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Town, Stoney Nakoda file legal arguments for Court of Appeal hearing

The first written arguments were filed to the Court of Appeal for its hearing on the Land and Property Rights Tribunal decisions on Smith Creek and Three Sisters Village area structure plans.
Stewart Creek in Three Sisters Mountain Village last October. RMO FILE PHOTO

CANMORE – The first written arguments were filed to the Court of Appeal for its hearing on the Land and Property Rights Tribunal decisions on Smith Creek and Three Sisters Village area structure plans.

The Town of Canmore and Stoney Nakoda First Nation filed their written arguments – also known as factums – in their attempt to reverse the LPRT’s orders for the two Three Sisters Mountain Village Properties Limited (TSMVPL) ASPs to proceed as they were first presented to Canmore council.

The Town focused its claims on how the LPRT failed to properly apply Section 619 of the MGA retrospectively, the ASPs were new statutory plans rather than amendments, the ASPs weren’t consistent with the 1992 Natural Resources Conservation Board (NRCB) decision and the LPRT failed to give adequate reasons in ordering the ASPs to proceed.

“The Municipal Government Act (MGA) imposes a duty on the LPRT to give written reasons for its decisions and the failure to provide proper, adequate and intelligible reasons will result in the decision being set aside. The LPRT failed to provide adequate or, in some cases, any reasons for the key decision points addressed in the LPRT decisions,” the Town’s factum argues.

The Town was permitted late last year by the Court of Appeal to appeal the LPRT’s decision, but only on nine specific grounds such as the LPRT misinterpreting Section 619 (1), (2) and (5) of the MGA and the ASPs consistency with the 1992 NRCB decision.

The Town’s 177-page factum argues the LPRT’s decisions should be dismissed due to the tribunal improperly ordering the two ASPs to proceed. It also argues with the NRCB approving a recreation and tourism project – which would’ve included a mix of commercial, industrial and residential development – what was proposed by TSMVPL is different than what the NRCB envisioned.

“The Smith Creek ASP and the Three Sisters ASP is a predominantly residential development, with an entirely different proportion and phasing of land uses and anticipated build-out period and to the extent those modifications or details are not acceptable to council they are not required to be approved by council,” the Town argues.

The Town further expresses it believes the ASPs were inconsistent with the NRCB decision, the Thunderstone Lands were not included in the NRCB approval, the phasing was incorrect in relation to the 1994 Implementation Plan and it lacked the amount of affordable housing intended by the NRCB decision.

Legal counsel for the Town concludes if the Court of Appeal rules Section 619 doesn’t apply to the NRCB decision, the LPRT decisions are inconsistent with the NRCB decision and the LPRT misinterpreted Section 619, then the LPRT decisions be dismissed and costs awarded to the Town.

“The LPRT erred in not considering those portions of the NRCB approval which recognized and preserved the Town’s authority under the MGA to adopt or not adopt the ASPs for proper planning reasons and the possibility council was not required to adopt the ASPs in their entirety, as presented,” the Town’s factum argues.

“Both the NRCB approval and Section 619 only require approval at the municipal level to the extent there is compliance with the provincial approval, yet the LPRT’s approach was, essentially, all or nothing.”

Evidence presented by the Stoney Nakoda noted the historical importance of the land to the First Nation that was argued by them in the 1992 NRCB decision. It highlighted how the NRCB Act outlines that the board can determine if adequate Indigenous consultation has taken place and if concerns were considered and addressed.

In its 20-page factum, the Stoney Nakoda argues the Court of Appeal can address honour of the Crown and reconciliation in the Constitution Act as well as how previous decisions impacted Indigenous rights in the present rather than when made in previous decades.

“The ultimate purpose of honour of the Crown is the reconciliation of pre-existing Aboriginal societies with the assertion of Crown sovereignty,” the Stoney Nakoda’s factum stated. “A broad and meaningful application of the honour of the Crown is necessary to advance the goal of reconciliation.”

The Stoney Nakoda additionally argue the LPRT is without the ability to make constitutional decisions, meaning it believes the LPRT erred in its decisions of having the two ASPs proceed.

“Regardless of whether the LPRT has the authority to determine questions of constitutional law under the Administration Procedures and Jurisdiction Act, it is still incumbent on the LPRT, as a decision-maker, to consider and apply constitutional principles in its decision making,” the factum noted.

The factum further states the 1992 NRCB decision didn’t address the Stoney Nakoda concerns and that the “effluxion of time, between the NRCB approval and the ASPs, and the evolution in law governing the assessment and determination of public interest, has an impact on the meaning of consistency for the purpose of Section 619 of the MGA.”

The LPRT decisions went entirely in the favour of TSMVPL as the tribunal noted both ASPs aligned with the 1992 NRCB decision. The tribunal stated 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 given as well as thousands of pages of evidence.

The Town and TSMVPL came to an agreement in late January to pause the mandamus application between the two sides, which had TSMVPL ask 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 has been provided. It had originally been set for June 1.

TSMVPL also has a $161 million lawsuit against the Town and previous council. Thunderstone Quarries has a $63.5 million lawsuit against the Town since it owns lands that are part of the Smith Creek ASP.

The Court of Appeal hearing is on April 3. TSMVPL, the NRCB and LPRT have until Feb. 28 to file their written arguments.