A group of southern Alberta farmers Thursday won the right to a full Alberta Court of Appeal hearing on the fate of the proposed Montana Alberta Tie merchant electrical transmission line.
Mr. Justice Peter Martin of Calgary, in a hearing designed to decide if the landowners should be given leave to appeal the Alberta Energy and Utility Board licence for the MATL line, ruled the group and its lawyer, Scott Stenbeck, earned leave to appeal to the province’s top court to protect their farms and families from encroachment of the transmission line that will link a substation north of Lethbridge with Great Falls for two-way power transmission service open to the highest bidder.
The landowners named in the suit include Diane Sincennes, Norman Sincennes, David Swanson, Ted Swanson, Roy Swanson Farms Ltd., Art Vanklei, Lawrence Mazutinec, Sheila Mazutinec, Tony Cudrak, Beverly Cudrak, Ken Glover Professional Corporation, Brad Moser, Willem Kempert, Van Giessen Growers Inc., Tony Boss and Dave Van Pelt.
At her home Thursday, looking out her window at where the proposed transmission line will pass, Sincennes said she is so strong about the safety of her children, she will fight to the end.
“I don’t care if this takes another nine months,” she said.
“I want it decided fairly, honestly. I am not interested in a quick answer.”
She said it goes right the heart of rights of landowners. It says no private company should be allowed to come on private land for a for-profit project if the landowners oppose it.
“No amount of compensation or mitigation is worth the safety and health of my children,” she said. “I think the appeal court action could affect everybody and anybody with a passion for the issue is welcome to contribute to the costs. Just call me.”
Nobody, including Stenbeck, MATL officials or EUB spokesmen, could say when the official appeal hearing would take place.
Stenbeck said he will not accept a hearing date sooner than a month to allow him time to prepare for the court action, unless the court dictates an earlier date. He expects, because there will be no new evidence, the full appeal court panel should be able to conclude the court action within two days.
The appellants argued three points of law before Martin and the justice ruled in their favour on two of the points.
The first is the EUB erred in its application of the statutory framework relative to the jurisdiction of the National Energy Board and the jurisdiction remaining to the EUB, and the EUB’s interpretation deprives participants of procedural fairness and the requirement for MATL to demonstrate its applied-for route is superior to all other possible routes.
He also ruled the EUB erred in its interpretation of “public interest” and failed to attach the proper burden to avoid impacts in a merchant project.
Martin ruled in favour of EUB when he said it did not err by issuing a permit for an incomplete application that contained serious deficiencies, including the lack of public consultation.
Stenbeck, interrupting a family vacation in the Cypress Hills, said the appeal case will be precedent setting. Any future international energy project will have to meet the standards set by the appeal court.
Davis Sheremata of Calgary, an EUB spokesman, said the appeal court will decide the fate of the issue, and the EUB “will comply with the court decision. But because the issue is before the court, we can’t comment further.”
Joe Anglin, chairman of the Lavest Area Group which successfully fought another large transmission line in Alberta, said, “Today’s ruling is the first step in a victory for landowners all across Alberta.
“The MATL proposal is a classic case of competing private interests and if MATL is allowed to usurp private property for their own private interests, what is to prevent some other private interests, such as a used car company or a bank from taking possession of a farmer’s field because they like the location.”
Marc Clark of Calgary and Toronto, president of MATL, said the leave to appeal was not wholly unexpected. “We expected the appeal since before we went to the (public) hearing (in Lethbridge).”
He said while the ruling of the Court of Appeal could threaten the MATL project, the company welcomes an opportunity to “argue our case in front of the court.”
He admitted the lawyers will be the big winners in the MATL court case. “They are ready for a fight.”
He said the biggest threat is a delay of construction of the line. “A few months delay is no problem.”
Clark said MATL and Naturener, the major power producer which will build two wind farms in the Conrad, Mont., area to produce and market electricity through the line have a close association. “All this is factored into our respective plans.”
Clark said MATL was satisfied with an EUB-mandated face-to-face negotiation with affected landowners in the project corridor. “It was imposed mediation and it went really well.”
While MATL has not received any signed agreements, landowners will receive higher prices for the land used for the transmission line.
He said property values in the corridor area have increased significantly and the company just completed a new land value assessment. “Landowners will get a lot more money.”
By Ric Swihart
4 July 2008
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