Full text of letter from appeal board on delay of ACC case

August 20, 2010

VIA Fax and Email

APPEALFILE: 2010-EMA 002

Bell Lawyers

Attention: Glen W. Bell

1400-1125 Howe Street

Vancouver, BC V6Z 2K8

Aboriginal Cogeneration Corporati In

Attention: Kim Sigurdson

7 Bingham Drive

Winnipeg MB R3R 2W8

Ministry of Attorney General

Attention: Dennis Doyle

POBox 9289 Stn Prov Govt

506 – 1175 Douglas Street

Victoria BC V8W 9J7

RE: Environmental Management Act Appeal – Ruth Madsen v. January 7,

2010 Permit #103943 granted to Aboriginal Cogeneration

Corporation by the Director.

On August 16, 2010, the Board received a request from counsel for the Appellant to postpone the hearing of the above-noted appeal currently scheduled for September 13-17,2010. He asks that the hearing be postponed until the Fall of 2010, or early 2011.

The postponement request was received on the same day that the Appellant’s prehearing submissions and documents were due, thus leaving little time to obtain comments from the other parties and to decide whether the hearing should proceed as scheduled. The explanation for this request was provided by counsel. He states that the Appellant “has been searching diligently for funding and counsel, but without success. She contacted me early in July, and I expressed my willingness to act. However, due to a serious medical issue, I could not give a commitment at that time. My health has since improved and I was able to agree to take on the case yesterday” (August 10, 2010).

Having just confirmed his availability to act for the Appellant, counsel states that he did not have time to prepare the pre-hearing submissions, and the deadline for expert reports had passed. Counsel requests at least three months to prepare for the hearing.

The Board provided the Respondent and the Third Party with an opportunity 10 comment on this request. By letter dated August 17,2010, the Respondentadvised that he does not object to the postponement.

By letter dated August 18, 2010, the Aboriginal Co~enerat~on Corporation (“ACC”) objects to the requested postponement. It states, AAC will be aggrieved by further delay of this appeal process and are not prepared to consent to further economic hardship that will ensue should this adjournment be approved.” The AAC notes that the Appellant has had “ample time and opportunity” to prepare for this appeal and yet only retained a lawyer a few days before the deadline for her Statement of Points. The AAC further notes that the Appellant has failed to provide her pre-hearing submissions as required, and submits that her appeal should be quashed.

In deciding whether to grant a postponement, the Board considers a variety 0f factors including:

• the adequacy of the reasons provided and the adequacy of any objection to the postponement;

• the number of postponements that have already been granted;

• whether the postponement will needlessly delay or impede the conduct of the hearing;

• whether the purpose for which the postponement is sought will contribute to the resolution of the matter;

• whether the postponement is required to provide a fair opportunity to be heard;

• the degree to which the need for the postponement arises out of the intentional actions or the neglect of the participant seeking the postponement;

• the prejudice to the other parties if a postponement is granted, balance against the prejudice to the applicant if the postponement is not granted

• any environmental impacts that may result from a postponement of the hearing;

• the public interest in the efficient and timely conduct of the appeal; and

• any other factors which may be relevant.

The Board notes that the hearing date was originally scheduled on April 20, 2010, and that there have been no previous postponement requests.

This is a relatively technical case with significant public interest. The assistance of counsel will be beneficial to the Appellant and the Board in these circumstances.

The Appellant advises that she has been trying to arrange for counsel since July. The Board has two letters from the Appellant (June 14, 2010 and July 14, 2010) which indicate that she has been working on her case since the hearing was set down; therefore, her request for a postponement does not appear to be out 0f inattention or neglect.

The AAC says that it will be prejudiced and suffer economic hardship, but does not explain what type of economic hardship or why this will happen as a result of postponement. There is no indication that the AAC is currently attempting to construct the plant and no indication of the actual impact that a three- month delay will have.

Under the circumstances, the Board is satisfied that a postponement of the the hearing is justified to ensure that a fair and full hearing will occur. The Board is also satisfied that no prejudice will result from the postponement to the AAC, the environment, or to human health.

The Board is now cancelling the hearing that is scheduled for September 13-1, 2010. The Board is available to set new dates in December of 2010 or January of 2011. All parties are requested to advise of their availability during those 2 months. A response is requested by August 25, 2010.

New dates for the exchange of Statements of Points, documents and expert reports will be set down once a new hearing date is confirmed.

Yours truly

Alan Andison

Chair