Participation in prior proceedings not determinative of current application: Alberta Court of Appeal
The Alberta Court of Appeal has granted applications to intervene in a land development appeal despite one intervenor’s prior involvement in the proceedings before a lower court, due to the intervenor’s status as the regulatory authority that issued a prior approval for development.
In Town of Canmore v. Three Sisters Mountain Village Properties Ltd, 2022 ABCA 274, Three Sisters Golf Resorts Inc. filed with the Natural Resources Conservation Board (NRCB) an application to develop a golf recreation area near Canmore, AB. NRCB approved the project.
Relying on this prior NRCB approval, Three Sisters Mountain Village Properties Ltd. applied for two area structure plans (ASPs) with the Town of Canmore, but the town council refused.
Three Sisters appealed the town’s refusal to the Land & Property Rights Tribunal, which directed the town to adopt the ASP in the form of by-laws.
The town sought permission to appeal the tribunal’s decision and the NRCB sought leave to be added as an intervenor, while Stoney Nakoda Nations sought leave to be added as either a party or an intervenor. The Nations argued that the ASPs covered their traditional lands, which were still currently used for traditional and cultural purposes.
The appellate court granted both applications for intervention.
Contrary to the town’s argument, NCRB’s participation in the proceedings before the tribunal was not determinative of this intervenor application, the court found. Further, the prior NRCB approval continued to be of central importance to the proceeding and the NRCB could provide special expertise, perspective, or information that would be beneficial to the proceedings, said the court. Thus, the appellate court granted NRCB intervenor status as the regulatory authority that issued the prior approval.
As for the Nations, the appellate court dismissed its application to be added as a party. The Nations’ involvement would broaden the scope of the dispute since they would raise additional proposed grounds for appeal, said the court.
However, the appellate court granted the Nation’s application to intervene. While intervenor status should be granted only in limited circumstances at this stage of the proceedings, the Nations were uniquely positioned to address their interests that cannot be advanced by other parties, said the court. The appellate court also understood the Three Sisters’ concerns raised in the application to be added as a party. As such, the appellate court granted intervenor status, but reiterated that the Nations should not raise additional grounds for appeal or otherwise expand the scope of the proceedings.
