+ RMA Rural Municipalities
of Alberta

Resolution 5-23F

Municipal Involvement in Quasi-Judicial Agencies

Date:
November 8, 2023
Expiry Date:
December 1, 2026
Active Status:
Active
Sponsors:
Leduc County
District:
3 - Pembina River
Year:
2023
Convention:
Fall
Category:
Planning and Development
Status:
Accepted in Part
Vote Results:
Carried
Preamble:

WHEREAS the Government of Alberta (GOA) has established a number of arms-length, quasi-judicial agencies, such as the Alberta Utilities Commission (AUC) and the Natural Resources Conservation Board; and

WHEREAS these quasi-judicial agencies act on behalf of the GOA and make decisions that impact the lives, property and environment of communities throughout Alberta; and

WHEREAS municipalities are not provided the opportunity to meaningfully engage in quasi-judicial agency-led project approval processes, with current engagement opportunities being limited to public hearings; and

WHEREAS quasi-judicial agencies do not respect or balance local considerations when reviewing project approval applications, including municipal land use bylaws, municipal development plans and zoning requirements; and

WHEREAS quasi-judicial boards give more weight to the applicant than the local municipality that is supposed to govern the land use in that area; and

WHEREAS residents do not understand quasi-judicial agency approval processes and often mistakenly go back to the local municipality for project-related information; and

WHEREAS little consideration is given to the accountability of these quasi-judicial agency-approved developments when they reach end of life or go bankrupt; and

WHEREAS recent interim information requirements added to AUC Rule 007, addressing agricultural land, viewscapes, and reclamation in renewable energy project applications are a first step towards better aligning project approvals with rural municipal priorities;

Operative Clause:

THEREFORE, BE IT RESOLVED that the Rural Municipalities of Alberta work with the Government of Alberta to ensure coordination and/or consideration between municipal land-use planning processes and bylaws and quasi-judicial agency approval processes, establish more meaningful engagement between local municipalities and quasi-judicial boards and agencies, and ensure legislative mechanisms and processes are put into place to hold agencies and the proponents accountable for reclamation of a site from the onset of a project. 

Member Background:

The addition of renewable energy developments is a relatively new issue for quasi-judicial boards that make decisions on these development applications. The boards and commissions are constantly striving to learn and improve their decision-making processes and decisions. We appreciate and commend the government, agencies and boards for their openness to hear input from local governments to improve these processes for the betterment of all Albertans that we collectively serve.

Leduc County has had limited positive engagement opportunities with quasi-judicial boards and agencies. In 2022, an applicant applied for a solar panel energy project in the County and approval processes went through the Alberta Utilities Commission (AUC). The land selected for the solar energy project was located on prime agricultural land. Leduc County recommended the proponent find land more suitable for a solar energy project, which would save the prime agricultural land for agricultural activities. This feedback was not given proper consideration and the project went ahead as originally intended.

Leduc County’s land use bylaw, municipal development plan and other relevant land-use planning documents were ignored throughout the process. Further, many upset residents contacted Leduc County due to dissatisfaction with the project and the land chosen for it. Administration had to repeatedly explain that, while the project was within municipal boundaries, the municipality was not the overriding authority.

Local municipal land use planning processes and bylaws need to be respected and considered. At a minimum, the local municipality needs to be included at the outset of the application process by being notified and given standing in the hearing.

Having one municipal member on the hearing board would balance provincial and municipal interests in the decision making for these developments. If a municipality is not on the hearing panel, then the municipality should be consulted first before residents are consulted. At this point, municipal land use – including the land use bylaw, municipal development plan – should be considered to make sure there is compatible land uses and that the development fits within the local plans.

Consideration also needs to be given when projects fail. Currently, municipalities are accountable for these sites when they fail, which is unfair given that municipalities are not involved in these projects from the onset. If a quasi-judicial agency such as the AUC or Alberta Energy Regulator approves a development, then that agency or company should be responsible and held accountable for the cleanup when a project fails.

Some possible solutions that would ensure meaningful coordination and consideration of municipal land use plans, municipal input and ensure accountability for reclamation may include but are not limited to:

  • Having a municipal member on a hearing board to balance provincial and municipal interests in decision making for these developments.
  • Using municipal land-use plans and bylaws as the base for decision making on developments.
  • Contacting the municipality at the start of the application and case management process to see if the site is conducive to that type of development or if another site would be more suitable.
  • Including the municipality at the outset of the application process by being notified and given standing in the hearing.
  • Mandating that agencies must obtain input from a municipality before making a decision.
RMA Background:

9-22F: Renewable Energy Project Reclamation Requirements

THEREFORE, BE IT RESOLVED that the Rural Municipalities of Alberta request that the Government of Alberta implement a mandated collection of adequate securities for future reclamation of renewable energy projects on private lands, either by requiring renewable energy project proponents to post a reclamation surety bond as a condition of any renewable energy project approvals or by other means;

FURTHER BE IT RESOLVED that the amount of the required securities be calculated based on data-driven projections of actual reclamation costs to protect municipalities and residents of Alberta from incurring costs associated with the decommissioning of all renewable energy projects.

Click here to view the full resolution.

21-22F: Loss of Agricultural Land to Renewable Energy Projects

THEREFORE, BE IT RESOLVED that the Rural Municipalities of Alberta request the Government of Alberta to work collaboratively on policy that will find a balance between the development of renewable energy and protection of valuable agriculture lands.

Click here to view the full resolution.

6-22S: Responsiveness of Service Delivery by Quasi-independent Agencies in Alberta

THEREFORE, BE IT RESOLVED that the Rural Municipalities of Alberta request that the Government of Alberta review the continued use of unelected, quasi-independent agencies for the administration and delivery of essential public services, with the results of the review published for public examination.

Click here to view the full resolution.

7-20F: Amendments to Municipal Government Act Section 619

THEREFORE, BE IT RESOLVED that the Rural Municipalities of Alberta urge the Government of Alberta to amend Section 619 of the Municipal Government Act to clearly state that the Natural Resources Conservation Board, the Energy Resources Conservation Board, the Alberta Energy Regulator, the Alberta Energy and Utilities Board or the Alberta Utilities Commission must consider municipal statutory land use planning related to the protection of productive agricultural lands when making decisions on licenses, permits, approvals and other authorizations under their jurisdiction.

Click here to view the full resolution.

Government Response:

Alberta Affordability and Utilities

As Minister of Affordability and Utilities, my responsibilities include managing policy for the development of the province’s utilities sector and overseeing a reliable and affordable electricity system for Albertans, as well as overseeing the Alberta Utilities Commission (AUC), which is one of the quasi-judicial agencies referenced in RMA’s report and resolution. As such, I appreciate the opportunity to provide an initial response to the report and resolution as they relate to the AUC.

As you know, in Alberta approval of electricity generation facilities, including renewable energy projects, is the responsibility of the AUC, an independent, quasi-judicial agency of the province of Alberta, accountable to the Alberta Legislature and the public through my Ministry, and is governed by the Alberta Utilities Commission Act. The AUC is tasked with ensuring that all electric facilities are built, operated, and decommissioned in a manner that is fair, responsible, and in the public interest.

The AUC does not determine if or where power generation should occur in Alberta as all utility-scale electricity generation, both renewable and non-renewable, operates in an open and deregulated market and all projects in Alberta are commercially developed by private investors. This means that projects can only advance with the permission of the private landowner who must agree to allow electricity generation projects on their land.

Alberta recognizes renewable energy as an essential component of Alberta’s current and future energy mix. However, the rapid pace of development has led to several issues related to land use, reliability, and municipal involvement which must be examined.

As such, effective August 3, 2023, the Government of Alberta directed the AUC through the Generation Approvals Pause Regulation to pause approvals for new renewable electricity generation projects until February 29,2024. During this time, the AUC will conduct an inquiry to review policies and procedures for the development of renewable generation and provide the findings and recommendations from its inquiry to my Ministry no later than March 29, 2024.

I am pleased to learn that RMA is already participating in the AUC inquiry into the ongoing economic, orderly, and efficient development of electricity generation in Alberta. RMA’s valuable input into the AUC inquiry, in addition to the RMA Member Committee on Quasi-Judicial Agencies Report and Resolution 5-23F, will be taken into consideration by my Ministry following the generation approvals pause as we consider what legislative or operational changes to AUC processes are required to address RMA’s concerns related to consideration of municipal land-use planning and meaningful municipal engagement throughout the approval process for electricity generation facilities, as well as appropriate accountability for agencies and proponents.

Alberta Utilities Commission

We acknowledge and appreciate the importance of the RMA’s resolutions in shaping the direction of development in Alberta.

The AUC is continuing its work in the inquiry into the ongoing economic, orderly and efficient development of electricity generation in Alberta. We note the submission of the RMA in the inquiry relating to matters raised in the above noted resolution, among others. The AUC is currently reviewing all submissions to develop a report on findings related to the topics listed in the Alberta government’s order-in-council. This report is expected to be completed and delivered to the Alberta government by the end of January 2024.

Natural Resources Conservation Board

Thank you for providing the opportunity for the Natural Resources Conservation Board (NRCB) to respond to Resolution 5-23F and concerns of the Rural Municipalities of Alberta (RMA) in general regarding municipal involvement in quasi-judicial agency decisions. We note that resolution 5-23F substantially relates to issues surrounding approval of renewable energy projects under the mandate of the Alberta Utilities Commission (AUC). Having said that, some issues raised in the resolution and the member background may relate to other quasi-judicial boards, including the NRCB.

As you know, the NRCB met with the RMA Quasi-Judicial Agency Committee (QJAC) to discuss RMA concerns on this matter. We appreciate having the opportunity to speak to the NRCB’s role and mandate, including how we interact with your members. The QJAC report fairly represented the bulk of our discussions with the RMA subcommittee. Our response to resolution 5-23F necessarily incorporates elements of the RMA QJAC report as well.

NRCB Reviews under the NRCBA

We note that the RMA QJAC report and recent resolutions from your members primarily focus on the NRCB’s mandate under the Agricultural Operation Practices Act (AOPA). The NRCB also makes public interest decisions under the Natural Resources Conservation Board Act (NRCBA) on large non-energy natural resource development projects. Reviewable projects include forest industry, recreational/tourism, water management, or specific projects prescribed by the Lieutenant Governor in Council. Reviews under the NRCBA are more closely aligned though not identical to approval processes conducted by AUC and the Alberta Energy Regulator, as compared to our mandate under AOPA. Any NRCB approvals issued under the NRCBA must be authorized by the Lieutenant Governor via Order in Council. Once authorized, the approval prevails over any municipal statutory plan or land use bylaw as prescribed in section 619 of the Municipal Government Act (MGA).

The most recent decision was the NRCB’s approval of the Springbank Off-Stream Reservoir flood mitigation project on the Elbow River west of Calgary. This response discusses NRCB’s review process under the NRCBA where appropriate.

Communication

At the outset, the NRCB is pleased that RMA is supportive overall of the Board’s regulatory approach with respect to permitting, compliance, and review activities of confined feeding operations (CFOs) under AOPA. In particular, the fact that AOPA makes municipalities directly affected parties on all CFO applications is considered a key success factor by RMA. In addition, the NRCB has placed a high priority on communicating with RMA members. Field staff, senior management, and the Board have made a concerted effort over the years to engage with RMA and its members. By way of example, Field Services staff routinely meet with municipal development officers, chief administrative officers, and councils to provide information and receive feedback on NRCB’s regulatory framework for delivering AOPA. The NRCB has also requested (on several occasions) a workshop time slot at RMA’s spring or fall convention. A workshop would provide an opportunity for the NRCB to update your membership and provide a forum for discussion on important topics such as the NRCB’s approach in assessing and respecting municipal planning documents. The RMA QJAC report indicated that “…while not a mandatory requirement, the NRCB has a history of working closely with municipalities…”. While the RMA has raised concerns regarding quasi-judicial agency project notification and communication with RMA members, in our view, the NRCB has satisfactorily addressed these concerns.

Perhaps most importantly, the NRCB’s AOPA Policy Advisory Group (PAG) has proven to be an invaluable tool for ensuring timely dialogue between the NRCB, RMA, industry, ENGOs, and government. Since its inception in 2006 RMA has had two delegates on PAG and until fairly recently the president of RMA was one of them. Through PAG, several important issues raised by RMA have been, or are currently being addressed. For example, to address municipal concerns raised at PAG, the NRCB implemented a requirement for applicants to sign a declaration form regarding water licensing. More recently under PAG, a subcommittee has been struck to revisit whether municipal road agreements should be considered in the application process for new or expanding CFOs.

The NRCB routinely conducts information sessions for the public, including municipalities, when reviewing projects under the NRCBA.

Project notification

The NRCB notifies the affected municipality immediately upon receipt of a Part 1 application (applicant intent to apply for permit) which is the first time the NRCB is notified of an operator’s intent to apply for a permit under AOPA. Municipalities are again notified once the more detailed Part 2 application is complete—the municipality is considered a directly affected party on all applications and can submit comments at this phase of the process. Once the approval officer issues the decision, municipalities are again notified and can submit a request for review of the decision.

Under the NRCBA, municipalities are not automatically considered directly affected parties but can apply for standing and can participate in the review process regardless of standing.

Municipalities are not eligible for intervenor funding under either AOPA or NRCBA reviews.

Reclamation

Under AOPA, reclamation plans are not required. However, the NRCB can determine whether a facility is abandoned and AOPA has provisions that allow the NRCB to determine decommissioning requirements for manure storage facilities.

Under NRCBA reviews, reclamation plans are often required in the terms of reference for the project’s environmental impact assessment. The NRCB is a public interest decision maker under the NRCBA and is not the downstream regulator. Most often Environment and Protected Areas (EPA) is responsible for downstream permitting under the Environmental Protection and Enhancement Act and the Water Act, as well as for regulating the project post-NRCB decision. EPA may require reclamation plans depending on the project and is most often the responsible agency to assess reclamation requirements at end of project life.

Municipal planning documents

The QJAC report correctly outlined the NRCB’s approach in assessing municipal development plans (MDPs) and intermunicipal development plans (IDPs) under AOPA. NRCB approval officers are obligated to determine whether an application for a CFO is consistent with the relevant municipal MDP and IDP. If the approval officer determines that the application is inconsistent with land use provisions of the MDP/IDP the application must be denied. Should the denial decision be appealed, the Board (as provided by AOPA) has the discretion to either uphold the denial or approve the application despite the inconsistency with the MDP/IDP. As we outlined in our discussion with the QJAC, the Board exercises this discretion with great caution. For example, Board decisions to approve an application despite an inconsistency with the MDP have occurred where the Board determined that the planning objectives of the MDP can be met simultaneously with the approval.

It is worth noting that frustration expressed by some municipalities is related to NRCB’s assessment of provisions and conditions related to the siting of CFOs in MDPs. The term ‘land use provisions’ is not defined in the MGA or AOPA. As such, the NRCB must determine which planning provisions in an MDP are valid land use provisions. There are instances where an MDP places restrictions or conditions on the siting of CFOs that are not considered to be land use provisions. In other cases, we have seen MDPs that require tests and conditions for the siting of CFOs. Under AOPA, approval officers are directed not to consider MDP provisions respecting tests or conditions related to the construction of or the site for a CFO.

As referenced in the QJAC report:

It is important to note that while not a mandatory requirement, the NRCB has a history of working closely with municipalities seeking their advice on how they can develop their MDPs in a way that will provide some degree of local control over CFO siting without contradicting the NRCB’s approval priorities.

The NRCB will continue its efforts to inform, meet and consult with municipalities on all matters related to our mandate to deliver AOPA, including issues related to MDPs.

For applications made under the NRCBA the statutory direction is generally less prescriptive than AOPA. The NRCBA directs the Board to determine whether a project is in the public interest having regard to the project’s anticipated social, economic, and environmental effects. In reviewing a project, the Board is required to give standing to directly affected persons and will typically give a voice to any party that has an established interest in the project. While no persons are automatically considered to be a directly affected party under the NRCBA, past reviews would suggest that the Board will always extend the opportunity for municipal governments to actively participate in Board reviews. Municipal government participation is particularly helpful in informing the Board’s understanding of municipal planning goals and objectives. As a statutory planning authority and as a ‘person’ in law it can be expected that the municipality will meet the NRCB criteria as a directly affected person and have standing to fully participate in a Board review. The NRCB notes that the very existence of section 619 of the MGA is an acknowledgement that a decision of the NRCB may directly affect the municipality.

Alberta Energy Regulator (AER)

The AER’s initial review of the recommendations within the resolution are as follows:

1) Having a municipal member on a hearing board to balance provincial and municipal interests in decision making for these developments.

  • AER Hearing Commissioners are independent adjudicators, appointed by the Government of Alberta’s Orders in Council on the merits of their qualifications and experience and not on the basis of interests they represent. Hearing Commissioners must be free from conflicting personal and outside influences when making their decisions and must consider each matter on its merits and in accordance with other applicable statutory considerations. Of the large volume of applications the AER reviews each year, very few applications go to the hearing stage. Having a municipal member as a hearing commissioner may not result in the desired outcome for the RMA.

2) Using municipal land-use plans and bylaws as the base for decision making on developments.

  • AER is required by legislation to consider social, economic, and environmental factors as well as interests of landowners when considering applications for energy or mineral development. This, together with its mandate for orderly and efficient development of energy resources as well as public safety, would overlap significantly with municipal land-use planning considerations. In addition, the AER has and will continue to consider relevant land-use planning instruments when raised at AER proceedings.

3) Contacting the municipality at the start of the application and case management process to see if the site is conducive to that type of development or if another site would be more suitable.

  • All applications are posted for public notice at https://webapps.aer.ca/pnoa and municipalities receive direct notice of most applications within their boundaries. Persons, including municipalities, who feel they may be affected by an application may file a statement of concern, which the AER will consider when making decisions about the application.

4) Including the municipality at the outset of the application process by being notified and given standing in the hearing.

  • Municipalities receive direct notice of most applications within their boundaries and may submit a statement of concern against applications that they believe may directly and adversely affect them. Additional details on the SOC process and requirements can be found on AER.ca
  • Municipalities are permitted to request regulatory appeals of decisions made by the Regulator. Additional details on the AER Regulatory appeal process and requirements can be found the AER.ca
  • Hearing notices are posted at https://www.aer.ca/regulating-development/project-application/notices/hearing-notices. Additional information regarding the hearing process is available on aer.ca

5) Mandating that agencies must obtain input from a municipality before making a decision.

  • This would require policy direction from the Government of Alberta and a change to REDA and/or AER rules of practice.

Alberta Municipal Affairs

Certain activities are approved at a provincial level. Often these activities are approved by quasi-judicial boards, which are tasked with balancing a variety of perspectives regarding approvals related to matters with a provincial interest. The GoA recognizes the importance of ensuring that local perspectives are heard during these processes. Depending on the type of development and the specific quasi-judicial board, these approval processes may have more formal opportunities for municipal involvement or may have more informal opportunities. The GoA will continue to ensure that, where appropriate, critical local perspectives are well understood as part of the provincial approvals completed by quasi-judicial boards. The work being done with respect to renewables is a clear indication these concerns are being seriously considered by government.

Development:

In 2023, RMA formed the Quasi-Judicial Agencies Member Committee (QJAC). QJAC proposed several recommendations to improve the approval processes of the AER, AUC and NRCB. QJAC recommendations related to this resolution include:

  • That the GOA and quasi-judicial agencies work with stakeholders to develop a public interest evaluation framework to assess decision-making and engagement processes.
  • That the GOA and quasi-judicial agencies work together and with stakeholders, including municipalities, to regularly adapt approval processes to industry changes.
  • That both quasi-judicial agencies and applicants play a direct role in initial project engagement processes.
  • That agencies review and redevelop current notification systems to better engage with municipalities at the onset of projects.
  • That the AER and AUC adopt NRCB requirements related to aligning projects with municipal development plans.
  • That municipalities have automatic status as directly affected parties and automatic standing at all hearings.
  • These recommendations align with this resolution and support the need for increased and enhanced collaboration between regulators and municipalities.

Both Alberta Affordability and Utilities and Alberta Municipal Affairs mentioned the ongoing inquiry into renewable energy, which RMA participated in. RMA’s input aligned with the ask of this resolution, supporting the need for municipalities to be involved in regulator processes proactively and to be identified as key stakeholders. The submissions made by RMA to the AUC brought together member concerns through resolutions as well as the Quasi-Judicial Agency Committee, which was composed of several RMA members. As this inquiry has not been completed as of January 2024, the RMA will continue to monitor the outcomes of the inquiry in regard to this resolution.

The RMA also appreciates the NRCB’s response to the QJAC recommendations, however there is no indication that any additional measures will be taken to ensure that municipalities participation in and contribution to the project review process will be enhanced.

The AER’s response, while focused on specific examples of possible changes outlined in the resolution background and not on the actual operative clause of the resolution, implies that the current AER approval process either already fulfils the requested changes, or that the changes would have unintended consequences for municipalities. This is disappointing as the work of the QJAC and input from specific municipalities indicates that this is not the case. For example, the AER’s indication that municipalities are notified of new projects in their boundaries may technically be true, but RMA members have explained that the form of notification and the limited project information included makes it extremely difficult and labour-intensive to determine if a project poses local risks or concerns. RMA and its members are aware of the AER’s current processes and are disappointed that there is no initial interest in engaging around how they could be improved.

In March 2024, the AUC released the findings of their inquiry into renewable energy development, and the Government of Alberta announced high level summary of changes that will be made to the renewable energy project approval process in the near future. While details of how these changes will be implemented are forthcoming, they include the following relevant to this resolution:

  • Automatic standing for municipalities in the project approval process.
  • Eligibility of municipalities for cost-recovery linked to approval hearing participation.
  • The creation of a provincially-administered reclamation requirement for end-of-life management of renewable projects.

While these developments are encouraging, it is important to note that they will only apply to AUC regulation of renewable energy projects, and will not impact current NRCB or AER processes.

As a result, the RMA assigns this resolution a status of Accepted in Part and will continue to advocate for a provincewide shift in collaboration between quasi-judicial agencies and municipalities on project approval processes.

Provincial Ministries:
Agriculture and Forestry,
Energy,
Municipal Affairs
Provincial Boards and Organizations:
AUC,
AER,
NRCB
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