All-Seasons Resort Act Regulations and Policy Explained

by Jason Unger

Summary

Core principles of environmental excellence and sustainability are at centre of All Season Resorts policy

All Season Resort Regulations and policy rely heavily on Master Development Plans, non-regulatory environmental assessment and internal department vetting of applications

Policy guardrails of what environmental excellence is in the context of wilderness landscapes is needed

Line of sight from expected outcomes around environmental excellence with coinciding investment expectations is needed

Department capacity to evaluate environmental assessment likely necessitates internal government referrals, the response to which, should be made public.

Introduction

Passage of the All-Season Resorts Act (ASRA) in 2024 set the stage for targeted development of recreational and resort opportunities in the province. Fortress mountain was the first to publish a notice that public comment for a proposed development was open until February 27^th. See it at All-season resorts – Public notice | Alberta.ca

The Act itself (see ELC comments here) set the stage for the identification and authorization of All-Season Resorts, moving review and authorization jurisdiction from various other departments (and the Natural Resources Conservation Board in prescribed stances) to the Ministry of Tourism and Recreation. The recently published regulations and policies set out additional information about how the process will unfold around the All-Season Resort authorizations and the policy context around the development of the resorts.

Prior to the passage of the ASRA, All Season Resorts (ASR) would go through environmental regulatory processes under the Environmental Protection and Enhancement Act, the Water Act, the Public Lands Act and the Natural Resources Conservation Board Act (NRCBA). The Act withdrew jurisdiction over “All Season Resorts” from the Natural Resources Conservation Board through a consequential amendment to the NRCBA. The NRCBA retains jurisdiction over projects “to construct one or more facilities for recreational or tourism purposes for which an environmental impact assessment report has been ordered” (i.e. resorts not identified as an ASR).

The ASRA also shifted jurisdiction over All Season Resort related authorizations to the Ministry of Tourism and Sport. The underlying regulatory structure of authorizations was not otherwise changed (although there are some changes to appeals discussed below).

The ASRA and regulations do provide an additional layer of process, that could be considered an initial planning and screening process, through the use of master development plans. There is also reference to environmental assessment although details about whether assessments will be mandated and the nature of public participation in the EA process could use additional clarity.

The ASR policy is centred on laudable environmental and ecological principles balanced with promoting public access and recreation and promotion of Indigenous collaboration (beyond constitutionally mandated consultation).

While important aspects of “environmental excellence”, sustainability and ecological recognition are embedded in the policy it will be of the utmost importance to ensure environmental assessment and master development plans directly recognize and protect species at risk, ecologically sensitive areas, and direct sustainable recreational activities.

Missing from the legislation (and thus likely more difficult to incorporate) is more direct public participation and standing in a more formal environmental assessment process and the ability for more public hearings for resorts that would have been under the jurisdiction of the Natural Resources Conservation Board (removed by virtue of the ASRA).

The evolution of the All-season resorts process

Regulation of All-Season Resorts centralizes decision-making and creates an initial planning and screening phase for those seeking to invest in prescribed areas. A summary of key touchpoints in the process is set out in Figure 1.

Figure 1: Process around the designation and development of All-Season Resorts

For further context, the ASR Policy itself sets out a 5-step process.

Figure 2: All Season Resort process (ASR policy at p 12)

The designation process

The regulatory approach for All-Season Resorts is set out in the Act and Regulations, but additional policy context is now provided around the designation process. While three designated areas have already been identified, this will provide additional policy context for future areas.

Prior to designation, the policy indicates that there must be alignment with relevant plans (regional and sub-regional) and policies at play in the relevant areas.

The designation process occurs largely interior to government with the Minister recommending to Cabinet that certain areas of public land be designated as “all-season resort areas”. The criteria that are set out in the policy include:

compliance with existing regulations plans and policies (under the Alberta Land Stewardship Act and ASRA);

market demand, economic impact, and tourism integration (strategy alignment and integrated with other destinations and infrastructure);

location and proximity: Airport proximity, transportation networks, gateway communities, accessibility standards;

natural setting and recreational assets: high-quality natural assets that support year-round recreation opportunities;

infrastructure and servicing capacity: utilities access (power lines, water, wastewater);

development readiness;

community and collaborator compatibility: respect for Treaty rights and traditional uses; alignment with community goals and interests; and

environmental suitability and sustainability.

Of particular interest for environmental outcomes is the criteria around environmental suitability and sustainability. For the assessment around “sustainability potential” the policy indicates that site characteristics “support sustainable resort operations and long term stewardship” (with cumulative effects in mind). (e.g. previous disturbed sites, wildlife risk and climate resilience- low-carbon travel).

The policy also states that environmental constraints will be relevant to designation. Specifically, it is noted that “critical environmental limitations” that can’t be effectively mitigated, with examples of flood potential and species at risk being cited.[1] Similarly, sites should have “minimal adverse impacts to connectivity of wildlife corridors”.[2]

Observations on designations

There are important policy indicators around the designation process for “critical environmental limitations”. Ideally these limitations will be identified more specifically such that there will be clarity around treatment of species at risk habitat and specific watershed features. This reflects a key screening mechanism that can be used by government to pre-emptively identify areas where important ecosystem values should be protected.

In applying the policy it will be important to identify both direct and indirect effects on these critical areas, as impacts related to a development may not be limited to the resort area.

Master Development Plans (MDP)

The Act, regulations and policy all provide context around an additional planning instrument in the “Master Development Plan”. Section 143.4 of the Public Land Administration Regulation (PLAR) sets out what is included in the MDP, which includes:

the construction and operation of the resort,
“the accommodation, activities, services and amenities to be provided in the allseason resort area”;
“an evaluation of the environmental effects that may be caused by the construction and operation of the allseason resort development and the activities to be carried out in the allseason resort area and how those effects will be mitigated”;
“an assessment of the allseason resort development’s integration and compatibility with the surrounding landscape and any municipalities and infrastructure in the vicinity of the allseason resort area;”
“a statement that the applicant commits to invest private capital in the allseason resort development within a reasonable time;” and
any other information required by the director”.

The MDP is submitted to the Director (who is appointed under the Act). The Director then decides whether to approve or reject the MDP based on “its completeness, feasibility and alignment with policy and any directives or guidelines issued by the director for all-season resort areas.”[3] Once an MDP is confirmed complete, the Director conducts a “concept review” to determine whether the MDP is to be approved or rejected.

The director must complete the “concept review” within 150 days of the date where the MDP was deemed complete.[4] This period of time can be extended by agreement with the proponent or on the Director’s own initiative for an additional 100 days.[5]

Following the concept review the Director may approve, approve with conditions, or reject the MDP. After approval the Minister may require the proponent to enter a “master development agreement” (“MDA”) setting out the terms and conditions of the development. The MDA may include provisions related to:[6]

(a)    the scope, structure and phasing of the development,

(b)    the lease arrangements, including multiple leases, subleases or rent considerations,

(d)    the transfer or management of assets,

(e)    timelines for the review and update of the master development plan and the master development agreement, and

(f)    consequences for non-compliance with the master development agreement.

Compliance with the MDA is treated as a term or condition of the all-season resort disposition, meaning that the remedies related to non-compliance with the MDA are set out in the PLA.

There is public notice of applications for dispositions for an ASR under the Public Lands Act under section 5 of the regulation. This notice, in effect, triggers participation opportunities that exist under existing laws in Alberta, namely the participation that is feasible through the Public Lands Act, the Water Act and the Environmental Protection and Enhancement Act. [7]

All-Season Resorts Policy regarding MDPs

The policy provides further context around the application process (as “Stage 3”) and reiterates aspects of the regulation in reference to the Public Lands Administration Regulation (ss 9 and 143.9). The policy notes that a proponent is responsible for public engagement and consultation with Indigenous communities.

Specifically, Stage 3b of the process involves the review of the MDP by the Director and final decision-making . This includes the ability to seek modifications and to impose terms and conditions. This stage constitutes the “concept review” as described under the regulations.[8] The plan can then be approved, approved with conditions, or rejected. If the plan is rejected, the written reasons must be provided to the applicant.[9]

The policy goes on to discuss a variety of aspects that are relevant to planning.

Recreational activities must be consistent with the MDP and dispositions and be conducted in a manner that ensures “public safety, human-wildlife coexistence, environmental protection and high-quality experiences.

The resorts must be accessible but at the same time the policy notes that there may be need to control access or require fees to enter a site “to ensure public safety and responsible environmental management”.

The resorts “must avoid sensitive ecological areas unless approved mitigation measures are in place”. The types of permissible activities may be restricted by the department if “deemed incompatible with the objectives of the ASRA or any other applicable legislation.”

Must be planned with a “carrying capacity framework” that sets visitor limits. Based on recreational activity and infrastructure.

Planning includes EA and master servicing plans which help set Environmental and operational thresholds that are incorporated into the MDP.

Staff housing and fire risk mitigation. Adopt and implement firesmart guidelines (resort developer responsible for mitigation on the disposition)

Staff housing – must be adequate, affordable and accessible. Min of 5% of total bed capacity and staff housing plans must be integrated into the MDP.

Alignment with municipal planning objectives, infrastructure capacity and community priorities. – includes alignment or compatibility with land use plans and policies and regional growth strategies, infrastructure and emergency services, workforce housing and transport (and impacts on housing and labour).

Engagement with municipalities will happen in area designation process, municipalities will be invited to participate in interdepartmental review of MDPs and provide feedback.

Observations regarding the MDP

The level of detail around the MDP in the regulations and policy remain quite high level. Guidelines and directives around the nature of environmental assessment and consultation and public participation are key areas for further consideration.

In removing jurisdiction of the Natural Resources Conservation Board over all-season resorts (through related 2024 amendments to s.1 of the Natural Resources Conservation Board Act) the ASRA did not replace the relatively high level of public scrutiny for these projects, including the ability to hold hearings, the ability to award costs for participation and hiring of experts by hearing participants (including interveners) and to provide detailed reasons. While the appeal provisions of the related statutes of the Water Act, EPEA and the Public Lands Act remain in place, any formal legal participation in the process is deferred to Stage 4 and then only for those who are directly affected by a project.

For this reason, there is a need to ensure policy and administration fills the gap of meaningful disclosure and participation at the stage of the MDP. Currently there is a requirement to provide public notice of the application under section 5 of the regulation with a 30 day comment period (that can be extended) an additional 30 days.

There are a variety of areas of the public notice that are not detailed in the regulations as it need only have the information “required by the director”.[10]

There is a need to clarify the process around the provision of information to the public as well as how public comments are to be made (and whether they too will be public). (The Fortress Mountain-related notice provides links to the MDP and environmental assessment).

The staging of “public comment” alongside the government-led “concept review” of the MDP is also potentially problematic. The policy includes a stated principle that of engagement with the “public and Indigenous communities so that decisions reflect the shared interests of Albertans while respecting Treaty Rights and traditional uses or harvesting and traditional use activities”. Additionally, the policy states that “the resort developer will be responsible for carrying out public engagement” and that the “Department will take into account the outcomes of the engagement…in the in the decision-making process”.[11] It is unclear how the “public engagement” is separate and apart from the public comment period under the regulation, which appears to be providing direct comment to the department (as illustrated by the Fortress proposal).

This approach to public engagement relies on the proponent to receive, possibly interpret and communicate the input accurately. This is likely to challenge the integration of clear and meaningful input into decision-making processes.

Public participation in processes such as this should be viewed as an opportunity to test aspects of the environmental assessment and to evaluate the rigour and accuracy of the application, its assumptions and uncertainties. Guidance on how to maintain the integrity of meaningful consultation with the public is needed.

Guidelines around sharing of MDP information is also needed and should include those items set out in s.143.4 of the PLAR (outlined above).

In addition, there is a need to further elaborate on the environmental assessment process, including the scope of cumulative effects to be considered, the identification of uncertainty in the assessment and the underlying assumptions related to any assessment of impacts or mitigation.

Finally, there is no provision in the regulations that require the master development agreement to be published, nor are any of the terms of the agreement mandated to be public. Access to information is dealt with in s.166 of the PLAR and was not amended to include the master development agreements.

Issuance of the all-season resort disposition

The Director has the discretion to issue an All-Season Resort disposition so long as a MDP has been approved and any required master development agreement has been issued.[12] The disposition must be consistent with the MDP and is subject to any terms and conditions under the PLAR disposition.[13]

Participation in decision-making for other prescribed authorizations

Once an All-Season Resorts disposition has been issued other related authorizations may be issued as required under the PLA, Water Act and EPEA. For appeals of decisions made under the Act relating to the PLA, the Water Act or EPEA, the legal process and rights will follow the same track of appeals as under those enactments (with a different decision maker). The ASRA does augment that process slightly insofar as it allows for the consolidation of appeals under the Water Act and EPEA, as well as further consolidation with appeals under the PLA, thereby forming a joint appeal board between the Environmental Appeals Board and the Public Lands Appeal Board.[14]

The panel in these joint appeals may consist of 3 or 5 members with at least one seat being held by a member of the EAB and the PLAB.[15] The appeal board decision is a decision of the PLAB.[16] The hearing and decisions are made under the Part 7 of the PLA (and not the EPEA).[17]

Observations around the regulatory decisions regarding specified enactments

The regulatory approach of the ASRA and related regulations alters where decisions reside for specified enactments.

The layering of government decisions does raise a clear concern around fettering of discretion under specified enactments. The process of having a conceptual approval and potential agreement being entered prior to the regulatory authorization process under specified enactments raises the issue of potential fettering of discretion by the Director.

Compliance and other Matters Dealt with in the Regulations

Breaches of a master development agreement. The regulation sets out that the violation of an agreement or its terms and conditions is deemed a failure to comply with the disposition. As such the potential remedies and fines are dictated by the PLA, PLAR, the Disposition and Fees Regulation.

Enforcement-related provisions of specified enactments, such as EPEA and the WA, apply in relation to the authorizations under those Acts.

The Director may issue directive and guidelines “respecting the application, review, construction, operation, maintenance or compliance of all-season resort developments under the Act or any specified enactment.”¹⁷ This includes (but isn’t limited to “information required to accompany an application,…environmental assessment requirements, …remediation or reclamation required as a result of resort-related activities, or …operational matters, including environmental protection and public safety.”[19]

These directives and guidelines are “advisory” and don’t “create, limit or fetter” discretion under the Act or another specified enactment.[20]

The nature of the disposition may take the form of a lease or any other form,

The Director may authorize subleasing and sub-subleasing subject to any terms and conditions that the Director considers appropriate.

Overall, these additional items are sensible. There is a concern around subleasing and sub-subleasing as this can create obscure compliance and enforcement activities related to the disposition.

Policy direction around All-Season Resorts.

A full review of the All-Season Resorts policy is beyond the scope of this analysis but there are several areas that are worthy of note. Specific areas of interest include a strong focus on “environmental excellence” and inclusion of protecting ecological integrity.

The Ministry of Tourism and Sport will be responsible for:[21]

reviewing proponent-led evaluations of environmental effects;
identifying and mitigating potential impacts on sensitive habitats, wildlife corridors, water bodies, and vegetation; and
integrating climate resilience and natural hazard mitigation strategies in site design and infrastructure planning.

Operations are expected to be “sustainable” through life-cycle assessment, integration of BMPs and certifications and annual reporting.[22] Water conservation, waste reduction, energy efficiency and mitigation of GHG emissions are also highlighted.

The policy highlights areas of environmental accountability noting:[23]

“Resort developers are required to report to the Department on environmental performance, detailing compliance with approved plans and identifying any corrective actions taken;”

“audits, inspections or compliance reviews” may also be conducted to verify performance and to ensure alignment and compliance with regulatory frameworks and plans.

This reporting and audit function does not appear in prescriptive regulation at this stage although these areas may be dealt with through conditions on the dispositions.

Policy inclusion of Indigenous communities

The policy cites the opportunity for collateral benefits of Indigenous economic partnerships, as an optional outcome. The policy recognizes and reflects the duty to consult under the Canadian Constitution with language around meaningful dialogue, integration of Indigenous knowledge and implementation of accommodation measures in alignment with consultation outcomes. The policy sets out consultation expectations for government and requires proponent-led consultation as well as direct involvement of Indigenous communities in the review of MDP (following GOA consultation policies and guidelines).

The policy also highlights opportunities for All Season Resorts to be developed in collaboration with Indigenous communities. The policy notes that “while indigenous involvement is not a mandatory requirement”, the government recognizes its value and will give it thoughtful consideration to applications” demonstrating Indigenous leadership or collaboration.

Conclusion

The All Season Resorts Regulation and policy provide additional insight into the overall process and approach to the authorization of All Season Resorts. The unique regulatory approach to All Season Resorts is one focused on the creation and review of MDP. Compared to similar resorts that might be subjected to the jurisdiction of the Natural Resources Conservation Board (prior to the passage of the ASRA), there are more limited formal legal processes related to hearings and the ability to intervene in hearings. Public participation opportunities in the development of the MDP process are largely proponent-managed and, while environmental assessment of the proposals are embedded in the MDP, it will be incumbent on the public and the decision makers to test the evidentiary basis and assumptions that make up the EA and the rest of an MDP.

The testing of the evidentiary basis of an EA is a foundational aspect of public participation in formal legal hearings and leads to better decision-making. Additional policy guidance is therefore required to ensure a transparent and accountable system of assessing impacts and the efficacy of mitigation measures.

Foundational to the integrity of the MDP process is ensuring that:

methodologies of gathering environmental assessment information are robust and clear;

that any assumptions and uncertainties around the MDP-related information are clearly articulated and discussed; and

that public participation in the process is made meaningful by way of having direct ability to test factual underpinnings and the evidentiary aspects of the MDP (such as areas regarding carrying capacity and ecological integrity).

Standards for environmental excellence will also be needed as this phrasing remains undefined.

Finally, the regulatory approach raises concerns of the department and decision makers fettering discretion around the various regulatory authorizations that follow the approval of the MDP. In this regard, Water Act, EPEA and Public Land authorizations (beyond the disposition) require decision making to occur within the framing of the legislation and should not be biased or fettered by the conceptual approval of the MDP.

Feature Photo: Lake Louise Ski Resort on a Foggy Day by Anita Jeanine Photography (November 2019) unsplash.com

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[1] Policy at p.13.

[2] Ibid.

[3] Reg at s.3(5) & (7)

[4] Reg at s.3

[5] Reg at s.3(6)

[6] Reg at s.4

[7] Reg at s.5(4).

[8] Reg at.

[9] Reg at s.3

[10] ASR Reg. s.5(7) Neither the policy nor the regulations identify the process for providing public comment on an MDP. (Current public comments on the Fortress proposal are done through an online form).

[11] Policy at p. 14.

[12] ASR RegS.7.

[13] ASR Reg s.7(2).

[14] ASRA at s.12 and 13.

[15] Act at s.13(3)

[16] s.13(6)

[17] ASRA (s.13(7).

[19] Ibid.

[20] Ibid. at s.10(3)

[21] Policy at p 7.

[22] Ibid. Water conservation, waste reduction, energy efficiency and mitigation of GHG emissions are also highlighted.

[23] Ibid.

All-Season Resorts: A review of Regulations and policy released around efforts to increase investment in All-Season Resorts.