Family wins court challenge for second look at NTPC compensation
Owners of fishing camp claim damages from water licence renewal for Taltson hydro dam
Paul Bickford
Northern News Services
Published Monday, March 17, 2014
HAY RIVER
A Hay River family - which owns a fishing camp on Nonacho Lake - has won a court challenge regarding a financial compensation decision made by the Mackenzie Valley Land and Water Board.
The Supreme Court of the NWT has ruled on a civil case involving a claim for compensation related to the Northwest Territories Power Corporation's hydroelectric dam on the Taltson River. - photo courtesy of Deze Energy Corporation |
In a ruling on March 7, Justice Karan Shaner of the NWT Supreme Court quashed those portions of a board decision, and the subsequent approval by the minister of Aboriginal Affairs and Northern Development, dealing with compensation for the family as a result of a 2012 renewal of a water licence for the Northwest Territories Power Corporation (NTPC).
The Carter family - Jean Carter, Myles Carter, Dean Carter and Kandee Froese - operate the fishing camp at Nonacho Lake, north of Fort Smith. The NTPC has had a hydroelectric facility on the connected Taltson River since the 1960s.
The family requested $5,690,621 in compensation for past and future loss of income and out-of-pocket expenses - for things such as replacing docks, clearing debris and the impact of water use on the viability of the fishing lodge - when the board considered the NTPC's water license renewal application in 2011.
The family claimed additional damages of $575,000 for nuisance, inconvenience and loss of lifestyle.
However, the board decided it was not permitted to provide compensation for the effects of past water licences, and found insufficient proof to establish and quantify potential future losses or damages related to the Taltson facility.
It did award the family $62,500 in compensation for nuisance and inconvenience.
"The board's decision on the amount of compensation to be paid to the Carters does not meet the standard of reasonableness," wrote Shaner.
The judge noted the board failed to provide any explanation of how it determined $62,500 was appropriate compensation for nuisance and inconvenience.
"The Carters were entitled to know what standard they had to meet and why they fell short of it," she wrote. "In doing so, the board was required to provide enough detail and analysis to allow the Carters to understand the rationale. The board did not do this."
She described the board's decision as unjustified, unintelligible and unreasonable.
Shaner ordered the matter of compensation back to the board for consideration and a decision.
However, the judge ruled the board had correctly decided the NWT Waters Act does not grant the board authority to award compensation for adverse effects from past water licences.
The family filed a claim for compensation with the board in September of 2011.
Following public hearings, the board issued a water licence to NTPC later that year.
However, it found the Carters would be adversely affected by the activities proposed by NTPC and imposed a number of conditions on the licence. That included a requirement that NTPC determine the nature and extent of the adverse effects, and that the corporation submit a report to the board detailing the adverse effects and its mitigation plan.
In December of 2011, the federal minister declined to approve the licence as presented, explaining it was the Mackenzie Valley Land and Water Board - not NTPC - that should determine the amount of compensation.
The board then gathered evidence to determine appropriate compensation through information requests to the Carters and NTPC, which provided an extensive response to the family's submissions.
The Carters asked to reply to NTPC's submissions, but the board denied that request.
"In being refused an opportunity to make submissions on NTPC's response to the information request, the Carters were denied procedural fairness," Shaner wrote in her ruling, and ordered that the family be allowed to respond to the NTPC information.
Jonathan Rossall, an Edmonton lawyer representing NTPC, noted the judge's ruling means the licence to operate the dam
will continue to exist.
"The issue of whether the Carter family are entitled to any compensation arising from the use of the dam will go back to the board for reconsideration, because the board awarded a very, very small amount of money to the Carters," he said. "The court hasn't commented on whether that was the right amount or not. All they've said is the board should revisit this issue because there were some procedural problems with the way they looked at it."
Rossall said he and the NTPC were reviewing the court ruling as of last week.
"If any of the parties wanted to, the matter could be appealed one level further to the Northwest Territories Court of Appeal," he noted. "We don't have those instructions at this point in time."
The Carters are "extremely happy" with Shaner's ruling, said Eleanor Olszewski, an Edmonton lawyer representing the family.
The denial of the right for the family to reply to NTPC's final submission is a fundamental part of the case, she noted. "The main argument that the Carters raised was that there had been a lack of procedural fairness, a lack of natural justice, and those are administrative law principles that would apply to tribunals like the Mackenzie Valley Land and Water Board."
Olszewski said the Carters are also very pleased that Shaner found the board's decision on compensation wasn't reasonable.
The family's submission on damages included an expert report, she noted. "The Carters didn't pull numbers out of the air. They retained a chartered accountant who's an expert in the evaluation of losses, and that expert report is what was provided to the water board."
Olszewski also noted the larger part of the Carters' claim is for future losses, not past losses.
James Hope-Ross, a Calgary lawyer representing the Mackenzie Valley Land and Water Board, said it is neutral in such court proceedings.
"It's just there really to be an assist to the court. So at this stage we've received the decision and the board is reviewing it to see what the impacts are, if any, on what they have to do next," said Hope-Ross. "So it's a bit premature to even offer any other comments, other than that the board will consider it and comply with the court's direction."
