Vast control: New land use apparatus blankets Alberta and concentrates power in the provincial cabinet

8/4/2009

Published in Alberta Oil Magazine August-September 2009
By Cindy Chiasson, Executive Director, Environmental Law Centre

Alberta’s proposed new system of land use planning and management moved closer to fruition with passage of the Alberta Land Stewardship Act (ALSA) during the 2009 spring legislative session. ALSA creates the legal outline for implementation of the Land Use Framework initiative, which has been under development since 2006. The initiative seeks to manage Alberta’s land base on a regional basis to address the cumulative effects of activities.

The cornerstone of this new system is the land use plans that will be developed for each of the seven regions to be established by the provincial government. These plans will identify desired environmental, social and economic outcomes for the region, set thresholds to manage cumulative effects of development, and seek to balance regional and provincial concerns. The plans will be developed by the Land Use Secretariat, a new branch of government created by ALSA, and ultimately given legal effect through provincial cabinet approval. Input into the plans will be provided through the Regional Advisory Council, a multi-stakeholder body for each land use region appointed by the government on a time-limited basis. The government will also carry out public consultation throughout a region during development of its land use plan.

To avoid future conflicts with existing laws and systems affecting land use, and underscore the significance of the new planning system, ALSA has been given precedence over all other provincial legislation. The regional plans, when developed, will prevail over other provincial regulations. In addition, the new legislation amended 27 provincial statutes, including the Municipal Government Act, Public Lands Act and Forests Act, to ensure consistency of those laws with ALSA. The regional plans will be binding on the provincial government, agencies such as the Energy Resources Conservation Board and Alberta Utilities Commission, and municipalities. Decisions of those bodies must be consistent with the applicable regional plans. Municipalities and decision-making agencies will be required to ensure that their bylaws, policies and other regulatory instruments are in compliance with regional plans.

Practically, the new land use planning system means that the regional land use plans will guide and bind the more detailed decision-making that takes place before municipalities, the ERCB and other similar bodies. For example, in considering a well application in the southern foothills of the Rockies, the ERCB must ensure that any decision it makes will be consistent with the regional land use plan ultimately approved by the provincial cabinet for the South Saskatchewan land use region. Similarly, the Natural Resources Conservation Board must ensure consistency with the land use plan for the applicable region when it issues authorizations for confined livestock feeding operations.

This requirement will be more of a challenge for those bodies with province-wide scope, as they must ensure consistency with all seven regional land use plans and make their decisions in accordance with the plan applicable to the matter before them. Municipalities should find this less of a burden, as they will be concerned only with the land use plan for their region.

If decisions do not comply with the land use plan, ALSA relies mainly on appeal processes in existing legislation. Appeal processes have also been created under the Public Lands Act and Forests Act. While this form of appeal is attractive because it does not create new bureaucratic structures, its inherent weakness is the variability of appeal processes available under Alberta laws. Land use decisions will not be subject to one consistent appeal process. The persons who can appeal decisions, rules that will apply and availability of costs will vary depending on the subject matter of the decision being appealed and the applicable legislation.

Where there is no appeal process for a decision that does not comply with a land use plan, a complaint may be made to the Stewardship Commissioner, a government official. Under ALSA, the commissioner has the authority to investigate complaints and then refer issues of non-compliance to the relevant cabinet 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. ALSA prevents any type of judicial review or other court intervention initiated by the public or other interests.

Much of the detail of the new land use planning and management system is still to be determined by government through regulations yet to be created. One of ALSA’s most striking features is the vast amount of control and discretion given to the provincial cabinet. Cabinet controls all aspects, 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.

While regulations have not yet been put in place, work has begun on development of regional plans for the two regions identified as priority areas in the Land Use Framework policy document, the Lower Athabasca region (Fort McMurray oil sands area) and the South Saskatchewan region (the southernmost area of Alberta, up to and including Calgary).

Advisory councils have been appointed for both regions, and public consultation on the planning process has begun in the Lower Athabasca region. 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 completion scheduled for the end of 2011.

The remaining three land use regions will then undergo plan development, to be completed by the end of 2012.

The substance of this new land use planning and management system will emerge as the provincial government brings regulations into force and the first two regional land use plans are developed. It is likely that the process being used in the Lower Athabasca region will serve as the model for the other land use regions.