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PUBLIC UTILITIES - Provincial boards, tribunals and commissions

Monday, September 23, 2019 @ 9:25 AM  


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Appeal by the Province from a decision of the Utility and Review Board determining that prior consultations with the Mi’kmaq did not satisfy the Crown’s constitutional responsibility and adjourning Nova Scotia Power’s Tusket Dam application for three months to allow an opportunity for further consultation. Nova Scotia Power, a public utility, decided to refurbish its obsolete Tusket Main Dam. The project could adversely affect the archeological and fishing interests of nearby Mi’kmaq communities. After consulting with Mi’kmaq representatives, Nova Scotia Power applied, under s. 35, of the Public Utilities Act, for the Board’s approval of its Tusket Dam project.

HELD: Appeal dismissed. The Board correctly concluded that its consideration of Nova Scotia Power’s application was Crown conduct under the Supreme Court’s test. The Board had the authority to determine whether prior consultations satisfied the standard of the Crown’s duty to consult. Nothing in the Utility and Review Board Act, the Public Utilities Act or any other statute demonstrated an intention to exclude the Board’s authority to determine a constitutional issue, such as compliance with s. 35(1) of the Constitution Act, 1982, that pertained to a matter before the Board. The potential adverse impact to Mi’kmaq interests clearly related to the issues before the Board. The utility’s application costed and proposed to the Board methods to accommodate the potential adverse impacts to the Mi’kmaq archeology and fishery. The potential adverse impacts to the Mi’kmaq’s interests from the application were explicitly relevant to the decision at hand by the Board. The Board had the statutory power to make a final decision respecting the application. An adjournment of the application was within the Board’s power. The Board reasonably interpreted its mandate under the Public Utilities Act to encompass a significant component of public interest. There was direct and probable causation from the Board’s decision under s. 35 of the Public Utilities Act to the potential adverse effect on the Mi’kmaq interests. The Board correctly applied the constitutional principles and reasonably interpreted its home statute and made findings of fact supported by evidence.

Nova Scotia (Attorney General) v. Nova Scotia (Utility and Review Board), [2019] N.S.J. No. 344, Nova Scotia Court of Appeal, D.P.S. Farrar, J.E. Fichaud and P. Bryson JJ.A., August 9, 2019. Digest No. TLD-September232019001