The government needs to ensure revisions to the Alberta Land Stewardship Act (ALSA) as proposed in Bill 10 do not result in weak or vague regional plans — and a flood of unwarranted appeals.

On March 1, 2011 the Government of Alberta (GOA) introduced Bill 10, which proposes several amendments to the Alberta Land Stewardship Act (ALSA) passed in 2009. Over the past year, the government has faced increasing criticism that many of ALSA's provisions are attacks on property rights. Chief among these provisions was the use of "conservation directives," which some critics argued would allow the government to extinguish title to land or mineral rights without compensation. Given the nuances at play, Water Matters believes that the government would be wise to invite legal experts to present to a specific legislative committee to revise Bill 10, rather than throw it directly to the daily barbs and attacks of the legislature. To understand our call for a legislative committee, we offer some history and context below.

As calls to repeal ALSA altogether grew loud in 2010 and 2011, the government promised it would make changes to ALSA in the spring session of the Legislature. These changes have arrived in the form of Bill 10. Bill 10 very much focuses on access to appeal for private rights holders, which is a step in the right direction. However, without clarification, the potential volume of appeals could scare the government into ensuring the regional plans of the Land-use Framework are more like high-level policy goals rather than regulatory instruments that ensure activity in a given area meets specific goals.

At stake is whether ALSA will be a robust law that enables Alberta to tackle our cumulative impacts, or another limp policy masquerading as law. This could be the difference between strong regional plans that ensure roads and other disturbances in a watershed stay under a management threshold versus another broad policy goal that merely asks municipalities and industry to aspire to keep roads down. The former situation is specific and enforceable with a real chance of achieving success. The latter case could handicap the Land-use Framework (LUF) altogether, adding it to the dust heap of previous failed planning processes.

To understand how the regional plans will be affected, it is important to walk through key changes proposed for ALSA. Bill 10 proposes the following modifications to the original Alberta Land Stewardship Act:

• Changes to the purpose section (Section 1) which add that the "...government must respect the property and other rights of individuals and must not infringe on those rights except with due process of law and to the extent necessary for the overall greater public interest."
• A clarification of "statutory consent" designed to clarify powers of expropriation.
• A new section 15(1) that allows private title holders to "apply for variance" to allow development not consistent with the plan. This would be allowable where the activity is consistent with the Act and the plan's intention, and where an unfair burden would be placed on the applicant should the activity not be allowed to proceed.
• Section 19.1 states "(a) person has a right to compensation ...." when property rights are affected by the plan. This section defines "compensable taking" as "the diminution or abrogation of a property right, title or interest giving rise to compensation in law or equity" (section 14 of the Bill proposing a new s.19.1).
• Section 19(2) allows a person "directly and adversely affected by a regional plan" to request a review of the regional plan.
• A new change to section 57 of ALSA allows for the minister to issue directives to the stewardship commissioner.

There has been a mixed reaction to Bill 10. University of Calgary law professor Nigel Bankes has written about the potential for a "regulatory chill" given the opportunity to apply for a variance, seek compensation under section 19.1, or seek a review of the regional plan in question. Bankes argues that government may choose to develop plans that are weak or vague in order to ensure these mechanisms will never be used. While this avoids a regulatory hassle, it could defeat the purpose of actually being able to manage the conflicting land-uses that are at the heart of the LUF.

Lawyer Keith Wilson has argued, most recently on Alberta Primetime, that while there is recourse to decisions made at the director level, there is no recourse to decisions made at the cabinet level. If this is true, individuals concerned by ALSA's powers over private property will find little comfort in Bill 10.

More than just private property concerns

While Bill 10 raises the potential for appealing on the basis of property rights concerns, it seems to further entrench a paradox with respect to the public interest. One of the core purposes of the LUF is to ensure the future of commonly held values that are not secured in private property, private title or the actions of the free market. Ensuring we have clean water, an abundance of agricultural soils, and open spaces is not achievable by only viewing matters through the lens of property rights or the market place, yet the government has continued to hold a fairly paternalistic position that it will make the right decisions on these matters, and that Albertans should not have a right to appeal on whether a plan is achieving the goals set out by Albertans in the consultation process.

Underlying Bill 10's new appeal mechanisms for affected private interests is recognition of two principles that should apply equally to public lands and the goals set out in the plan for the overall public interest. The first is that government gets things wrong occasionally, and individuals should be able to point this out formally through appeal to help the government correct its course. The second is that these corrections should be made in a timely manner; it is not adequate to ask individuals to wait several years to be heard.

When it comes to public land interests or achieving the broad goals laid out in ALSA for the public good, there are no appeal mechanisms or corrective measures that concerned citizens can use to appeal actions that are not meeting the stated goals of the plan.  If the province fails to meet a certain threshold and does not plan to do so, a concerned citizen has little recourse other than to wait for the five-year review of the plan. One could register a complaint with the land-use secretariat, but this avenue cannot be defined as an appeal mechanism compared to the strength of the provisions offered in Bill 10 to private title holders.

Government has continued a paradoxical stance by taking several steps to show it is willing to be responsive to private interests, but its perspective toward appeals in the public interest remains paternalistic. If you think your watershed on public land is being trashed and ask the government to review the activity or the regional plan, the response may be, "Sorry, you'll have to wait for the five-year review." Despite the substantial appeal mechanisms in Bill 10 to address concerns about private property rights, appeals in the public interest are still left twisting in the wind as usual in Alberta.

Getting Bill 10 Right

It is important to recognize how far ALSA has taken us. For decades, planning was disintegrated in Alberta. Municipalities made planning and development in their jurisdictions, while public lands saw a hodge-podge of development, occasionally with Integrated Resources Plans that were never reviewed. The Energy and Resources Conservation Board plowed ahead with approvals largely irrespective other departments and municipalities. ALSA has the potential to create land-use plans that compel these formerly disparate planning processes together to ensure the cumulative impact of land use does not affect Alberta's long term sustainability.

Bill 10 is another step in this direction, but the GOA should be mindful of the limits of its own imagination, and consult significantly to ensure Bill 10 changes ALSA for the better. To this end, Water Matters believes the government would be wise to bring Bill 10 to legislative committee first, rather than forcing it through the Legislature where every change is met with the drama of political theatre rather than the spirit of inquiry that can ensure the appropriate revisions are made.

A committee review of Bill 10 could hear presentations on:

• Specific changes that would ensure new appeal mechanisms apply equally to decisions by directors, an individual minister, and cabinet
• A review of the appeal mechanisms, to ensure they are not overly broad or redundant, and so avoid "regulatory chill" or flooding the secretariat with appeals and applications for variance that are unwarranted, or could not occur under the existing Municipal Governance Act or other current legislation;
• A balanced mechanism that allows citizens to appeal in the public interest, but which wards off spurious applications.

Holding such hearings in committee would send a strong message that the government wants to get Bill 10 right with Albertans, not merely pass a version that is tolerable.

For the Land-use Framework to succeed, we need to build trust as much as procedure to ensure the trade-offs between land use and environment protection are accepted. Bill 10 has taken several steps in that direction, but the last few may be the most important. Taking Bill 10 to a legislative committee to refine these final changes is a way to bring it home.

References

Nigel Bankes. Regulatory chill, weak regional plans, and lots of jobs for lawyers: the proposed amendments to the Alberta Land, posted March 4, 2011. (accessed March 6, 2011).

Wilson, Keith, comments on Alberta Primetime posted March 11, 2011. (accessed March 14, 2011).

Government of Alberta. 2011. Bill 10 Amendments to the Alberta Land Stewardship Act. Government of Alberta, Edmonton. 2011. (accessed March 4h, 2011).