By Kevin J Sabo For the Independent
The contentious Halkirk 2 Wind Project which is supposed to be built north of Halkirk has hit another stumbling block.
A request for appeal of several permits in relation to the maligned and controversial project has been requested, and in a written finding by the Honourable Madam Justice Ritu Khaller on Jan. 25, the request is being allowed, meaning that the case will be before a three Judge Court of Appeal sometime later this year.
The permits relating to the project have already been appealed and were upheld by the Subdivision and Development Appeal Board of the County of Paintearth last year, however the Battle River Group, a group of landowners opposed to the permits, took their request to the courts. Citing an issue of the timing of the permits, along with a potential incorrect interpretation by the Subdivision Development Appeal Board of Section 619 of the Municipal Government Act, the presiding Justice ruled in favour of allowing the appeal.
At the heart of the appeal are 10 permits that were issued within a matter of days of the Alberta Utilities Commission announcing its community engagement on the impact of the project. The Battle River Group, who are requesting the appeal, said in their plea to the court that the County of Paintearth misinterpreted section 619 of the Municipal Government Act when it approved the permits. The section stipulates that permits consistent with the Alberta Utilities Commission (AUC) decision on a project must be approved if the AUC approves the project. The appeal made by the Battle River Group how permits consistent with the AUC decision could have been allowed by the Municipal Planning Commission when the AUC decision was not released until several months later.
The second issue lies within the Subdivision Development Appeal Board.
“The applicants contend that the specific references to “Municipality” in SS 619(2) and (4) exclude the SDAB. Consequently, they submit, it was the responsibility of the County’s Municipal Planning Commission, rather than the SDAB, to determine whether the development permits were consistent with the AUC Decision. The interpretation of s 619 clearly raises a legal issue. The proposed ground has implications for parties appearing before the SDAB on future appeals,” wrote the Honourable Madam Justice Ritu Khaller in her decision.
The SDAB appeal hearing had been split into a preliminary hearing and a merits hearing in the summer of 2018; however the merits hearing was canceled after the appeal board decided that the applicants did not supply sufficient evidence to allow the appeal to proceed. In the Judge’s findings, she found that the SDAB did deny the applicants the opportunity to fully argue that the permits were not fully consistent with the AUC decision, and had they known the merits hearing would be canceled the applicants would have approached the preliminary hearing differently.
Seeing as this matter is before the courts, the County of Paintearth and the Battle River Group have declined comment at this time; however the County of Paintearth CAO Michael Simpson released this statement on behalf of the council:
“Permission has been granted by The Honourable Madam Justice Ritu Khullar for an application to appeal the Subdivision and Development Appeal Board’s decision to uphold 10 development permits granted to Capital Power by the County of Paintearth’s Municipal Planning Commission. Justice Khullar has made a preliminary decision and a panel of three justices will now hear all arguments. The County respects the position of Justice Khullar and the process undertaken when a matter makes its way through the Court of Appeal. We are confident that any decision made by the Court of Appeal in this matter will be consistent with the notion that what is best for the public good is what governs the day. Council is confident in our position that the Subdivision and Development Appeal Board has, to the best of its ability not erred in jurisdiction or process. We look forward to seeing this matter concluded in due course.”