This review sets out some of the concerns about the draft South Saskatchewan Regional Plan (SSRP). These concerns are limited to the impact of the SSRP on irrigation districts.
The draft SSRP deals with matters far beyond the scope of land use. It encompasses economic, environmental and social matters. The Plan has three broad objectives – build the economy, protect the environment and create people-friendly communities. Rather than being a planning document, the SSRP is a policy document setting out a vision for the region and seven outcomes that the Provincial Government wishes to attain. Irrigation districts are required to consider the SSRP in making decisions and implementing bylaws, policy, and guidelines, and conducting operations. The draft SSRP is lengthy, totalling 157 pages. For clarity and ease, it is recommended that the SSRP include a map identifying lands and the approved or discretionary purpose for the lands. More specificity would allow local government bodies, which include irrigation districts, to act in a more purposeful manner in achieving the SSRP's objectives.
The other recommendations are:
- The Government ought to revise the definition of "local government body" so that it conforms to the Irrigation Districts Act definition of irrigation district rather than the being defined as the board of directors of an irrigation district.
- Each board or directors ought to review its bylaws, policies, guidelines, etc. to determine whether it complies with the SSRP and, if not, determine the steps to be taken to ensure compliance.
- AIPA and districts need to persist in their efforts to publicly promote the economic, health and social benefits of irrigation so that the industry can continue to enjoy social licence to operate.
- Each district ought to examine existing and new in- and off-stream water storage options to ensure secure supply of water for Albertans, which is a major objective of the SSRP.
- The SSRP regulations ought to state that a section 37 Notice does not prevent a district from seeking civil remedies such as injunctive relief and damages against a polluter.
Scope of the SSRP
Under the enabling Alberta Land Stewardship Act, the SSRP applies to "local government bodies". The term "local government bodies" is defined to include a board of directors of an irrigation district. This concept of the board of directors of an irrigation district being the legal entity of an irrigation district is out-of-date. Sections 5 and 6 of the Irrigation Districts Act establish irrigation districts as corporations with natural person rights. Its predecessor legislation, the Irrigation Act, repealed, referred to the board of directors of an irrigation districts as being a corporation. The Irrigation Districts Act modernized the corporate status of irrigation districts by recognizing the irrigation district rather than the board of directors as the corporate entity, and also granting irrigation districts natural person powers. ALSA's definition of irrigation district as being the board of directors is a step backward and needs to be updated so that it is same as the Irrigation Districts Act.
As a local government body, the board of directors of an irrigation district is bound by the regional plan "in respect of land, activities, effects, the environment, species and thresholds..." The SSRP's Introduction, Strategic Plan and Implementation Plan are not legally binding upon an irrigation district. Only the regulations are legally binding on the board of directors of an irrigation district.
Regulatory Obligations on a Board of Directors
Section 7 of the proposed SSRP regulations requires the board of directors of a district, "before carrying out any function in respect to the local government body's powers, duties and responsibilities in the planning region, consider the SSRP Strategic Plan and the SSRP Implementation Plan." Technically, a board of directors of a district do not have any statutory "powers, duties and responsibilities" for water management and irrigation. Under the Irrigation Districts Act, the irrigation district, as a corporation, is imbued with statutory "powers, duties and responsibilities" – to convey and deliver water, divert and use water, construct and operate works, maintain the economic viability of the district.
The use of the "board of directors" as being a local government body introduces uncertainty into the obligations of land use planning. The question that will arise is whether it is the irrigation district's obligation or each member of the board of director's obligation for land use planning that the SSRP seeks to effect. Even though the ordinary person may equate a board of directors and the corporate entity as one, the law does not. In law, legal liability for the acts of the corporation adheres to the corporation and not the board of directors. ALSA and, consequently, the SSRP attempt to go behind the legal fiction of a corporation and make directors personally responsible for how a district implements planning decisions.
Within 5 years of the SSRP regulations becoming law, a board must (i) review its regulatory instruments (bylaws, rules, codes of practice, guidelines, documents used for administering the Irrigation Districts Act, policies, plans, objectives, procedures, etc.) and make any necessary changes to ensure that they comply with the SSRP, and (ii) file a statutory declaration stating that the review has been completed and the board is in compliance. So far the draft SSRP does not contain any penalties for non-compliance. It is expect that the final SSRP will. Under the existing ALSA, the stewardship commissioner has the right to apply to the court for an order to amend a board's regulatory instruments to ensure compliance. Under the Alberta Rules of Court, typically, legal costs are awarded against the loser.
In order to insulate a board of directors from liability for non-compliance, it is recommended that an independent, third party conduct an audit of the district's regulatory instruments to determine compliance. Where the directors retain a credible third party auditor, the defence of due diligence may be used to successfully avoid a charge of non-compliance against the directors.
Existing Water Licences Unaffected
Previous issued water licences, even if issued for a purpose inconsistent with the SSRP, remain in effect. The SSRP does not purport to revoke or amend existing water licences. The SSRP will likely impact the issuance of and conditions imposed on new water licences applied for prior to the moratorium. The degree of impact is not known at this stage.
Policy – Strategies & Outcomes
The overall purpose of the SSRP is to promote:
- Healthy economy supported by Alberta's land and natural resources.
- Healthy ecosystems and environment.
- People-friendly communities with ample recreational and cultural opportunities.
The SSRP does not rank or prioritize these outcomes. The challenge for a board will be in attempting to weigh the benefits and burdens of the SSRP strategies and outcomes in carrying out the district's statutory obligations and business that touch upon water and land development matters without favouring one outcome over another.
Role of Irrigation Districts
The plan recognizes irrigation districts provide advice, regulatory administration and strategic recommendations in order to properly manage and use water to enhance agricultural productivity. Further, it recognizes the reality that irrigation districts do not provide water solely for irrigators, but also municipalities, wildlife habitat and recreation facilities, and that this supply of water for non-irrigation uses is an important function of irrigation districts.
The draft SSRP emphasizes the importance of agriculture and irrigated agriculture to the region.
"The economic success of the South Saskatchewan Region is driven in part by a combination of fertile grassland soils and irrigation development that has provided the necessary land base for crop production, livestock grazing, as well as land for the majority of Alberta's cattle feedlot capacity." (p. 14 – Strategic Plan)
The plan is tempered with environmental concerns for the stated purpose of ensuring that the agricultural industry "remains competitive and continues to enjoy social licence to operate." Social licence is a difficult thing to manage. It is dynamic, changing with public beliefs, opinions and perceptions. Since social licence is a criteria to the continued or expanded operation of irrigated agriculture, it will be necessary for the industry to continue and perhaps step up its efforts to inform the public of the economic, social and health benefits of irrigation and local, irrigated agriculture. This is a message that sometimes gets lost amongst other more clamorous voices that vie for the attention of urban citizens and voters.
Secure Supply of Water
Under the draft SSRP, the Alberta Government is committed to the implementation of Alberta's Irrigation: A Strategy for the Future. SSRP recognizes the need for "a reliable supply of quality water supplied through the region's irrigation infrastructure." The SSRP mentions "secure" water sources a number of times and mentions on- and off-stream storage as one of the management tools that can achieve secure supply. This may be an invitation to the industry to raise new in- and off-stream storage options with the Alberta Government so as to ensure secure water supply for all Albertans.
The Irrigation Districts Act is considered by the SSRP to be one of the Alberta Government's legislation tools to protect and management the environment. The environment is a central element of the proposed SSRP. The SSRP states that the South Saskatchewan Region has more than 80% of the province's species at risk, and that local government bodies ought to consider the protection of species at risk in making water or land development decisions. This includes protection from environmental contaminants and the introduction of invasive species.
The SSRP is concerned about ensuring water quality. It sets out surface water quality triggers for tributaries of the South Saskatchewan and Milk Rivers. This is valuable. Part 5 of the SSRP's Regulatory Details Plan grants authority to a designated government minister to determine the measurement of contaminants as measured at a government water quality monitoring station, whether a water quality trigger has been exceeded and the duration that it has been exceeded. This determination is "final and binding" on the Crown, decision-makers, and local government bodies, including districts. By written notice, the minister may direct an affected local government body to take action to respond to any exceedance. The local government body is bound by the notice. There is a requirement upon an official within the designated minister's government department to initiate a management response to the trigger or limit being exceeded.
Due to the wide power of the designated minister to issue a notice of an exceedance to a district, there is concern that the minister could force a district to accept contamination of its water supply. For example, where a developer or municipality discharges wastewater or storm water, which exceeds prescribed limits, into irrigation infrastructure, minister could acknowledge the exceedance but notify an irrigation district not to take any action against the municipality, in essence granting the municipality a licence to pollute for a period of time. This binding notification provision may prevent a district from civilly recouping its damages from the polluter. For the sake of clarity, it would be useful if the SSRP regulation explicitly stated that a section 37 notice did not affect or remove an irrigation districts rights to seek civil damages and injunction relief against the polluter to protect its water supply and works. Interestingly, private irrigators, even those who receive licenced water through the works of the district, are not bound by a section 37 notice and presumably have a civil right of action against the polluter.
The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.
© McMillan LLP 2014