Bill 36: Alberta Land Stewardship Act (Bill 36) received Royal Assent on June 4, 2009 and is set to come into force on proclamation. The Bill is designed to support the implementation of Alberta's Land-Use Framework which was released in December 2008. The regional plans that will be developed under Bill 36 will be binding on the Crown, government departments, local authorities, decision-makers, industry and the public, and may amend or extinguish existing regulatory permits and approvals. This approach represents a significant step-change in land use in Alberta as decisions and regulatory instruments from local authorities and decision-makers will be required to align with regional plans. Resource developers should prepare by actively participating in the consultation and planning process for regional plans and by keeping abreast of developments in their regions of interest.
The Land-Use Framework
After three years of consultation, Alberta's Land-Use Framework (LUF) was finalized on December 3, 2008. The purpose of the LUF is to manage growth, land-use pressures and cumulative effects; reconcile competing demands for land; ensure sustainability of land-use; and integrate land-use policies in Alberta. The LUF outlines 7 basic strategies to improve land-use decision-making:
- Develop 7 regional land-use plans based on 7 new land-use regions that are congruent with Alberta's major watersheds. The Lieutenant Governor in Council will set the terms of reference for the regional planning process and approve the regional plans. All regional plans are expected to be developed by 2012, updated every 5 years and completely reviewed every 10 years.
- Create a provincial Land-Use Secretariat to help implement the LUF and create Regional Advisory Councils (RACs) for each region to give advice on the contents of the regional plans.
- Use cumulative effects management on a regional level. Assessing environmental impacts of new developments on a project-by-project basis will no longer be acceptable.
- Develop policy instruments to encourage stewardship and conservation of public goods.
- Promote efficient use of land.
- Establish an information, monitoring and knowledge system to contribute to continuous improvement of land-use planning and decision-making.
- Include aboriginal peoples in land-use planning.
The LUF also outlines a number of priority actions and provides a timeframe for its implementation. The oil sands are located in the Lower Athabasca Region and one of the priority actions is to develop the Lower Athabasca regional plan by 2010. The Lower Athabasca RAC was established on December 19, 2008. Another priority action was to introduce legislation in the spring of 2009 to support the LUF's implementation (i.e., Bill 36).
Bill 36 – Alberta Land Stewardship Act
Bill 36 received Royal Assent on June 4, 2009 and comes into force on proclamation. Bill 36 is designed to create the legal authority to support the implementation of the LUF. Bill 36 gives the Lieutenant Governor in Council the authority to establish the land-use regions and make regional plans. Bill 36 also outlines the contents of the regional plans, the planning process, and the roles of the RACs and the associated secretariat. Although the RACs and Land-Use Secretariat will provide advice on the regional plans, the Lieutenant Governor in Council has exclusive and final jurisdiction over the content of the regional plans and their subsequent amendments. Bill 36 also creates four new stewardship policy tools:
- Conservation Easement – A voluntary legal agreement between a landowner and a qualified organization to protect and conserve the ecological integrity of a piece of land.
- Conservation Offsets – Measures to counterbalance the effects of an activity (i.e., restoration, reclamation, donation of resources, etc.).
- Transfer Development Credit Schemes– Schemes to direct development away from ecological areas by designating conservation areas and development areas, and the conditions under which stewardship units may be used in conservation areas.
- Conservation Directives – Expressly setting aside specific parcels of land under regional plans to protect, conserve, manage and enhance environmental, natural scenic, esthetic or agricultural values.
While Bill 36 does not create a general right to compensation, compensation can be obtained for lands subject to conservation directives or under other Acts or regulations. Bill 36 includes consequential amendments to more than 25 other Alberta Acts to support regional planning in Alberta and ensure compliance with regional plans. If there is a conflict between Bill 36 and any other Act or regulation, Bill 36 prevails.
The regional plans are binding on the Crown, government departments, local authorities, decision-makers and the public. After the regional plans have been made, Bill 36 requires local government bodies and decision-making bodies, including the Energy Resources Conservation Board, Alberta Utilities Commission and Alberta Environment, to review their regulatory instruments to ensure compliance with the regional plans.
Of particular interest to industry is that regional plans may expressly affect, amend or extinguish statutory consents (i.e., regulatory permits, licences, approvals, authorizations etc.) or their terms and conditions for the purpose of achieving or maintaining an objective or policy of the regional plan. However, holders of statutory consents will be given reasonable notice of any changes and be provided with an opportunity to propose an alternative means of achieving the regional plan's objective.
Preparing for the Land-Use Framework's Implementation
The LUF represents a significant step-change in the use of land in Alberta. Future decisions by regulatory bodies will need to align with new regional plans and existing regulatory approvals are not immune from the requirements arising from the LUF's implementation through Bill 36. However, the real implications of the LUF's implementation will depend on the details of the regional plans themselves which have yet to be developed. While Bill 36 provides for the review of regional plans at least once every ten years, regional plans are government policies and cannot be appealed. This highlights the importance of actively participating in the consultation and planning process for these regional plans. Resource developers should take advantage of opportunities to present their views about regional plans and should keep abreast of developments in their regions of interest to effectively prepare for these upcoming changes.
Shawn Denstedt is a partner in the firm's Calgary office. JoAnn Jamieson is a senior associate in the firm's Calgary office. Ryan Rodier is an associate in the firm's Calgary office. Jessica Ng is an associate in the firm's Calgary office.