Bill 36 is a big step forward but is still laced with discretionary escape hatches

On April 28th, the Alberta government tabled the Alberta Land Stewardship Act (ALSA), Bill 36 to implement Alberta's Land-use Framework. The proposed bill empowers the provincial government with new powers to guide regional land-use planning — a step away from conflicting decision-making bodies and the dominance of municipal planning on the landscape. Key amendments, however, will be required to make ALSA effective. ALSA in its current form is long on potential but short on actual commitment to manage the cumulative impacts of development. Without changes, land-use planning risks being too subject to the political winds of the day, rather than the needs of the landscape for a prosperous future for Albertans.

The act

ALSA is largely enabling legislation that creates new authority for the government to direct regional land-use planning. In general, ALSA is highly discretionary, granting new powerful decision-making powers to the provincial government. Laws that grant the government broad discretion can afford decision makers with needed tools to make challenging decisions with respect to the pace and intensity of land use. However, such discretion can be abused by giving decision makers "escape hatches" that allow for inaction, or uneven application of the law in the face of development pressures. These difficulties are precisely the problems ALSA was intended to solve.

Where the Alberta government chooses to implement regional plans, Bill 36 ensures those plans will have the force of law. Each regional plan will bind the provincial government, local government bodies, industry, and the public to implementing or complying with the plan. Significantly, if there is conflict between the regional plan and a provincial law, a regulation, or a regulatory instrument, the regional plan will prevail. The Lieutenant Governor in Council (Cabinet) is also empowered to define planning boundaries for each regional plan.

Mandatory regional plan elements – few and vaguely defined

While every regional plan must contain a vision for the planning region and at least one planning objective, the other important planning tools remain optional. Each regional plan may contain information relevant to the region including its geography, demographic, economic, environmental, and social characteristics.

Optional regional plan elements – everything else

The key promises made in the province’s Land-use Framework are optional under ALSA.

Optional elements for a regional plan include the following:

(a) Policies to achieve or maintain the regional objectives
(b) Thresholds to achieve or maintain an objective for the planning region
(c) Indicators to help measure whether an objective or policy in the regional plan has been achieved
(d) Monitoring
(e) Time frames
(f) Actions to be taken to achieve or maintain the objectives and policies in the event an adverse trend or effect occurs, an objective or policy is exceeded, jeopardized, or has not been achieved

The following elements are discretionary options for implementation:
a) Policy statements to inform, guide, or direct the plan
b) Adoption of regulations to achieve an objective or policy in the regional plan
c) Management actions to achieve an objective or policy
d) Management of the surface and subsurface of land including mines and minerals

Finally, ALSA outlines possible procedures to create regional plans but leaves them as discretionary. Setting the terms of reference, describing public and stakeholder consultations, outlining the role of regional advisory councils, requiring the compilation of conservation areas, and laying out timelines are all discretionary. The newly established Stewardship Minister must review each regional plan every 10 years.

Binding municipalities, agencies, and government departments – with exceptions

ALSA will shape local decision making. Every local government body and other decision-making bodies will be required to review and make any necessary changes to their decision making and municipal plans to comply with the local regional plan. A statutory declaration must accompany the changes when submitted to the newly formed Land-use Secretariat for compliance purposes.

Just as municipalities are bound by regional planning, Bill 36 sets out to amend other legislation such as the Energy Resources Conservation Act to ensure agencies like the Energy Resources Conservation Board abide by regional plans in their decisions. In practice, this could mean that mineral rights disposition may be permissible only if consistent with a regional plan. Similar amendments apply to other acts like the Public Lands Act and the Forest Act. The possibility of such an approach, however, would largely depend on the regional plan itself.

Section 65 of the bill, however, has the potential to weaken regional planning. This section enables Cabinet to exempt municipalities and provincial agencies from regional planning. It is unclear how far these exemptions might extend. Could agencies be empowered to opt out of planning limits? This section should be more tightly defined to eliminate an “escape hatch” that has the potential to render planning ineffective.

New tools

The Act embraces the development of market-based instruments to support implementation of the legislation and regional plans. Under the proposed law, the Lieutenant Governor in Council is responsible to facilitate efforts, including funding, to support conservation easements, conservation directives affecting private land, and other instruments such as ones that protect the environment, scenic values, or agricultural lands.

The legislation also makes way for the development of regulations that will support the creation of a program promoting the establishment of "stewardship units" and "conservation offsets" as well as a "transfer of development credit" (TDC) scheme. While the legislation leaves the classes, nature, and application of such units or offsets to regulations, it indicates they can be held, sold, traded, exchanged, leased, or assigned among land users. A TDC scheme, for example, could apply following the designation of a conservation area within a regional plan to protect the environment, scenic values, or agricultural lands.

New land-use oversight body

The legislation also officially creates the Land-use Secretariat, which will be headed by a stewardship commissioner. The mandate of the commissioner is to prepare and direct the regional planning process, coordinate regional and sub-regional plans, and identify the need for policies and policy integration. The Secretariat is required to monitor the progress of the plans toward achieving objectives.

Legislation leaves large gaps

Three crucial elements —management of cumulative effects, interim measures, and public participation — are left to the discretion of Cabinet. However, ENGOs and others will seek revisions to ensure these elements are mandatory as ALSA goes moves through the legislative process.

On cumulative effects management, ALSA's purpose statement says the bill is designed "to create legislation and policy that enable sustainable development by taking account of and responding to the cumulative effect of human endeavor and other events." However, cumulative effects management is not a mandatory plan element. Thresholds and indicators are mentioned as options but are again not mandatory.

One essential tool missing from the legislation is interim measures to reduce impact of development while planning is occurring. The planning process can trigger a development rush that takes advantage of the old system while the new system is being formulated. Interim measures can restrict development during the planning phase allowing that land to be considered for conservation gains.

Lastly, ALSA exempts regional planning and implementation decisions from judicial review. Unlike ERCB or NRCB decisions that can potentially be subject to a judicial review, ALSA only allows for complaints to the head of Land-use Secretariat. Fundamentally, this shifts traditional powers of the courts to decide remedies for errors in law to a bureaucrat in newly established agency with no track record. This shift removes opportunities for the public to appeal any aspect of the plans.

The legislature has opportunities through second and third reading to change Bill 36. The government expects ALSA to be passed in the spring session of the legislature.