Canada: Review, Variance And Compensation Under The Alberta Land Stewardship Act And Release Of The Updated Draft Lower Athabasca Regional Plan

The Alberta Land Stewardship Act (ALSA) was proclaimed in October 2009 and subsequently amended in May 2011. The ALSA divides the Province of Alberta into seven regions and gives Cabinet the authority to make land-use plans for each region (regional plans). The ALSA also creates several policy tools, such as conservation directives which can be used to set aside specific parcels of land under regional plans in order to permanently protect, conserve, manage and enhance environmental, natural scenic, esthetic or agricultural values.

The powers created under the ALSA are broad and have far-reaching implications for industry participants in Alberta. That said, the implementation of the ALSA through regulations and regional plans is an ongoing process that is influenced by stakeholder concerns. It is important for industry participants to keep abreast of the continuing developments in this area to ensure that their interests are properly considered by government, that they are aware of opportunities to challenge regional plans, and that any future project planning in Alberta is carried out with the ALSA and the relevant regional plans in mind.

Review, Variance and Compensation

The ALSA provides that certain persons may request a review of a regional plan, apply for a variance (i.e., exception) to a regional plan, or apply for compensation. The Alberta Land Stewardship Regulation (the Regulation), which came into force on September 1, 2011, sets out the procedure to be followed in the case of such applications.

Any person who is "directly and adversely affected" by a regional plan may request a review of that regional plan. "Directly and adversely affected" means "..there is a reasonable probability that a person's health, property, income or quiet enjoyment of property, or some combination of them, is being or will be more than minimally harmed by the regional plan". Notably, this definition is different and arguably broader than the common law meaning of "directly and adversely affected" under the Energy Resources Conservation Act.

Upon receipt of a request for a review of a regional plan, the Stewardship Minister (the Minister of Sustainable Resource Development) must establish a panel to conduct the review. The panel must make recommendations to the Stewardship Minister who must, in turn, present the panel's report and recommendations to the Executive Counsel.

Any "title holder" may apply to the Stewardship Minister for a variance to a regional plan. A "title holder" includes an owner of land, a person who has an estate or interest in land, and a person who is in possession or occupation of land. However, a "title holder" does not include the holder of a disposition or unit agreement as defined in the Mines and Minerals Act or a contract under section 9(a) of the Mines and Minerals Act.

An application for a variance to a regional plan suspends, in respect of the applicant, the operation of the portion of the regional plan to which the application pertains until a decision on the application is made. The Stewardship Minister may grant a variance if it is consistent with the purposes of the ALSA, is not likely to diminish the spirit and intent of the regional plan, and if refusal to grant the variance would result in unreasonable hardship to the applicant without an offsetting benefit to the overall public interest.

A right to apply for compensation lies with any title holder whose interest in land is the subject of a conservation directive, or any registered owner (of land or freehold minerals) that has suffered a "compensable taking" as a direct result of a regional plan. "Compensable taking" means "the diminution or abrogation of a property right, title or interest giving rise to compensation in law or equity".

The Stewardship Minister shall determine whether an applicant is entitled to compensation and, if so, the amount payable. However, the Stewardship Minister may refer an application to the Compensation Board. An appeal lies to the Court of Appeal from a decision of the Compensation Board on a question of law or fact or both. If the Stewardship Minister determines the application and the applicant does not agree with the result, an application can be made to the Compensation Board or the Court of Queen's Bench for a determination of the matter.

The Updated Draft Lower Athabasca Regional Plan

The Draft Lower Athabasca Regional Plan (LARP) is the first draft regional plan released by Cabinet pursuant to the ALSA. Cabinet released an initial version of the LARP on April 5, 2011 (See Osler Update dated April 7, 2011). On August 29, Cabinet released an updated draft LARP which took into account several concerns that had been raised by stakeholders. This updated LARP differs from the initial draft in three important respects:

  • First, it introduces the concept of a "sub-regional plan" for the south Athabasca oil sands area using a strategic environmental assessment (SEA) approach. No details around this concept were provided, such as the timing for such a SEA, the scope of the SEA, or who would bear the costs of carrying out the SEA.
  • Second, the updated LARP removes hard limits and mandatory management responses for groundwater quality and quantity until there is better understanding of the current state of groundwater in the region. This change reduces the risk for future project proponents that a project will be denied solely on the basis of inadequate understanding of groundwater impacts.
  • Finally, the updated LARP introduces a revised policy respecting land-use in conservation areas. It provides that agreements under the Mines and Minerals Act and dispositions under the Public Lands Act that are valid when the LARP comes into force will be honoured in the new conservation areas. It also specifies that approvals issued before the LARP comes into force will continue to be in effect until they are up for renewal. This change clarifies that existing mineral rights in conservation areas will not be forfeited to the Crown, which was one of the more controversial aspects of the initial draft of the LARP.

Martin Ignasiak is a partner in Osler's Calgary office whose practice focuses on regulatory and environmental law. Katherine M. Murphy specializes in regulatory, environmental and Aboriginal law issues. Sander Duncanson specializes in environmental, regulatory and aboriginal law issues for natural resource development projects. Luke Rasmussen completed his Juris Doctor degree at the University of Toronto.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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