakoda First Nation’s ability to request the new assessment on Three Sisters Mountain Village Properties Limited lands, arguing they didn’t properly notify Thunderstone Quarries of its original legal action.
Thunderstone Quarries owns land within the Smith Creek area structure plan (ASP), which was approved by Canmore council in 2023.
David Wachowich, legal counsel for Thunderstone Quarries, asked Justice Oliver Ho to strike the two organization’s applications for judicial review, due to not being served within six months of the Alberta Environment and Protected Areas director’s decision that it lacked jurisdiction to order a new EIA.
“Thunderstone hadn’t been served by Aug. 28, which is six months from the decision, or served at all. … The law compels these originating applications in each case should be struck,” he said.
Wachowich noted they were directly affected by the judicial review, citing several recent case law decisions and Thunderstone’s interest in the development warranted being served, particularly since it’s a separate entity from Three Sisters Mountain Village Properties Limited (TSMVPL). He pointed to the 2022 Land and Property Right Tribunal (LPRT) hearings, legal records and the 2023 Court of Appeal decision.
“No one can say Thunderstone was not well-known publicly … a proponent of the Smith Creek ASPs” and had “an obligation to be served,” he said.
Wachowich added Thunderstone Quarries have committed to contributions to the wildlife corridor – which is part of the Smith Creek ASP – and “Thunderstone has done so as a participant in this single coordinated project.”
He said Thunderstone Quarries purchased lands in the ASP in 2004 and 2007 and hadn’t been involved in the 1992 Natural Resources Conservation Board (NRCB) decision. However, he added it was discussed at both the 2022 LPRT hearings and 2023 Court of Appeal if it made it inconsistent, which both legal bodies found it did not.
Richard Harrison, the lawyer for Bow Valley Engage, said he attempted to serve all impacted parties such as the NRCB, Yellowstone to Yukon (Y2Y) Conservation Initiative and the province, but there “was no inkling in my office that Thunderstone was directly impacted. There was no inkling because they’ve never participated.”
“They are a quarry. They’re making a hole in the ground and I have not seen any evidence in any affidavit what development rights are being affected by an EIA,” he said, adding “my client had no idea these people existed,” he said.
Brooke Barrett of Rae and Company, legal representation for Stoney Nakoda First Nation, said Thunderstone Quarries is intermingled with TSMVPL, with Donald and David Taylor being directors for both companies.
However, Ho noted the two are separate legal entities and there was no proof either Taylor was directly served, and though TSMVPL was served legal documents Thunderstone Quarries was not.
“It is clear Three Sisters is the principal directing property with respect to Thunderstone and Thunderstone has given all its rights orders to Three Sisters,” Barrett said.
She added Resman Holdings owns Thunderstone, which has the Taylor’s as directors and “are very closely connected.” She continued though legally separate, “they act as a single corporation and you may as well call it the Taylor family Canmore development company.”
“Everyone has always treated the ASPs like its being proposed by a single landowner, so we’re saying in that sense Thunderstone can’t meet the threshold in saying it has a general interest where, in fact, it’s one landowner is actually Three Sisters,” she said.
Barrett said the designated director didn’t determine “whether an EIA could, should, would be required – never happened. The decision wasn’t made and has yet to be made.”
She said it was “too hypothetical to suggest that there could be or should or will be an EIA”
Ho highlighted, however, “except that was the specific request by both BVE and Stoney Nakoda in their letters to the director. They specifically said … they want an EIA. It’s not hypothetical. That’s the exact relief they were seeking.”
Barrett didn’t disagree an EIA was requested, but whether the designated director erred in not requiring an EIA because she didn’t get to that decision-making aspect since she felt she lacked jurisdiction.
She argued Thunderstone was never treated separately from Three Sisters and only became involved when it filed three days after the six months limit an application to strike and “nothing suggests that Thunderstone has a separate interest from Three Sisters in the Smith Creek ASP.”
Dalal Jergeas-Legate, a barrister and solicitor for the Alberta Ministry of Justice, noted several times there were no barriers to justice but Bow Valley Engage and Stoney Nakoda First Nation simply missed the deadline to submit.
“The issue before this court isn’t about access to justice or shielding administrative decision-makers from judicial scrutiny rather it’s about procedure and whether that procedure was followed,” she said.
Gwendolyn Stewart-Palmer, legal representation for TSMVPL, argued while TSMVPL had been properly served, Thunderstone Quarries is a separate entity that’s directly impacted and not been served.
She noted a condition of the 1992 NRCB decision required the wildlife corridor to be approved by the province, which it had in February 2020. Stewart-Palmer added Thunderstone Quarries took part in those discussions as a separate entity and ultimately gave lands for the corridor.
“The fact Thunderstone has given portions of its land for the wildlife corridors without compensation speaks to its involvement,” she said.
She highlighted Bow Valley Engage publicly referenced Thunderstone Quarries on numerous occasions, highlighting its distinct ownership of the lands.
“The evidence on the record is overwhelming that Thunderstones ownership is well known or ought to be,” she said.
“TSMVPL and Thunderstone are two separate entities. … Only service is service and there is no evidence of service here.”
PROVINCIAL MINISTRY LACKS JURISDICTION FOR NEW EIA
The Ministry of Environment and Protected Areas declined to order a new EIA last February on the Three Sisters’ lands set for development due to it not having the proper jurisdiction.
The provincial ministry stated Smith Creek and Three Sisters Village ASPs aligned with the NRCB’s 1992 decision in addition to the ministry lacking jurisdiction.
“I find that the current Three Sisters project and its ongoing construction are a continuation of the overall tourism and recreational project that was applied for and approved by the [NRCB] in 1992,” stated Corinne Kristensen, the director of regulatory assurance section for the Environment and Protected Areas ministry, in a letter.
TSMVPL have previously highlighted the lands approved for development have undergone an EIA that’s part of the 1992 NRCB decision as well as environmental, biophysical, wildlife and other assessments that have been reviewed by third parties.
The Smith Creek and Three Sisters Village ASPs had environmental impact studies completed in 2020, which were reviewed by the province, the Town of Canmore and an independent third-party hired by the Town.
TSMVPL had originally applied for a wildlife corridor in 2017, but it was denied by Alberta Environment and Parks in 2018. The same ministry approved a modified application in 2020, which featured a realignment of the Across Valley Corridor and a wildlife crossing under the Trans-Canada Highway.
The Court of King’s Bench allowed Bow Valley Engage to ask to have its judicial review be heard, leading to a September hearing where the Court of King’s Bench rejected an attempt by TSMVPL to dismiss applications from both Bow Valley Engage and Stoney Nakoda First Nation.
“They have clearly defined objectives and concerns and brought those forward under the [Environment Protection and Enhancement Act]. … Their requests were dismissed and clearly under a jurisdictional ground and they seek to have this court review that particular decision,” said Justice Darren Reed of Bow Valley Engage and Stoney Nakoda First Nation’s attempt to get a judicial review of the province’s decision.
“In my view, the merits of those applications for judicial review should be heard.”
Legal representation for both Stoney Nakoda First Nation and Bow Valley Engage highlighted they weren’t opposed to the development plans, which were passed by Canmore council in October 2023. The two plans had been ordered to move forward by the LPRT in 2022 and the Court of Appeal upheld the decision in 2023.
“We’ve made that concession. That issue, that ship has sailed,” said Harrison. “The LPRT has made that determination supported by the Court of Appeal that found that determination reasonable and we do not take issue with that determination.”
In December, the Stoney Nakoda Nation launched a lawsuit against the Town of Canmore and provincial ministries of municipal affairs and Indigenous relations to void the bylaws that approved the two ASPs.
The Town and TSMVPL will work through infrastructure and planning in 2024 and into 2025, but construction is anticipated to begin as early as 2025. The conceptual scheme for the first phase of the Three Sisters Village plan was approved in April.
The Smith Creek ASP would see an estimated population of 2,200 to 4,500 people and includes about 1,000 and 2,150 residential units. The ASP includes upwards of 75,000-square-feet of light industrial and business space and roughly 125,000 square feet of retail and commercial space for local services.
The Three Sisters Village ASP could have between 3,000-5,000 residential units – which would depend on the bonus density element – and between 5,500-10,000 visitors and permanent population. It would include up to 602,000 square feet of retail and business space and about 190,000 square feet of indoor recreation and entertainment, with 75 hectares of open space and 10 per cent of affordable housing.
Several environmental groups including the Canadian Parks and Wilderness Society, Alberta Wilderness Association, the Y2Y Conservation Initiative and local organizations like Save Grizz Corridor have spoken out against the developments over fear they will negatively impact quality habitat and movement corridors for animals, including at-risk grizzly bears and other species.
ARGUMENT FOR DIRECTOR HAVING JURISDICTION
Harrison argued the provincial director has the authority to have the NRCB consider a new EIA, but misunderstood the difference between a proposed project and a proposed activity.
He emphasized the applicants understood the projects have been approved, but the activities for the tourism and recreation aspect are still ongoing and merited further analysis, specifically a new EIA.
“It’s a fine distinction, but it’s a very important distinction when understanding what the designated director has jurisdiction over,” he said, arguing the NRCB has jurisdiction over the development projects but the director has jurisdiction over the activities.
“The NRCB has jurisdiction over one. The designated director has jurisdiction over the other,” he argued. “When the director goes and makes her decision that this was a reviewable project that was done in 1992 that was an unreasonable error because what she has jurisdiction over is whether the undertaking is proposed activity and not a reviewable project.”
Kathleen Elhatton-Lake, a legal representative for TSMVPL, argued the approved ASPs are not activities and the court needed to look at the overall project.
She noted activities such as additions of water, stormwater and wastewater systems will connect to existing Town infrastructure, meaning they shouldn’t be seen as new and development has been ongoing for decades.
She further highlighted the NRCB, LPRT and Court of Appeal have all ruled for the projects to go ahead, circling back to the NRCB determining it to be in the public interest of Alberta.
“The burden is on the applicant to show it is unreasonable and not just any degree of unreasonable. There need to be significant central flaws to the decision-making,” she said.
Elhatton-Lake noted tourism and recreation is an activity, but one determined by the NRCB more than 30 years ago. She noted when the provincial director received the request, an investigation was done to better understand the issue.
“There were measures done. They’ve been followed. Now, the applicants seem to be going for round two. This was heard and determined to be in the public interest by the NRCB and the applicants want an EIA of which the only result and the result they asked the director was for it to go to the NRCB for a public interest determination,” she said.
Andrea Simmonds, a lawyer with the Ministry of Justice representing the director, stated an EIA is meant to identify concerns for a proposed project or activity to mitigate and address concerns. She highlighted it’s the first step in an approval process, which the NRCB considered and outlined mitigation strategies in its 1992 decision.
“By the time something is approved, we’re done with considering the environmental impacts and if we weren’t, we wouldn’t have approved it,” she said.
Simmonds added no application is pending, with the NRCB and Canmore council both approving the development plans. She said the NRCB considered issues such as Wind Valley and wildlife corridors, with conditions indicated in its 1992 decision.
“We can’t have an environmental impact assessment in a vacuum. You can’t say ‘we want an environment assessment of something’. There has to be a purpose for it. … Generally speaking, it’s a pre-condition for an application. Three Sisters couldn’t go to the NRCB until they first had the EIA completed and that triggered the NRCB process.”
Harrison further argued the projects are phased-in, set to happen in stages, and the tourism and recreation activities will gradually come online. He agreed ASPs aren’t activities, but the discretion is ultimately up to the director to refer back to the NRCB to consider a new EIA. She could also send it to the Minister of Environment and Protected Areas with a report and recommendation, he argued.
“What the director decided here wasn’t proposed activities. She decided if these were proposed projects. … The issue is whether the activities in those two approval documents are themselves proposed activities in that they have not already commenced or they are ready to commence.”
There is no timeline for a decision of the court on either matter.
