By Kevin J. Sabo
For the Advance
The Alberta Court of Appeals has ordered the County of Paintearth Sub-Division Appeal Board (SDAB) to re-hear 10 appeals related to the Halkirk 2 wind project that is currently being eyed for an area around 12 km north of the village.
Capital Power first applied for Alberta Utilities Commission (AUC) approvals for the project in April of 2017 and has been moving through the various levels of government since that time. The County of Paintearth approved 74 development permits for the project in August 2017, with 10 of the permits being appealed to the SDAB.
The SDAB hearing was too be held on Oct. 20th, 2017, however due to a loss of quorum the meeting was adjourned to Dec. 6th, 2017, at which point the decision was made to adjourn the meeting until after the AUC decision was released.
In the meantime, the AUC held their own hearing between Nov. 21st-23rd, 2017.
A preliminary SDAB hearing date was set for April 23rd, 2018, with written materials relevant to the meeting needing to be in to the County of Paintearth offices by April 9th.
The AUC issued its decision on April 11th, 2018, citing that the project was in the public interest to proceed.
Due to the approval of the project, the 11 appellants requested the adjournment of the April hearing in order to allow them to file responses to the AUC decision.
Another preliminary hearing was set, this time for June 11th, 2018 with a merits hearing being called on for July 5th, 2018. The merits hearing was subsequently canceled by the SDAB.
The appellants filed an appeal with the Alberta Court of Appeals on three grounds.
On the first ground, the appellants claimed that the SDAB misinterpreted the Municipal Government Act.
Particularly, the appellants claimed that the SDAB did not fall under the term “municipality” as defined section 1(1) of the Municipal Government Act and could not then approve the permits.
The court of appeals struck this ground down, determining that the SDAB did in fact have the authority to grant the permits.
On the second ground, the appellants questioned whether the SDAB should have issued the permits before the AUC decision. The Alberta Court of Appeals struck this down as well, citing that municipalities are legislatively required to make a decision on development permit requests within 40 days of receipt.
Section 619 of the Municipal Government Act also says that as long as the permit is, “Consistent with a licence, permit, or approval or other authorization granted by… or the AUC, the municipality must approve the application to the extent that it complies with the licence, permit, approval, or other authorizations.”
What this means is that the County authorizations did not stand alone. If the AUC had rejected the windfarm, the permits would have been nullified, and with its decision to proceed, the SDAB was legislatively required to allow the permits, provided they were consistent with the AUC’s decision.
On the third ground, the Alberta Court of Appeal did side with the appellants.
The third ground questioned whether the SDAB breached, “Its duty of procedural fairness by denying the applicants a reasonable opportunity to make their case about the consistency of the development permits with the AUC decision.”
In this matter, the justices concluded that by canceling the merits hearing, the SDAB did breach its duty of procedural fairness, and the Court of Appeals has ordered the SDAB to re-hear the 10 dismissed appeals.
The SDAB made its initial decision to dismiss the 10 appeals and cancel the merits hearing due to language in Section 619 of the Municipal Government Act, which prohibits an SDAB from addressing matters that have already been addressed by the AUC.
The justices concluded that the SDAB, “Went beyond deciding what matters had been addressed by the AUC. [The SDAB] went on to conclude that the appellants ‘did not identify any inconsistency between the development permit applications before the SDAB and the development approved by the SDAB and the development approved by the AUC’.”
The Court of Appeal found that the SDAB did not look into the matter thoroughly enough during the preliminary hearing, and determined that the appellants may well have legitimate submissions against the project, however without allowing the merits hearing to proceed, the appellants had lost the opportunity to provide their submissions.
“The highest court in Alberta supports the appellant’s right to be heard. The County and appointed SDAB cannot dismiss ratepayers at its discretion. The court has referred back to the SDAB to be reheard the 10 appeals,” wrote landowner Donna Fetaz, one of the appellants.
“(This is) a great win for landowner rights in Alberta.”
In the decision released May 8th by the Alberta Court of Appeal, the SDAB has been ordered to approve the development permits provided they are consistent with the AUC decision, and to hold a hearing on the outstanding 10 appeals that were dismissed, however the scope of the hearing is to be narrowed, not addressing matters which the SDAB has already determined decided by the AUC in their decision.
“The County respects the decision of the courts, “said County of Paintearth Chief Administrative Officer Michael Simpson, in response to the judgment.
“The County has voluntarily provided the judgment on its web site so that all County residents can have access to accurate and factual information, in the interests of transparency.”