March 13, 2012

Second opinion from lawyer reluctantly released to public

By Susan Hundertmark, The Mitchell Advocate, 12 March 2012

Faced with a packed council chamber of 70 people, Huron East council decided to release the advice it received from a second lawyer concerning a municipal bylaw to protect the health, safety and property of local residents living near industrial wind turbines (IWTs).

The second opinion from Fred Tranquilli, of Lerners LPP in London, Ont. was originally received in closed session by Huron East council and not released to the public after the meeting.

“We have no idea what happened in the closed session. What did you actually ask for?” said Gerry Ryan, a representative of Huron East Against Turbines. “It’s not a good situation when you go into private session unless someone threatened you with a lawsuit and no one from this group threatened you.”

Clerk-Administrator Brad Knight explained that Tranquilli had advised Huron East to use client-solicitor privilege as the reason to go into closed session. Council issued a press release following a closed session, informing the community that after receiving an opinion from Tranquilli that was “very similar” to one received earlier from Huron East solicitor Greg Stewart, the municipality would no longer be pursuing a bylaw to protect the health, safety and wellbeing of local residents who live near IWTs. Stewart had delivered his opinion to Huron East council during an open session with a public report.

“I don’t see any reason why we can’t share it with the public. I don’t see that there’s anything in there we can’t release,” McKillop Coun. Bill Siemon told his fellow councillors after Ryan asked why Tranquilli’s advice had not been released to the public and a motion was passed supporting Siemon’s suggestion.

Mayor Bernie MacLellan told Ryan that he will receive the actual letter from the lawyer, the official motion and a full copy of the documentation brought to council to discuss.

“We will make sure we get the proper documentation to you,” he said.

Ryan noted that while he’s been told HEAT will never be happy, even if council receives a second opinion, he was concerned whether councillors were really interested in protecting their citizens.

“Are you really concerned with protecting people of the municipality? We all live here and pre-election, I heard councillors make speeches about how they were going to protect rural Ontario but I don’t hear anything anymore from the councillors who spoke the loudest,” he said.

Ryan added he wanted to know if council directed the lawyer to provide “really solid expert opinion based on municipal law and health and safety.”

Tuckersmith Coun. Les Falconer responded that Huron East had asked for a bylaw to protect the health and safety of local residents but added that since council is a third party with nothing to gain or lose, the lawyer advised that Huron East cannot create a bylaw.

“I would suggest you got bad information,” said Ryan.

Rob Tetu, also of HEAT, said that the press release quoted Tranquilli’s background about the Environmental Review Tribunal’s decision on the Kent Breeze project, which he said left out the second half of a paragraph about the indirect health issues the tribunal said could be caused by proximity to industrial wind turbines.

“The tribunal said there was not enough evidence to disprove indirect harm and that it is no longer a question of whether they can cause harm but how much harm,” said Tetu.

Siemon told the HEAT representatives that council went to the second lawyer for an opinion and was “not going to answer for every lawyer in Ontario.”

“We didn’t like the answer either but that’s the answer we got,” he said, adding that the municipality has done everything it can on the issue.

Ryan disputed the assertion that the municipality has done everything it can, pointing out that Huron East could get more involved in the Inter-Municipal Wind Turbines Working Group, which recently met with officials from the Ministry of the Environment in Toronto to represent the interests of several rural municipalities.

“You missed a huge opportunity to be in front of the ministry last week. Can you appoint someone who wants to go to these meetings? You’re not doing everything you can if you missed that opportunity,” he said.

In a letter to Huron East, lawyer Fred Tranquilli told council his opinion that the municipality does not have the authority to enforce a bylaw that restricts or obstructs the development of wind turbines. However, he added that Huron East would be able to challenge wind turbine development through the Environmental Review Tribunal (ERT).

“It is my opinion that a municipal bylaw whose stated purpose is to protect the health of its citizens would be inoperable insofar as its application to wind turbines is concerned if the bylaw constitutes an obstacle or restriction to wind turbine development,” said his letter.

“In the event the municipality is of the view that wind turbines constitute a risk to the health of its citizens, the municipality must appeal the approval of a renewable energy project to the ERT. The municipality must present convincing evidence of serious harm to humans, plant and animal life, and the natural environment which can be attributed to the wind turbine in order to be successful,” he said in the letter.

Reviewing recent challenges to the Green Energy Act, Tranquilli spoke to Hanna v. Ontario in March 3, 2011, saying that the court was reluctant to consider the issue since legislation directs such matters to the ERT and pointed out that anyone can appeal the approval of wind turbines to the ERT.

In the case of Erickson v. Director, Ministry of the Environment heard by the ERT last year, Tranquilli pointed out that the ERT found that while risks and uncertainties are associated with wind turbines that merit further research, the citizens failed to show that Suncor’s Kent Breeze Project would cause serious harm to human health.

Tranquilli also noted that any role municipalities may have had previously to control renewable energy projects has been taken away by the province.

[rest of article available at source]

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