CANMORE – The Three Sisters Village and Smith Creek area structure plans were formally adopted by Canmore council, meaning the long-discussed development on lands owned by Three Sisters Mountain Village Properties Limited will occur.
The adoption comes after the Court of Appeal determined council had to accept the Land and Property Rights Tribunal's (LPRT) previous decisions from May 2022.
The Three Sisters Mountain Village Property Limited (TSMVPL) ASPs, as well as amendments to the Town’s Municipal Development Plan, received council adoption at its Tuesday (Oct. 24) special meeting.
In his opening remarks, Canmore Mayor Sean Krausert emphasized how polarizing the conversation was among the community and noted the lands were annexed from the MD of Bighorn specifically for future development and the 1992 Natural Resources Conservation Board (NRCB) decision meant any development proposal that aligned with it would need to be approved.
He added that legal rights were exercised, due process was given, and highlighted that municipalities are a creation of the province, ultimately meant to follow legislation approved by the provincial government.
“You may not like it that we don’t have discretion on absolutely everything, but those are the rules put in place by the provincial government and we are created by the provincial government. The municipality must follow the rules set down by the democratically elected provincial government.”
Krausert and Coun. Tanya Foubert stated the Town had gone to its legal limit, Couns. Wade Graham and Jeff Mah each expressed concerns.
They both raised issues on consultation with Stoney Nakoda, undermining and wildlife corridors – which are both provincial as opposed to municipal issues – and Mah said council voting down the ASPs in 2021 was a “momentous occasion.”
Mah said Section 619 of the Municipal Government Act – introduced after the 1992 NRCB decision – led to the Town being in a trap with the NRCB decision and it being a “pervasion of the original intent of the NRCB (decision)” that led to the council denied ASPs going to the LPRT.
“Our provincial government’s framework has failed us. The NRCB decision has failed us. The LPRT has failed us,” Mah said. “It’s a dark chapter for Canmore, but I believe this is a long story with much still to be written.”
Foubert said council had done its best to listen to the needs of the community, but the Court of Appeal upholding the LPRT decision didn’t mean it was “invalid or undemocratic.”
“We are a municipality. We are not an independent city state,” she said. “We are only created out of the Municipal Government Act and the province of Alberta and the decisions of the province of Alberta binds us.”
Foubert added it was time to move forward and “turn the page to accept the decision that has been made by the court.”
“I know that’s going to be hard and not what some people want, but no other option is available to us.”
Chris Ollenberger, the director of strategy and development for TSMVPL, noted the emotional aspect for all involved parties from the Town, residents and TSMVPL.
“This isn’t a place we wanted to be or get to or do things. This, unfortunately, is the path that was placed in front of us. To bring this chapter of Three Sisters to a conclusion is a good thing. It allows both the Town and Three Sisters to move on and begin the implementation of housing with the Three Sisters project,” he said.
“It’s clear from the words we heard today with the lack of housing that more housing supply, including that of affordable housing, is a key criteria. Our headspace was never in the outcome of today as an objective. Our headspace was to build a good project and we think the ASPs will end up being a good project.”
Ollenberger said the Three Sisters Village ASP application has already been made to the Town, with a pre-application meeting soon to come. He said an application to the Town for the Smith Creek ASP will soon be made.
He said he expects the details of infrastructure and planning to be ironed out throughout 2024, but estimates construction could begin in 2025.
With the ASPs having now been passed, Ollenberger added TSMVPL’s willingness to work with the community. He said they were able to take some ideas mentioned at the public hearings and implement them into the upcoming conceptual and land schemes.
“There is going to be continued improvements and discussions and refinements over time and we look forward to having those discussions with any citizen that wants to approach us with their ideas,” he said. “Sometimes it’s difficult because there were times when some citizens just said no and that wasn’t a conversation we could enter into meaningfully.
“In terms of being able to change some aspects of our development, I think that door is always open. Perhaps not to the extent some people may like in terms of area, impacts of costs, but we listen to all ideas to see what we can work with.”
A $161 million lawsuit against the Town and the previous council brought forward by TSMVPL remains in place. Thunderstone Quarries also has a $63.5 million lawsuit against the Town since it owns lands in the Smith Creek ASP.
The LPRT ordered the Town to adopt both ASPs in May 2022. The decisions ruled entirely in TSMVPL’s favour and came after 15 days of hearings with more than 110 hours of testimony, more than 5,000 pages of evidence presented, more than 3,000 pages of transcripts and close to a dozen experts being questioned by the five-person tribunal.
The Smith Creek ASP would see an estimated population of 2,200 to 4,500 people and includes about 1,000 and 2,150 residential units. The ASP includes upwards of 75,000-square-feet of light industrial and business space and roughly 125,000-square-feet of retail and commercial space for local services.
The Three Sisters Village ASP could have between 3,000-5,000 residential units – which would depend on the bonus density element – and between 5,500-10,000 visitors and permanent population. It would include up to 602,000-square-feet of retail and business space and about 190,000-square-feet of indoor recreation and entertainment, with 75 hectares of open space and 10 per cent of affordable housing.
The ASP covers about 169 hectares.
During the April 3 appeal hearing, Justices Frans Slatter, Anne Kirker and Beth Hughes raised issues with the Town’s argument surrounding the ASPs consistency and the NRCB decision, Section 619 of the MGA, the 2018 terms of reference and if arguing the passage of time was a collateral attack on the NRCB.
“The NRCB approval could have been, but was not, time limited. … No one appealed it,” the appeal court decision stated.
A staff report stated the Town’s litigation costs for TSMVPL-related cases was about $580,000.
The ASPs will now go ahead without the almost two dozen amendments made to the Three Sisters Village ASP by the previous council at second reading since it rejected the plan at third reading.
The amendments focused on the phasing of commercial and residential, affordable housing and Indigenous relations.
An Oct. 6 letter from Shores Jardine LLP, the law firm representing TSMVPL, asked for $129,600 – which was less than 40 per cent of TSMVPL’s legal fees for the appeals – to be paid for by the Town.
The letter stated the Alberta Rules of Court set the fee schedule and the 2021 Court of Appeal case McAllister vs. City of Calgary “endorsed that a successful party is to be partially indemnified to approximately 40-50 per cent of their costs.”
It noted evidence presented at the LPRT hearings had TSMVPL spending more than $11 million to prepare the two ASPs.
If the Town chose to not pay the request, TSMVPL could seek a cost direction from the court.
The Court of Appeal dismissed the Town’s legal arguments to the LPRT decisions on Oct. 3. It noted “the Town [had] not established a basis upon which we can interfere with the tribunal’s decisions.”
The Town argued on nine grounds to have the Court of Appeal dismiss the LPRT decisions, focusing on the tribunal not properly applying Section 619 of the MGA retrospectively, the LPRT not giving adequate reasons for the ASPs moving forward and the ASPs not being consistent with the 1992 NRCB decision.
“Beyond arguing the tribunal lacked jurisdiction to hear the respondent’s appeal under Section 619 of the MGA, the Town resisted a finding of consistency by emphasizing that the NRCB preserved municipal discretion to ‘refuse the project’. … the tribunal did not accept the Town’s assertion that it had the authority to completely reject the project even if it complied with the NRCB approval. Neither do we,” the appeal court’s decision stated.
The court added “the NRCB approval was expected to govern for several decades” and “the Town’s position, therefore, came down to an argument that the ASPs were simply too different from what was considered and approved by the NRCB to be considered consistent with the NRCB approval.”
Janet Harvey, a communications specialist with the NRCB, noted the board didn’t take any position on the ASPs but was an intervenor due to the 1992 decision being at the core of the development. The Court of Appeal brings full clarity to how the 1992 NRCB decision relates with Section 619 of the MGA, she said.
“The NRCB is pleased that the Court of Appeal found that an NRCB approval prior to 1995 is a continuing fact for the purposes of Section 619(1) of the [MGA],” Harvey said in an email. “This issue has been debated before and we are happy that the court has put this issue to bed.
“The NRCB is also pleased that the court declined to revisit the NRCB’s public interest determination, which resulted in the NRCB approval in 1992. The court affirmed the integrity of NRCB approvals, and that this approval by the NRCB does not have a best before date. The 1992 NRCB approval was not time limited and nobody appealed it at the time.”
Scott Johnston, the press secretary for the Ministry of Municipal Affairs, said in an email the Court of Appeal, which is the highest court in Alberta, ruled that the tribunal followed legislated processes appropriately in this case.
“The decision was made by the independent Land and Property Rights Tribunal, which is committed to supporting decisions that are fair, unbiased, well–reasoned, and thoughtful,” he said. “In deciding these matters, the tribunal followed the legislated process set out in Section 619 of the Municipal Government Act, which included a public hearing where parties had the opportunity to put forward their concerns and arguments.”
An attempt to reach the Stoney Nakoda First Nation and its legal representation weren't immediately successful.
Krausert said with the ASPs now passed, it is now important to move forward constructively as possible to get the best possible outcome from future development.
“After time, I hope we can all adjust to looking forward and turning our attention to how these ASPs that have been approved into the best thing for Canmore – whether it’s the building types, the zoning, the monitoring of wildlife corridors, the management of human use – all of those things lie ahead of us,” he said.
“I think there’s going to be some great benefits to Canmore, but of course, it’s going to take some time and today was a difficult day given the varying emotions.”
