Proposed Amendments to Alberta's Land Stewardship Act07-Mar-11
After Alberta’s Land Stewardship Act has recently received much attention in both the media and from opposition parties concerning the effect of this legislation and other similar legislation on private property rights, proposed amendments to this Act were introduced in the Legislature on Tuesday, March 1, 2011.
Perhaps not surprisingly, the amendments focus on the crux of previous criticisms; that rights of landowners could be negatively impacted by regional plans brought into force under this Act, without compensation to landowners or without an ability of landowners to object.
Heralding more substantive amendments to the same effect is the proposed amendment to Section 1 of the Act, the Purpose section. If the amendments are passed as proposed, the Act will contain the express purpose that the property and other rights of individuals will not be infringed by the Government without due process of law and only to the extent necessary for the overall public interest.
The proposed amendments to Section 2 follow this path in explicitly indicating that none of the provisions of the Act, any regulation or regional plan made under the Act restricts, limits, reduces of otherwise effects any compensation which may be payable or provided for under any other enactment or otherwise under law or in equity.
The Minister responsible for this Act must also ensure that appropriate consultation has been carried out with respect to a proposed regional plan and must also “lay before the Legislative Assembly” the proposed regional plan before a regional plan is made.
The most substantive change comes with the proposed repealing of section 19 (which previously suggested that compensation rights were limited in relation to the effects of regional plans made under the Act) and its replacement with a new Section 19 and Section 19.1 which outlines the process to be followed to obtain compensation for “Compensable taking”.
This is defined under proposed Section 19.1 as meaning the “diminution or abrogation of a property right, title or interest giving rise to compensation in law or equity”. Persons entitled to compensation has also been broadened to include holders of freehold mineral interests.
Somewhat in contrast to the ilk of the Act as it now stands, the proposed section 19.1 also explicitly provides that owners of property may apply to the Court to determine compensation matters, in spite of the process outlined for a compensation board to hear such matters under the Act.
Also proposed is Section 19.2, which provides for a process for persons directly and adversely affected by a regional plan to request a review of a regional plan (or amendments to a regional plan) after it comes into force.
These proposed amendments may well serve to quell the concerns with respect to this Act’s effect on private property rights.
However, a number of other proposed amendments may diminish the extent to which regional plans co-ordinate land use decisions across the region to which the plan relates.
Proposed Section 15 provides a process by which a property owner can request a variance in respect of any restriction, limitation or requirement under a regional plan so that it does not apply to that particular property. Although the proposed amendments indicate that such variations will only be allowed in limited circumstances, this could create areas within a region were the regional plan does not apply to its full extent.
Also of interest is proposed Subsection 13(2.1) which provides that a regional plan may indicate which portions of it are enforceable as law and which portions are only meant as statements of public policy or direction of the Government that is not intended to have the force of law. This amendment as proposed has the potential to create much confusion especially for municipalities and regulatory bodies whose decisions and directives are to be consistent with regional plans.
These proposed amendments were just introduced and may be changed further as they make their way through the legislative process.