Canmore assessment challenge fails, but appeal court upholds First Nations and community standing

The Alberta Court of Appeal has upheld a director’s conclusion that she lacked authority to require a new environmental assessment for two Canmore development plans, while confirming that a community group and the Stoney Nakoda First Nations were entitled to challenge her decision in court.

In Bow Valley Engage Society v Alberta (Environmental Protection and Enhancement Act, Designated Director), 2026 ABCA 188, released June 10, the court rejected the challenges to the substance of the director’s decision. But it upheld the applicants’ private-interest standing and reversed an order striking their judicial reviews for failure to serve another landowner.

The result separates access to judicial review from success on its merits. The court did not order a fresh assessment, decide that the development was environmentally harmless or grant new project approvals.

A project approved in 1992

Bow Valley Engage Society and the Bearspaw, Chiniki and Goodstoney First Nations, collectively the Stoney Nakoda First Nations, asked the designated director to consider whether environmental assessments were warranted for the Three Sisters Mountain Village and Smith Creek area structure plans. The plans concerned approximately 417 and 380 acres respectively.

In February 2024, the director concluded that the plans were a continuation of the tourism and recreation project approved by the Natural Resources Conservation Board in 1992, rather than a proposed activity within the relevant provisions of Alberta’s Environmental Protection and Enhancement Act. Without that statutory threshold, she found she had no authority to decide whether an assessment was warranted.

The applicants sought judicial review. Three Sisters Mountain Village Properties challenged their standing and argued that their proceedings improperly attacked earlier regulatory and court decisions. A first King’s Bench judge rejected those objections. A second judge later struck the judicial reviews because Thunderstone Quarries Canmore Ltd., which owned land within the Smith Creek plan, had not been served. That judge also rejected the reviews on their merits as an alternative ground.

Standing did not depend on a statutory right to demand an assessment

The appeal court agreed that the legislation did not give outside parties a statutory right to initiate this assessment process. Its referral provisions concerned directors and project proponents. Sending a request and receiving a response could not create a statutory right that the legislation did not provide.

That did not end the standing inquiry. The court held that both applicants had common-law private-interest standing: their interests were sufficiently direct and particular, rather than merely the general interest shared by the public.

Bow Valley’s history of community advocacy and the interests of people living near the plans supported its standing. The First Nations’ asserted Aboriginal rights and treaty rights to hunt, fish and carry on their traditional way of life were also directly engaged. The court rejected Three Sisters’ suggestion that earlier litigation had brought the First Nations’ Aboriginal-rights claims to an end.

The court did not decide whether either applicant also qualified for public-interest standing. Nor was this proceeding an improper attempt to relitigate earlier approvals: it addressed the director’s jurisdiction under a distinct environmental-assessment process.

A landowner’s possible future impact was too remote

Alberta’s judicial-review rule requires an application to be filed and served within six months, including service on every person or body directly affected. Thunderstone argued that its land ownership and participation in the development made service mandatory.

The appeal court disagreed on these facts. A decision that the director had authority to consider an assessment would still leave several steps before an assessment could be required and completed. Even a completed assessment would provide information to regulators rather than itself approve or prohibit the project.

Any possible impact on Thunderstone’s land use was therefore too remote at this early stage to make it directly affected by the jurisdictional decision. The court reversed the striking orders. Because that resolved the service obstacle, it declined to decide the applicants’ constitutional challenge to the rule; it did not invalidate the six-month requirement.

An ongoing development, not a fresh assessment trigger

On the merits, the applicants argued for a broader interpretation of proposed activity. They pointed to the scale of the development, the time elapsed since 1992 and the precautionary principle, and argued that later phases should be considered separately. Three Sisters responded that development had proceeded in phases under the original approval and that the plans remained within its scope.

The court reviewed the director’s decision for reasonableness, asking whether her interpretation and explanation were justified, transparent and intelligible. The statutory definition required consideration not only of whether an activity had started, but also of circumstances involving missing approvals, substantial changes and stages not covered by an existing approval.

The director had considered those criteria, the court found. She reasonably concluded that the work had already commenced as part of the approved project, that no substantial change triggered the provisions and that the current stages were covered. The court accepted her characterization of the plans as continuing construction rather than a new proposed activity for this assessment process.

Whether a new assessment might be wise after decades of development was not the legal test. The court noted that an assessment had been conducted at the project’s outset, that phased development was contemplated and that the developers did not appear to have departed from the original approval’s terms. That reasoning was not a general exemption from future regulatory requirements.

The court dismissed Three Sisters’ appeals concerning standing and abuse of process. It allowed the other appeals only to reverse the service-based striking orders, while leaving the rejection of the judicial reviews on their merits intact. It also noted future opportunities for Bow Valley and the First Nations to participate in subdivision, permitting, development approval and construction stages; it did not decide the outcomes of those processes.