The Alberta Land Stewardship Act (“ALSA”) was proclaimed in force in October of 2009. In a Bulletin entitled “This is Your Land?” we provided a summary of this landmark planning legislation and anticipated that its implementation had the potential to affect property rights in achieving its goals of advancing the public interest. Our Bulletin concluded that conflict with property rights on the implementation of ALSA could create discord.
Discord did not await implementation of regional plans under ALSA. Public concern over the powers ALSA gave to the Alberta Government to affect property rights caused it to introduce Bill 10 earlier this year to amend ALSA prior to the adoption of any regional plans. Bill 10 was followed by the issuance of the Draft Lower Athabasca Integrated Regional Plan (the “Draft Plan”) and the Proposed Lower Athabasca Integrated Regional Plan Regulations (the “Proposed Regulations”). The Government has said it will not bring the Draft Plan or the Proposed Regulations into force until the Bill 10 amendments are passed. This Bulletin addresses the Bill 10 amendments and touches on the Proposed Regulations.
Bill 10 writes a chorus of property rights and due process into ALSA. This chorus starts in s. 1 which is amended to provide that: “the Government must respect property rights and other rights of individuals and must not infringe on these rights except with due process of the law and to the extent necessary for the overall public interest”. Although this amendment appears in the purposes section, its language is mandatory and may limit the powers ALSA gives the Government to affect property rights. It also invites judicial intervention to ensure the Government complies with its new obligations under Bill 10.
Section 5 of ALSA previously gave the Government complete and unfettered discretion to adopt regional plans, as a legislative act, without any obligation to consult with the public or consider any advice provided to the Government through the public consultation process. Bill 10 repeals s. 5 and replaces it with a mandatory public consultation obligation that must be met before a regional plan can be adopted or amended. There is a further requirement that proposed plans or amendments must be placed before the Legislature prior to becoming law. These amendments appear to be intended to ensure both public scrutiny and accountability on the exercise of the Government’s powers under ALSA. A new s. 15.1 grants procedural rights to “title holders”, broadly defined to include all persons with interests in land, other than Crown mineral lessees. Title holders have a right to apply, at any time, for variances from a regional plan. They may be entitled to dispensation from a regional plan if it would cause them “unreasonable hardship … without an offsetting benefit to the public interest”.
A new section 19.2 gives all persons directly and adversely affected by a regional plan or amendment a right to apply for a review within 12 months of the plan or amendment coming into force. A review request results in a panel being established to conduct a review of the regional plan or amendment. A review report, along with any recommendations, must then be presented to the Government. These new sections (15.1 and 19.2) grant rights of natural justice which may not have been available, assuming Calgary Power v Copithorne1 is still good law. This case law generally denied any right to natural justice when decisions to expropriate were taken pursuant to the exercise of legislative or quasi-legislative powers. A recent example of the exercise of such legislative power is the designation of critical infrastructure by the Government pursuant to the Electrical Statutes Amendment Act, 2009 (Bill 50). Although Bill 10 does not change Bill 50, it makes the exercise of similar powers under ALSA subject to new rights to seek variances and reviews of regional plans to the extent that they adversely affect property rights.
A smaller subset of title holders, who are registered at Land Titles as owners of estates in fee simple to private lands or freehold minerals, are given additional procedural options to remedy a “compensable taking”. They can elect to make a claim to the Land Compensation Board or bring an action for compensation directly to the Court of Queen’s Bench. A “compensable taking” is defined as “the diminution or abrogation of a property right, title or interest giving rise to compensation at law or equity”. Given the concluding words in the definition, compensation may not be available in cases of diminution of value that were not previously compensable at common law. The effect of this provision is likely restricted to clarifying that there is no intention to deprive owners of fee simple estates of any of their rights to compensation that existed prior to ALSA.
Some additional protection is also given to lesser forms of property rights held pursuant to statutory consents. Pre‐existing activities being undertaken pursuant to development permits or approvals under Part 17 of the Municipal Government Act cannot be affected, amended or rescinded by a regional plan. It is not clear whether this grandfathering is available for activities that only require statutory consents pursuant to Part 17 of the Municipal Government Act, or whether statutory consents issued under other legislation, such as the Environmental Protection and Enhancement Act (“EPEA”) or the Water Act, were also intended to be protected. Unfortunately, the Government’s intention in proposing this amendment cannot be found in the Draft Plan or the Proposed Regulations.
Pursuant to the Draft Plan and the Proposed Regulations, a number of new conservation areas are to be created where certain activities, such as oil sands development, will no longer be permitted. However, none of the oil sands tenures that would be rescinded as a result of the Proposed Regulations is currently under development. It is possible to infer from this that the Government intended to grandfather statutory consents in respect of all existing activities. However, the approach taken in the Draft Plan and the Proposed Regulations is equally consistent with an intent not to sterilize more valuable oil sands reserves that are already under active development.
The Proposed Regulations also establish environmental triggers or limits that cannot be exceeded with respect to a number of parameters, such as air and water quality. There is a prohibition against issuing any new statutory consents for activities proposed for the region if these limits or triggers are being exceeded or would be exceeded as a result of any further activity. For existing activities, s. 47(b) of the Proposed Regulations provides that statutory consents for non‐compliant activities will continue, notwithstanding any non‐compliance. Although their statutory consents remain valid, operators of existing activities still must comply with directives from regulators as part of management responses to address the exceedances of triggers or limits. Footnotes to the Proposed Regulations indicate that the legal authority to compel compliance by operators of existing activities derives not from the Proposed Regulations, but a regulator’s “home legislation”. Examples given of “home legislation” include EPEA and the Water Act. If this is the source of legal authority to compel operators of existing activities to follow directives given pursuant to management plans, considerable protection will have been given to existing activities. Under the Water Act, for example, there is a first in time first in right principle. Similarly, pursuant to EPEA, the exceedance of a trigger or limit should only result in directives affecting existing approval holders if the exceedance could not have been reasonably anticipated at the time a statutory consent was issued.
In conclusion, Bill 10 and the Proposed Regulations have written a new chorus of property and procedural rights protections into the revisited ALSA. How these changes will play will, of course, depend on the interpretation given to the new lyrics by critics and the reaction of folk fans.