Alberta’s changing land-use planning system

11/24/2009

Published in Wild Lands Advocate, October 2009
By Cindy Chiasson, Executive Director, Environmental Law Centre

The Alberta government has moved closer to implementation of its new land use planning and management system in passing the Alberta Land Stewardship Act (ALSA) during the spring 2009 legislative session. The Land Use Framework, which has been under development since 2006, seeks to manage Alberta’s lands on a regional basis to address the cumulative effects of activities. ALSA provides the legislative structure and authority to anchor this initiative, but many of the details remain to be developed through regulation.

The Land-use Framework document, released in late 2008, envisions a system of regional land use plans for each of seven new land use regions to be established by the province. These land use plans will set out regional objectives, integrate provincial policies and bind decision-makers, such as municipalities and regulatory tribunals. A new governance structure will include a Land Use Secretariat to oversee implementation of the framework and Regional Advisory Councils for each land use region to provide multi-stakeholder input into the regional plans. Ultimate authority is to rest with the provincial Cabinet. Cumulative effects management, more efficient land use, a suite of conservation and stewardship tools, establishment of an information, monitoring and knowledge system, and inclusion of First Nations in land use planning are other planned attributes of the new framework.

About ALSA
In essence, ALSA creates the legal skeleton for the Land Use Framework. It enables the provincial Cabinet to make regulations establishing the governance bodies mentioned above and setting out the process for development of land use plans. The broad scope of discretion given to the Cabinet in ALSA is one of its most striking attributes. Cabinet controls all aspects of the new land use planning system, from the creation of land use regions, to the content, approval and amendment of regional land use plans, and the process for developing these plans, including whether there will be any public involvement.

Another noteworthy aspect of ALSA is the clear priority given to the new planning system. The Act takes precedence over all other provincial legislation and the regional plans, when developed, will have the power of regulations and prevail over all other provincial regulations. The regional plans will bind the provincial government, agencies such as the Energy Resources Conservation Board and Alberta Utilities Commission, and municipalities. Twenty-seven existing provincial Acts, including the Municipal Government Act, Public Lands Act andForests Act, have been amended to ensure consistency with ALSA. Many of these consequential amendments modify legislation to require that future decisions affecting land use are consistent with regional plans.

The Act provides for a range of conservation and stewardship tools that can be used by both government and the private sector on Alberta lands. The provisions dealing with conservation easements were moved from the Environmental Protection and Enhancement Act to ALSA and expanded to allow for protection of agricultural land. New tools include conservation directives, which can be declared in regional plans to protect lands, and market-based options, including stewardship units, conservation offsets and transfer of development credit schemes. The details of these new tools remain to be developed in regulations under ALSA.

ALSA relies mainly on existing appeal processes, and creates new appeal processes under the Forests Act and Public Lands Act. While the advantage of this approach is that it does not create new bureaucratic structures, its inherent weakness is the variety of appeal processes available under Alberta laws affecting land use. This means that land use decisions will not be subject to one consistent appeal process and that persons appealing, relevant rules and availability of costs will vary depending on the subject matter of the decision being appealed and the applicable legislation.

There is no appeal process for a decision that does not comply with a land use plan andALSA prevents any type of judicial review or other court intervention initiated by the public or other interests. Complaints of non-compliance may be made to the Stewardship Commissioner, a government official. ALSA gives the Commissioner authority to investigate complaints and then refer issues of non-compliance to the relevant Minister, government department or municipality. If the Commissioner feels that no other remedy is available, he or she may also apply to the courts for an order to deal with the non-compliance.

How does ALSA measure up?
The Environmental Law Centre has followed and provided commentary on the Land Use Framework initiative from its beginning in 2006, with particular attention to legislative developments. In a previous News Brief article, we set out the Centre’s vision for land use in Alberta: “Land use decisions are made in accordance with sound laws and policies that are protective of the environment and are implemented and effectively applied so to ensure the sustainability of Alberta’s natural capital.” One of the three necessary elements of that vision was a dedicated piece of legislation to deal with land use planning processes. More specifically, we suggested that such legislation should include the following aspects:

• It should be a single, binding Act, with corresponding amendments to existing provincial legislation.
• It should be administered by Cabinet and an administrative secretariat, separate from individual provincial government departments.
• All government departments should be required to conform to regional plans when making land use decisions.
• It should set out decision-making process for land use planning. This should cover identification of provincial and regional priorities and related thresholds and limits; create planning regions and regional planning bodies; establish a process for developing regional plans; and provide for enforcement of regional plans in relation to local decisions.
• It should assign planning responsibilities, create a clear decision-making hierarchy and require local land use decisions to conform to regional plans.

In large part, ALSA meets the basic elements envisioned by the Centre. Where more could have been done, and ideally will be done, is in relation to the decision-making process for land use planning. While the essentials of the process, as described in the Land-Use Framework document, are provided for in ALSA, they are for the most part within Cabinet’s discretion to create and implement. The establishment of the Regional Advisory Councils, creation of the planning process itself, development and amendment of regional plans, and content of those plans, are all either discretionary acts that can be taken by Cabinet or determined by regulations that may be made by Cabinet. As such, the ultimate import of the new land use planning and management system is yet to be seen.

This uncertainty means that the likely treatment of current and potential protected areas in the new planning and system is also unclear. The broad discretion given to Cabinet includes important aspects of the regional planning process, such as the scope and structure of the process, any public communications and consultation, the development of provincial policies to guide land use planning across Alberta, and any environmental, economic or social issues to be considered in the planning process. There are few, if any, limitations or checks on this discretion, which leaves the proposed system very prone to undue political influence unless clear rules and processes are legally established in the regulations to be developed underALSA.

Future steps
While supporting regulations are yet to be enacted, work has begun on development of regional plans for two land use regions. The Land-Use Framework document identified as priority areas the Lower Athabasca region (Fort McMurray oil sands area) and the South Saskatchewan region (the southern-most area of Alberta, to and including Calgary). Regional advisory councils have been appointed for both regions, and public consultation on the planning process has begun in the Lower Athabasca region. The provincial government expects land use plans for these regions to be completed and approved by the end of 2010. Development of plans for the North Saskatchewan region (covering that river basin and including Edmonton) and another region yet to be determined will begin in 2010, with scheduled completion for the end of 2011. The remaining three land use regions will then undergo plan development, to be completed by the end of 2012.

ALSA’s enactment should in no way be seen as an endpoint in the development and implementation of Alberta’s new land use planning and management system. The practical effects of this system will unfold in the coming years as a full regulatory package is put in place by the province and regional plans are developed. Steps taken over the next year in the Lower Athabasca and South Saskatchewan regions may be one of the best indicators of how this system will proceed.