It is not at all clear the hall at Demorestville is nearly big enough to accommodate the residents seeking to defend Ostrander Point when the Ministry of Environment’s Environmental Review Tribunal (ERT) gets under way next month.
Close to a hundred folks crowded into Picton’s Town Hall for a preliminary hearing on Friday in a room with fewer than 60 chairs. Even as a sturdy winter storm settled into the County, cancelling school buses and closing businesses, the room continued to fill.
Most had come hoping the panel might overturn the Ministry of Environment’s decision to approve Gilead Power Corporation’s plans to erect nine industrial wind turbines on Crown land at Ostrander Point. Most, but not all.
Many were forced to stand during the first two hours of dreary wrangling and dry explanations of procedures by a cast of lawyers that included the tribunal member, three laywers from McCarthy Tétrault for Gilead Power, two lawyers representing the MOE and one lawyer for both the Prince Edward County Field Naturalists (PECFN) and the Alliance to Protect Prince Edward County (APPEC).
Likely the most critical explanation centred on the hurdle PECFN and APPEC must clear in order to overturn the MOE director’s approval of the project.
Tribunal member Robert Wright said the onus is upon lawyer Eric Gillespie to show the IWT development will cause serious harm to human health; or serious and irreversible harm to plant life, animal life or the natural environment. He repeated it several times for the benefit of the crowd.
It is a very high hurdle—for it is hard to conceive how a prospective development might be proven to cause harm until it has actually done so—yet this is the test Gillespie, PECFN and APPEC must meet. It is the only doorway left open for those who object to the industrialization of this raw wild land on South Marysburgh’s shoreline.
The balance of the morning session dealt with arguments about who would be allowed to speak and participate in the hearing beyond the appellants, the MOE and the approval holder (Gilead Power).
Sylvia Davis, lawyer for the MOE, urged the tribunal member to avoid being too generous about who should speak, noting that the tribunal is required to issue a decision on this appeal within six months.
“Given the six-month window, [the tribunal] will have to focus how evidence comes in,” observed Davis.
Five individuals and groups are seeking status as presenters or participants to the hearing: four against, one for.
When Davis announced she opposed granting status to all but the one group in favour—a mix of groans and laughter erupted in the room.
She urged the member, Robert Wright, to admonish the crowd.
“It is important that this matter is considered in a polite and judicious way,” said Davis. “I respect the passion around this issue but we are all adults here.”
Wright assured her that the hearing was in hand.
“I am confident respect will be shown here,” said Wright. “I have no doubt everyone will act appropriately.”
He would later have reason to retract these words.
Only two groups were on hand to support their request for status at the hearing. Don Chisholm of the County Sustainability Group argued “the planet has an addiction to fossil fuels” and that denying this development based upon “unproven concerns is a step in the wrong direction.”
Deborah Hudson, also of the County Sustainablity Group, argued the passion for the wildnerness at Ostrander Point is overstated.
“This land has been used as as a bombing range,” said Hudson. “Nature has a way of coming back.”
On the other side of the argument, Parker Gallant worked to persuade the Tribunal that Wind Concerns Ontario should be granted status as a participant; that as an umbrella group for groups concerned about wind energy across the province, they could offer an important and knowledgeable perspective to the proceedings.
“There is a lot of collective information that can be brought to bear,” said Gallant.
Davis argued vigorously and at length against participation by WCO, saying it was unclear WCO would bring anything to the hearing that the appellants, PECFN and APPEC, could not—particularly as the two executive members of WCO are also members of APPEC.
“What will be added?” asked Davis.
Due to the constraints of the room and the lack of public address system, Davis felt compelled to make her arguments against granting WCO status mostly to the crowd rather than the tribunal member, to assist the gathering in hearing her. But the optics of this worked against the MOE counsel. The longer she argued the more she appeared to be lecturing the crowd on settled and indisputable facts.
That was too much for one audience member.
Dennis Fox interrupted the proceedings from the crowd.
“You are the lawyer for the government,” shouted Fox to Davis. “All I hear is short timelines and why we can’t hear from some people but we can hear from others. If the government is driving this we are screwed.”
Then he left the room.
Gilead’s lawyers agreed with the MOE lawyer suggesting that WCO’s contribution would likely amount to “me too.”
Gillespie responded that that is a possibility with anyone participating or presenting in a hearing. He also noted that there was no connection between PECFN and WCO.
Davis began to counter the argument suggesting that “if this were a normal hearing…” before Wright cut her off.
“This is a normal hearing,” interjected Wright. “I hope.”
Who will pay?
The test of “serious harm” has not yet been met by a wind energy appeal in Ontario. The appellants hope this time will be different. They intend to call as many as 23 witnesses to the hearing in Demorestville beginning in March to explain the health issues that they live with amid the massive wind turbines.
The Ministry of Environment lawyer, Sylvia Davis, argued on Friday that each of these witnesses should be compelled to produce medical records going back a decade before exposure to industrial wind turbines, and since.
Gillespie countered that pulling together this amount of information would pose a considerable hurdle—as much as $46,000—to APPEC, a group he described as just ordinary people without large financial resources behind them. He asked the member to order the MOE to pay the cost of obtaining the medical records since they were the ones looking for them.
The tribunal member will deliberate and is expected to rule on a these and other issues before the hearing begins on March 4.
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