The Alberta Court of Appeal has decided that the County of Paintearth SDAB must re-hear 10 appeals on the proposed Halkirk 2 wind power project. Photo by Kevin J. Sabo/Black Press

Halkirk 2 wind project will get new hearings

Alberta Court of Appeal sides with the appellants

  • Jun. 4, 2020 8:00 a.m.

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.

The court decision came May 8 with a new SDAB hearing on the 10 permits to be narrowed in focus to matters not dealt with by the outcome of the Alberta Utilities Commission (AUC) decision. The decision also orders the county to approve all permits that are consistent with the AUC’s decision.

Capital Power first applied for AUC approvals in April 2017 for the project located about 12 km north of Halkirk. It has been moving through the various levels of government since while the county approved 74 development permits August 2017, with 10 of those permits appealed to the SDAB.

The SDAB was to hold a hearing on Oct. 20, 2017. However, there no quorum, so the meeting was adjourned to Dec. 6, 2017. It was decided at that meeting to adjourn any hearing until a decision was made by the AUC, whose hearing was held Nov. 21 to 23.

The new date for the SDAB hearing was set for April 23, 2018 with submitted materials to be at the county office by April 9. The AUC released its approval of the project on April 11, with 11 SDAB applellants requesting the SDAB hearing be adjourned so they could file responses to the AUC decision. The SDAB granted the request with a hearing finally held on June 11, 2018. However, a merits hearing set for July 5 was cancelled.

That’s when the appellants filed an appeal with the Alberta Court of Appeal.

They claimed the SDAB misinterpreted the Municipal Government Act (MGA), questioned whether the SDAB should have issued permits before the AUC decision was rendered, and whether the SDAB breached its duty of fairness.

While the appeals court ruled with SDAB on the first two issues, the justices determined the SDAB was not within its rights on the last issue, according to the MGA, which prohibits dealing with matters already dealt with by a provincial authority.

The justices concluded 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 added the SDAB failed to look into the matter thoroughly enough during the preliminary hearing and determined that the appellants may well have legitimate submissions against the project.

However, by not 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,” wrote landowner Donna Fetaz, one of the appellants.

“(This is) a great win for landowner rights in Alberta.”

For the county’s part, it respects the decision.

“The county has voluntarily provided the judgment on its website so that all county residents can have access to accurate and factual information, in the interests of transparency,” said county Chief Administrative Officer Michael Simpson.

The appeals court ruled for the county on two issues — that the SDAB did have authority under the MGA to grant the permits and that municipalities are legislatively required to decide on development permits within 40 days of receipt of such an application. That meant a decision had to be made prior to the AUC decision.

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