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PUBLIC UTILITIES - Regulatory tribunals - Practice and procedure - Appeals - Provincial boards, tribunals and commissions

Thursday, March 02, 2017 @ 8:47 AM  

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Application by five members of the Enoch Cree Nation for permission to appeal a decision by the Alberta Utilities Commission with a stay pending appeal. The decision at issue granted a final time extension for completion of construction of a TransAlta transmission line rebuild that crossed lands occupied by the Enoch Cree Nation. The applicants held certificates of possession, but were not party to any of the prior proceedings, including the Commission's initial decision approving the rebuild. The applicants sought to appeal the Commission's final time extension decision on the basis TransAlta should have obtained a s. 28(2) Indian Act permit prior to conducting the work, the Commission failed to give notice of the request for a time extension, and the prior decisions of the Commission ought not to have been granted.

HELD: Application dismissed. The applicants' proposed appeal was not prima facie meritorious. The decision to grant a time extension was a reasonable exercise of the Commission's discretion, entitled to deference. The Enoch Cree Nation, apart from the applicants, supported TransAlta's extension request following consultation with certificate of possession holders, and ratified its cooperation agreement with TransAlta through a Band Council resolution. The matter of an Indian Act permit was never raised before the Commission and played no role in the extension decision. Many of the other proposed grounds of appeal constituted impermissible collateral attacks on previous Commission decisions which were never appealed. In any event, the matter was moot, as the construction of the transmission lines was complete.

Morin v. Alberta (Utilities Commission), [2017] A.J. No. 111, Alberta Court of Appeal, P.A. Rowbotham J.A., January 17, 2017. Digest No. 3640-013