Dissecting Section 619: the "Canmore Clause"
Photo by Kristy Davison.
The challenges of interpreting Section 619 of the Municipal Government Act (aka the "Canmore Clause") and its application with regards to Three Sisters Mountain Village developments.
This section combines knowledge gathered through interviews and conversations with current and historical experts in planning and politics.
Section 619, also known as the “Canmore Clause” in the Municipal Government Act (MGA), states that if an application subject to an NRCB approval is submitted (this includes every development application that will ever come forward on Three Sisters lands), the municipality has 90 days to adopt it — that is, council must give the application third and final reading without even conducting a public hearing on the topic of any matters that are consistent with the NRCB decision (see MGA Section 619 excerpt at the bottom of this article).
Why would the province attempt to take away the power of a municipality to make decisions about development in its own town, or for the public to weigh in? That is effectively — though inadvertently — what this clause does, and its rationale has been challenged by council and the people of Canmore since it's creation. Below is a look at the history of how the town has dealt with this reality over the past 20 years or so.
Has the 90-day clause ever been applied in Canmore?
No. The town has reviewed and made decisions on three area structure plans put forth by Three Sisters Mountain Village since 619 was introduced: the 2004 Resort Centre ASP; the 2004 Stewart Creek ASP and the PwC/TSMV 2013 comprehensive ASP. During all three of these processes the town and TSMV simply worked out the terms of reference, realistic timelines (18-24 months), and proceeded as they would with the review of any other statutory plans.
Has TSMV ever suggested that they might try to impose the 90-day deadline?
The issue has occasionally been raised over the past 20 years. However, such discussions never led to the town rushing an application forward.
The owners of Three Sisters did launch an appeal to the Municipal Government Board citing 619 in regards to an ASP amendment request on Peaks of Grassi in the late 1990s. Town countered with an appeal stating that nowhere in 619 states that it is retroactive and therefore does not apply. The MGB ruled against the town in this case.
However, in 1997 the court acknowledged that the Town of Canmore indeed has a legitimate case on the issues they raised. To resolve this and avoid years of litigation, the town and TSMV were directed by the province to come to a new understanding about how they would effectively handle the issue of Section 619 between themselves. These discussions resulted in the 1998 Settlement Agreement. This settlement agreement allows TSMV and the Town of Canmore to proceed fairly and democratically in regards to development on NRCB lands.
However, to this day, the question of the applicability of 619 to the Three Sisters NRCB ruling has never received a definitive ruling as it has never been argued or tested in court.
Are you loving this stuff? Read the full leave to appeal here, and an excerpt of key messages here.
Why has TSMV not challenged the Town on this matter in the past?
Most likely because they understand the impracticality of determining the “consistent” and “not consistent” portions of an application. The proposed Resort Centre ASP amendment, for instance, would move away from the NRCB approval by replacing a “resort” component (golf course) with a “residential” component. The NRCB application showed two golf courses in the resort area and the amended ASP would have none.
619 states that an application consistent with an NRCB decision is not subject to a public hearing.
Has council ever omitted public hearings for TSMV applications for this reason?
No. Council has never omitted public hearings because of the Section 619.
Why not?
(1) Councils have believed that the democratic process requires public hearings and they have been prepared to accept any potential appeals that might arise from these hearings and;
(2) It would not only be impractical but essentially impossible to dissect a 50-100 page ASP into “consistent” and “inconsistent” components. The NRCB Decision Report — environmental and social undertakings running to thousands of pages — would need to be evaluated against the application as well: a daunting task by any measure.
Even if such dissection were possible, according to 619(4) a hearing would have to be held only on the “inconsistent” parts of the application — and such a hearing would be a challenge of epic proportions.
