ALBERTA'S PLANNING LEGISLATION A Missed Opportunity

by Phil Elder

Recently, the former Alberta Planning Act was replaced by new planning legislation which is now Part 17 of the new Municipal Government Act. The new law is a mixed blessing: although some important improvements were made, the opportunity to improve the integration of environmental and biological diversity considerations into land use planning was largely lost. The October 1994 Proposals document which preceded the new legislation seemed to promise considerable improvement in the planning regime's treatment of environmental and biodiversity issues. For example, "the patterns of human settlement will be concentrated to ensure...resource conservation, minimal impact on the environment..." As well, "municipalities may request environmental information assessing the impacts of development and identifying appropriate mitigative measures." Lastly, [m]unicipalities should encourage human settlement in such a manner that the integrity of significant ground water recharge areas, wildlife habitats, unique environmental features and significant wetlands are maintained... One might think that regional planning powers could be potentially effective instruments for maintaining biodiversity. Regional plans and planning commissions, however, have been abolished. On the other hand, increased provincial supervision will be provided through new, binding provincial land use policies. The rigour of this requirement depends, however, on the statements' contents, and the Land Use Policies Discussion Paper is overly general and permissive. Under the new legislation, prepared at the same time as the Special Places 2000 proposals, we might expect that sites of unusual biological diversity, or those containing rare or endangered species, could be required by subdivision authorities (now municipally based) to be provided as environmental reserve. Unhappily, environmental reserve powers remain based mainly on the physical safety of development. Biologically important sites qualify to be taken only if they are coincidentally in "a swamp, gully, ravine, coulee or natural drainage course", are subject to flooding, or constitute a strip of land abutting a body of water whose reservation is desirable for public access or to prevent pollution. No mention is made of ecological importance as a reason for reserving land. "One might think that regional planning powers could be potentially effective instruments for maintaining biodiversity." The possibility still exists of building public roadways, public utilities, pipelines or transmission lines through reserve land, including environmental reserve, "if the interests of the public will not be adversely affected." Rigorous protection of environmental reserve, therefore, is somewhat lacking. The intended new subdivision and development regulations omit any mention of consideration of biological diversity when making subdivision or development decisions. An opportunity was missed here. The regulation could have included criteria for refusing subdivision for reasons of biological diversity or other environmental grounds. Accompanying tax relief, or in extreme cases where economic use of the parcel was completely compromised, financial recompense, could also have been considered. Lastly, the municipal development plan "may address environmental matters within the municipality" and "may contain statements... regarding development constraints, including the results of... impact analysis." But the land use bylaw is the place where specific power to regulate would sit most comfortably. The inference of regulatory power from the plan's ability to address environmental matters is rather tangential. Given the apparent commitment to greater consideration of environmental and biodiversity factors in land use planning, it seems bizarre that the act confers no new authority for municipalities to require applicants to prepare environmental assessments or to consider biological diversity matters in the subdivision and development process. We must depend on the same limited wording as before. The problem is that, under this wording, many municipalities under the old act either were not too concerned about this kind of question, or else took a conservative view of their powers in this regard, perhaps because of exaggerated fears of legal liability. Something should have been added to the act to make it clear that municipalities are intended to consider this sort of issue. "No mention is made of ecological importance as a reason for reserving land." Although the new legislation could somewhat improve the former situation, it still failed to provide sufficient direction to municipalities to incorporate biological diversity and environmental considerations into land use planning.

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