Alberta’s Appellant and Superior CourtsOctober 15, 2009
2010 Legal Check UpDecember 14, 2009
The question of land use in Alberta has quite a history. For most Albertans, one thinks of the tar sands and, in particular, the tug-of-war between conservation of the land and the environment versus the positive effects on the economy and the benefits all Albertans derive as a result. In Southern Alberta, water use and conservation is an ongoing problem and concern. In rural areas around Southern Alberta, the current and future of our agricultural industry is entirely dependant on water and the assurance of its continued availability.
Bill 36, the Alberta Land Stewardship Act (the Act), was passed by the Alberta Legislative Assembly during the spring 2009 session and proclaimed into law on October 1, 2009. The Act has multiple purposes, including allowing the Government to give direction and leadership as it relates to land for economic, environmental and social objectives. This includes planning for current and future needs of the Province.
In summary, the Act divides the Province into seven land use regions; the South Saskatchewan region includes Medicine Hat and surrounding area.
The Act allows Cabinet to implement regional plans for each region. The first regional plan is expected in the next few months for the Northern Athabasca region, which region includes the tar sands. The South Saskatchewan region is next in line for a plan.
Through a regional plan, Cabinet, in its sole discretion, can specify what types of activities are going to be permitted or prohibited on both private and Crown lands.
A regional plan approved by Cabinet affects not only proposed activities, but also existing activities. Activities are defined to include anything that requires statutory consent or anything that, under enactment, must comply with a rule, code
of practice, guideline, directive or instrument. This means that a regional plan can apply to:
- a development permit
- a subdivision plan
- a water license issued under the Water Act to an irrigation district, feedlot, etc.
- a Crown grazing lease
- fee simple ownership (private ownership of land).
The significance to the land owner is that section 11 of the Act allows the statutory consent needed for the activities, including the ones I have listed, to be affected, amended or extinguished. That means if a person’s feedlot operation does not fall within accepted parameters of the regional plan, it may have to be changed until it does fall within those parameters. Depending on the changes required, that may require little effort on behalf of the feed lot owner, or significant effort, such as the relocation of the feed lot.
Given that the Act gives Cabinet such broad powers to impact existing and future rights and interests in land, how compensation to a land owner is dealt with is important.
Section 19 of the Act deals with compensation. In summary, that section states there is no right to compensation, except as may be expressly provided for under Part 3, Division 3 of the Act, or as may be provided for under another enactment.
Part 3, Division 3 of the Act deals with conservation restrictions that could affect one’s land. If a conservation directive is made with respect to one’s land, one may apply for compensation. That compensation can include the drop in fair market value of the land due to the conservation directive determined as of the date the conservation directive became effective, damages for injurious affection as a result of the conservation directive, and damages for other losses specified by the regulations. Any application for compensation has to be made within twelve months of the compensation directive becoming effective.
This part of the Act is very restrictive and does not cover an affected, amended or extinguished right as a result of a regional plan, which is not also as a result of a conservation directive. For that, one needs to turn to other enactments. Unfortunately, even when looking at other enactments for compensation, there are numerous examples where compensation would not be payable. For example, under the Water Act compensation is restricted to a very narrow range of circumstances where Alberta Environment suspends or cancels a water licence. There is no compensation payable if a water licence is suspended under a different statute.
Therefore, it appears that the right of a land owner to be compensated for an affected or extinguished right regarding land is not automatic and may, in fact, be denied.
If a land owner is negatively affected by a regional plan, there is no recourse for that person to the Courts. The Act declares itself to be a matter of public policy. Administrative law principles dictate that public policy decisions of Government are not subject to judicial review. The final decision lies with the Minister and there is no appeal to the Courts. However, an exception is that if a land owner is not satisfied with the compensation received (if any), there is available an appeal to the Courts.
It should be noted that the regional plans can also affect municipalities. Section 20 of the Act requires local governments (cities, towns, etc.) to review their regulatory instruments (by-laws, etc.) and determine which ones need to be changed to bring them in line with the regional plan. The local government then must amend those regulatory instruments which are not in line within prescribed time periods.
The Act is a very broad and powerful piece of legislation that can have far-reaching affects on land owner rights. I understand the regional plan for the South Saskatchewan region is to be released sometime next year. Once released, it will be very important for land owners to obtain and review a copy of the plan to determine what, if any, affect the plan will have on their use of their land and, if to be affected, what steps can be taken to minimize any negative affect. Land owners may wish to consult with their lawyers at such times.