Preserve Mapleton Incorporated (PMI) has lost its judicial appeal of NextEra Energy’s 10-turbine wind farm southwest of Arthur.
Further, the Superior Court of Justice has suggested PMI cover legal costs of $5,000 for the province and the Ministry of the Environment (MOE) director who issued the decision, and another $30,000 for NextEra Energy.
PMI has received three weeks to formally argue against those suggested costs and the appellants have ten days after that submission to argue their case
Rebekah Church, an associate with PMI’s lawyer Eric Gillespie, said the firm will be opposing those awards. The next step will be to fight the NextEra proposal at the Environmental Review Tribunal (ERT) and dates for that hearing have not been set. Church said they might get started in July.
PMI president Tyler Struyk said in an interview on Monday the group plans to continue its work to oppose the turbine proposal at the ERT.
Struyk said it was difficult going up against NextEra and the provincial government because the courts could have a “bias” in favour of them.
He noted when it comes to a First Nations challenge at the ERT, he believes that group is “pulling out” to continue its arguments at the federal level.
That will leave PMI alone to fight the turbines at the tribunal.
“I believe we’re going to continue and we’re going to need financial assistance,” said Struyk, whose group has been seeking donations.
He added the group is very grateful for the donations it has already received and those who donate will have complete anonymity.
The PMI complaint was heard by J.J. Swinton, J. Douglas Cunningham, and J. Crane in Toronto in early April.
In December NextEra received permission from the MOE to install, operate, use and retire the Conestogo Wind Energy Project – a Class 4 wind facility of ten wind turbines, generators, a transformer station, transmission lines and two meteorological towers – in the township.
Mapleton council considered taking part in the court procedure, but on the advice of its solicitor, decided it could not spend taxpayers’ money in a battle it was unlikely to win.
The Superior Court of Justice Divisional Court heard the appeal on April 2 and ruled on it late last month. Mapleton residents have been opposing the turbine proposal for several years.
PMI argued the project owners had failed to hold the number of meetings required under provincial law and that NextEra did not give the required 30-day notice of the meeting.
The ruling noted that after several meetings and several modifications to the project, the MOE reviewed the modifications and assessed them to be “minor, and therefore no further public meeting was required. However, the ministry required
Conestogo to update its documentation and website, consult with other ministries, and provide notice to the public.”
The court stated there were several legal issues arising with the application:
– whether PMI has standing to bring this application;
– if the decision of the director to approve the application was reasonable, despite the failure to meet all the requirements of the regulation; and
– whether the applicant was denied procedural fairness in the consultation process leading to the director’s decision.
The court ruled a person may bring a legal proceeding to challenge the decision of a public or quasi-public body only if the person’s private rights are directly affected by the decision or the person is exceptionally prejudiced by the decision in a manner different from the general public.
The court’s judgement stated, “PMI does not meet the test for personal standing, as it has not shown that it has suffered an injury as a result of the director’s decision distinguishable from that sustained by the average citizen.
“For example, it has not shown that it was prevented from participating in the public consultation process or affected by the way in which the archeological assessment was carried out.”
The court also ruled “PMI has not shown a genuine or long and continuing interest” in the application. The NextEra application came in 2007 and the group was formally formed only in 2011. The court noted, “There is no explanation in the record as to how it was formed or who its members are, and there is nothing in the record to suggest it existed throughout the consultation process or that it has expertise or experience in the area of environmental approvals.”
The justice noted Gillespie wrote the ministry in August of 2011 representing “Stop Mapleton Wind Farms, not PMI.”
The former was the name of the group opposing the turbines at that time. The group later changed its name to PMI.
The court ruled, “PMI has not met the requirement that it has a genuine interest in the issues raised in this application. The fact that a favourable decision in this application may assist its appeal to the ERT is not sufficient to create a genuine interest in the issues.”
The court also ruled there is another way to fight the proposal, and PMI is already doing that at the Environmental Review Tribunal.
The ruling also stated, “It is obvious that the MOE staff knew of the failure to meet the requirement of the regulation and they took steps to address any problems in the public consultation process … staff members were satisfied Conestogo demonstrated it had ‘sufficiently met the requirements of the regulation’.”
The Advertiser attempted to contact other PMI members and also NextEra, but phone calls were not returned before the press deadline.
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