CANMORE – The final legal written arguments in the upcoming Court of Appeal hearing between the Town of Canmore and Three Sisters Mountain Village Properties Limited were submitted.
TSMVPL, the Natural Resources Conservation Board (NRCB) and the Land and Property Rights Tribunal (LPRT) made their submission to the court in the leadup to the April 3 virtual hearing to determine the path forward for the Smith Creek and Three Sisters Village area structure plans (ASPs).
Both the Town and Stoney Nakoda First Nation filed their written arguments – known as factums – in late January in their attempts to reverse the LPRT’s orders for the two ASPs as they were originally proposed to Canmore council in 2021.
TSMVPL argued the Town has long been against any development on the lands, necessitating the tribunal giving them the right to move forward with the ASPs.
“For 30 years, the Town of Canmore has effectively sought to oppose the project and impose burdens on the landowners who seek develop,” argues TSMVPL’s factum.
“Landowners need to be able to rely on the development rights that they acquire from provincial tribunals. … There would be no point in going through the exercise of getting a provincial approval, only to have development stymied at the municipal level.”
TSMVPL argued the role of the Court of Appeal is to decide whether the LPRT erred in law or its jurisdiction and not about reversing the 1992 NRCB decision, re-examining evidence heard by the LPRT and debating the merits of Section 619 of the Municipal Government Act (MGA).
The company notes the standard of review is reasonableness, meaning if a decision was reasonable or unreasonable in coming to a decision. If it isn’t, the court could send it back to the decision-maker to look at it once again. The Town would have to show the LPRT’s decisions were unreasonable and that it acted outside of its legislative powers.
“The Court must not engage in a “line-by-line treasure hunt for error.” There is no expectation that the reasons of the LPRT will look the same as those from a court,” argues TSMVPL’s factum. “Failing to mirror judicial reasons is not a sign of an unreasonable decision.”
It stated the LPRT found Section 619 to be prospective rather than retrospective and the NRCB decision has no expiry date.
The Town is arguing on nine grounds, but specifically, the LPRT didn’t have jurisdiction to hear TSMVPL’s appeals and it erred in its legal judgment.
However, TSMVPL argues in its 133-page factum and 812-page evidence file the LPRT met the standard of reasonableness in deciding the two ASPs to be approved.
“The LPRT was reasonable in finding that the Town has no right to veto or refuse the ASPs to the extent of their consistency,” TSMVPL’s legal representation claims. “Town Council did not identify any areas within the scope given to them under the NRCB Decision Report for the basis of its refusal. In fact, Town Council’s debate focused on areas considered and decided by the NRCB.
“The Town must show a ‘fatal flaw’ in the LPRT’s reasoning that is ‘sufficiently central’ to the decisions. The Town has failed to do so.”
The Town was given the right to appeal the LPRT’s decision late in 2022, but only on specific grounds such as the tribunal misinterpreted clauses in Section 619 and the ASPs consistency in comparison to the 1992 NRCB decision.
The LPRT filed an 18-page factum, noting it had no position “on the merits or fairness of its decision” but was attending to explain its policies and its decision.
It highlighted its jurisdiction is outlined in Part 17 of the MGA which allows it to “authorize municipalities to prepare statutory plans and land use bylaws to guide and regulate development.”
The tribunal’s legal representation emphasized in a Section 619 appeal, it has the “ability to consider the public interest should [it] be considered in light of the relevant statutory context” and added, “although municipalities play a central role in land use planning, the Minister of Municipal Affairs and various provincial agencies also have power to approve specific types of land use or development they consider to be in the public interest.”
The LPRT’s decisions went entirely in TSMVPL’s favour, with the tribunal highlighting the ASPs aligned with the 1992 NRCB decision and stating the Town 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 LPRT hearings lasted 15 days and included more than 110 hours of testimony and thousands of pages of evidence.
The Town and TSMVPL agreed in January to pause the mandamus application – a court order – between the two sides, which had TSMVPL asking the Court of King’s Bench to direct the Town to implement the LPRT decisions. The pause means there’s no set date for the mandamus application until after a Court of Appeal decision is provided.
However, to come to the agreement, the Town agreed to abandon further appeals if the Court of Appeal ruled in favour of upholding the LPRT’s decisions.
TSMVPL continues to have a $161 million lawsuit against the Town and the previous council. Thunderstone Quarries also has a $63.5 million lawsuit against the Town since it owns lands in the Smith Creek ASP.
While the NRCB didn’t take a stance in its 29-page factum, it added it “was perplexed that all nine grounds of appeal have been characterized as questions of law or jurisdiction. The NRCB is, fortunately, intervening on a question of law.”
It stated the LPRT found Section 619 isn’t retrospective and “the idea that Section 619(1) may not bind municipalities in relation to pre-1995 approvals is of grave concern to the NRCB,” but raises significant concern the Town and Stoney Nakoda suggest the NRCB approval loses validation and “the validity of the NRCB approval is not before this court.”
“If the question were to be put before the court, not only the NRCB but also the Attorney General of Alberta would need to be full parties. The NRCB Act itself would be under scrutiny.”
The NRCB added while it can approve projects, it doesn’t regulate following an approval but “only the NRCB itself has authority to amend an existing NRCB approval after the appeal period” and “there must be no collateral attack on NRCB approvals.”