August 22, 2013

Legal test of Ontario’s green energy process begins in Shelburne

Chris Halliday | Orangeville Banner | August 21, 2013 |

An appeal surrounding the province’s decision to grant Dufferin Wind Power Inc. approval to build a 99 MW wind farm in Melancthon has evolved into a case of fundamental human rights.

There is no might, could, or maybe about it, lawyers for the Ministry of the Environment (MOE) argued before Ontario’s Environmental Tribunal (ERT) in Shelburne on Tuesday (Aug. 20).

Those claiming the province’s Renewable Energy Approval (REA) processes are unlawful and violate the Canadian Charter of Human Rights and Freedoms must prove it beyond any doubt.

“The benefit of the doubt must go to the (province),” argued MOE lawyer Fredericka Rotter. “The onus on the appellants is very high.”

The 19-day hearing will focus on the wind project’s impact on human and environmental health, along with a constitutional test of the REA process.

No party has successfully convinced the ERT to overturn a wind farm approval in Ontario for human health reasons, but this case is a different kettle of fish.

“This isn’t the first health case,” said Eric Gillespie, lawyer for Wind Resistance of Melancthon president Dennis Sanford. “We believe the evidence you will hear is different. … There will be new evidence and awe.”

Sanford and the citizen’s group, Conserving our Rural Environment (CORE), claim the concerns of residents raised during the REA process have been glossed over or ignored by decision makers at the MOE.

“Decisions shouldn’t be made in an arbitrary manner,” Gillespie said, claiming residents’ concerns haven’t been properly investigated.

“That can and should lead to a different outcome than it has in previous hearings.”

The MOE disputes all the claims being made. That includes allegations the Dufferin Wind project is a serious threat to both human and environmental health.

“The project will not cause serious harm to human health,” Rotter said. “We’ll show the project is in conformity.”

As for the Charter challenge, Rotter argued the REA process doesn’t rob citizens of their rights. If it did, she said the ERT wouldn’t be hearing this appeal.

“The process … does conform to the fundamental right of justice,” Rotter argued, claiming “no one” has been deprived of rights by the REA process.

The ERT will hear testimony from a number of people who have lived in close proximity to wind turbines, along with a number of health experts.

CORE’s lawyer Laura Bisset will call several witnesses with pre-existing health conditions such as epilepsy to argue wind turbines nearby can amplify symptoms.

“You need a demonstration of evidence that the project ‘will’ cause damage,” warned John Terry, lawyer for Dufferin Wind. “Not may, or could cause.”

The ERT will also hear an argument that the wind farm poses a threat to the environment, including some of the best farmland in Dufferin County along with three endangered species of bats known to live in the area.

The tribunal hasn’t received a full list of witnesses from Rotter. Since the MOE had learned the Charter challenge would proceed last Thursday, she has asked the ERT for a little “indulgence.”

“We’d been preparing this case, that it was going to be a simple health case,” Rotter said. “Now, we’re confronted with the necessity of putting that together.”

Those unidentified experts on Rotter’s witness list may include a noise engineer, or perhaps a MOE expert speaking to the province’s vision for green energy.

“We’re not in a position to say who those witnesses are going to be,” she said. “We’ve been challenged in what we’ve been able to respond to.”

The MOE’s legal team had plenty of time to prepare, Gillespie objected. He said the MOE was first given notice of his client’s Charter challenge on July 19.

“That’s more than a month,” Gillespie said, arguing the MOE assumed the Charter challenge would be dismissed. “The (MOE) has been waiting to see.”

The ERT can confirm, revoke or alter the MOE’s approval of Dufferin Wind’s project. The panel has up to six months after the REA was issued in June to decide.

Before hearing the environmental threat argument, CORE lawyer David Crocker suggested the tribunal consider human health evidence first, and determine if the REA process followed violated the Charter next.

“It’s the originating process,” he said of the Charter challenge. “That (environmental) case might not be necessary.”

Crocker’s argument didn’t go far with Heather Gibbs, vice-chair of the ERT. Given the impact her panel’s decision on the Charter challenge could have on the REA process, she described his wish as a “faint hope.”

“We’ll be making a decision,” Gibbs said. “It’s more sufficient to hear all submissions.”

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