The Alberta Land Stewardship Amendment Act, S.A. 2011 c.9 (“Amendment Act”) was passed on May 10, 2011 and came into force on May 13, 2011.
The Alberta Land Stewardship Act, S.A. 2009, c. A-26.8 (“ALSA”), as it was originally enacted, was intended to:
- provide a means by which the Government of Alberta could direct and provide leadership in identifying the economic, environmental and social objectives of the Province;
- provide a means to plan for the future, recognizing the need to manage activity to meet the reasonably foreseeable needs of current and future generations of Albertans, including Aboriginal peoples; and
- create legislation and policy that would enable sustainable development by taking into consideration and responding to certain cumulative effects of the activities.
The ALSA attempted to create a single planning process that covered both private and public lands. It consolidated responsibility for land use planning that had historically been divided and spread across different government departments, agencies, and regulatory tribunals. It strived to ensure transparency and accountability in the regional planning process.
The Amendment Act endeavours to clarify the original intent and purposes of the ALSA. A brief discussion of the most significant amendments follows.
(1) Add a qualifying section to the clause identifying the purposes of the ALSA
The Amendment Act revises section 1 of the ALSA to add a provision providing that the Government must respect private property rights as follows:
In carrying out the purposes of this Act ….. the Government must respect the property and other rights of individuals and must not infringe on those rights except with due process of law and to the extent necessary for the overall greater public interest.
The new clause will, in all likelihood, open the door to individuals who believe that their property rights have been infringed to potentially argue in a court application that the infringement of property rights by the Government was more than was necessary for the Government to achieve the particular public interest goal of a regional plan.
(2) Clarify the definition of the term “statutory consent”
The Amendment Act clarifies that various interests are not “statutory consents”, including a certificate of title (section 3 of the Amendment Act adding a new subsection 2(2)).
(3) Permit a title holder to apply for a variance in the application of a regional plan
The new section 15.1 of ALSA allows a land title holder to apply to the Minister to vary a regional plan as it affects that title holder. The Minister may grant the variance if the application: (1) is consistent with the purposes of the ALSA, (2) is not likely to diminish the spirit and intent of the plan, and (3) if refused will result in unreasonable hardship to the land titleholder without an offsetting public benefit.
While the procedure for such applications will be prescribed by regulation, the proposed process could well result in a flood of applications.
(4) Provide a ground for compensation on the basis that a regional plan impairs individual rights
Prior to the amendments, there is no right to compensation under the ALSA other than what can be claimed in relation to conservation directives or what may be allowed under other legislation. A conservation directive must be specifically set out in a regional land use plan. The land title holder subject to the conservation directive can apply for compensation from the government within 12 months of getting the notice of the directive. If the title holder and government cannot come to an agreement on the compensation, it would be determined by a provincial board or the courts.
The Amendment Act revises the compensation provisions. First, it changes the onus from, “No person has a right to compensation except in the certain circumstances” to “A person has a right to compensation in the following circumstances”. Payment of compensation under the revised ALSA may be more likely. Second, the amendments broadly defines “a compensable taking” as any negative impact on “a property right, title or interest giving rise to compensation in law or equity”, which in theory would capture a larger number of individuals impacted.
(5) Allow a person directly affected by a regional plan to request a review
The Amendment Act provides that a person “directly and adversely affected by a regional plan” may request a review of the plan. Upon receiving such a request, the Minister must establish a panel and charge the panel with the responsibility of reviewing the plan. It is envisaged that the review procedure will be prescribed by a subsequent regulation.
(6) Enable the Minister to issue binding directives to the secretariat and stewardship commissioner
A new section 57.1 combined with an amendment to section 57 allows the Minister to issue directives to the stewardship commissioner and his or her staff. While this change may be less significant than the other measures discussed above, when read together with those measures, it permits the Minister to assert a greater degree of political control in the development and implementation of regional plans.
The ALSA was a controversial piece of legislation when it was first enacted and continues to generate a great deal of public debate. While the amendments attempt to bring clarity to address concerns about the balance between private rights and public interests, it remains to be seen whether the Amendment Act will accomplish this end. It appears, at least at a first glance, that the amendments shift this delicate balance in favour of private rights. In any event, a transparent, participatory, and accountable regional planning system is certainly in the best interest of Alberta and its people and these amendments may be a step towards achieving that end.