New legislation is a big step forward but leaves much to Cabinet's discretion
On April 28th, the Alberta government tabled the Alberta Land Stewardship Act (ALSA), Bill 36. The bill is a step toward the system of land-use planning promised by Alberta's Land-use Framework. The 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 the ALSA effective.
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 an "escape hatches" that allow for inaction, or uneven application of the law in the face of development pressures. These difficulties are the precisely the problems ALSA is 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.
While every regional plan must contain a vision for the planning region and at least one planning objective, the other important planning tools are remain optional. Each regional plan may contain information relevant to the region including its geography, demographic, economic, environmental, and social characteristics.
The following key elements are optional:
(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.
With respect to implementation, regional plans leave these elements as discretionary options:
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
ALSA outlines possible procedures to create regional plans but leaves them 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.
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.
The Act also embraces the development of market-based instruments to support implementation of the legislation and regional plans. 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 off-sets" 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.
The legislation 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.
In addition to these authorities, 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. The possibility of such an approach, however, would largely depend on the regional plan itself.
Two crucial elements — participation and the management of cumulative effects — are left to the discretion of Cabinet. Leaving these elements as discretionary may provide flexibility to government. 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 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.
The legislature has opportunities through second and third reading to change Bill 36.The government expects ALSA to be passed in its final form later this year.
