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Spectators at wind turbine appeal suspicious of last-minute objections

PONTYPOOL – The lawyer representing the appellants opposed to a controversial wind energy project in Manvers Township told the chair of the Environmental Review Tribunal that he had never before heard people ‘boo’ a tribunal.

“And, I’ve been doing this for 20 years.”

Eric Gillespie made his comments on Friday (Dec. 19) as the hearing of the appeal of wpd Canada’s Sumac Ridge industrial wind turbine project entered its last day at the Pontypool Community Centre.

It was a full turnout as those opposing Sumac Ridge made a last stand, calling ‘reply witnesses’ to rebut previous testimony from witnesses for wpd Canada.

The Environmental Review Tribunal is an independent body that has conducted the appeal hearing for the last few weeks.

Citizen group Manvers Wind Concerns, Cransley Farm Homes and the Buddhist Association of Canada’s Cham Shan Temple launched the appeal last December after the Ministry of Environment (MOE) granted wpd Canada approval for Sumac Ridge. That involves the building of five industrial wind turbines (two of them on the Oak Ridges Moraine), which met fierce opposition from residents.

The Cham Shan Temple is a multi-million dollar project that would build four Temples that mirror those in China, allowing spiritual and meditational pilgrimages. One has already been built on Ski Hill Road, and the Buddhists say if Sumac Ridge goes forward, they will not construct the remaining three, as they allege the turbines will have an adverse effect on spiritual meditation. The appellants claim industrial wind turbines, which are about 500 feet tall, will also have a significant and negative impact on the environment, human health and the flora and fauna of the area.

Heather Gibbs is vice-chair of the Tribunal. The Director for the MOE is represented by Andrew Weretelnyk, wpd Canada by John Richardson and Mr. Gillespie is representing the appellants.

Throughout the hearing, there has been a parade of witnesses for the appellants, but few for wpd Canada. The Province elected to call no witnesses at all.

On Friday, (Dec. 19), several reply witnesses were scheduled (all had previously testified), including Geoff Carpentier on bird species at risk; Perry Sisson on the intermittent stream issue surrounding one of the turbines, and the City of Kawartha Lakes manager of environmental services/hydrologist, David Kerr. All were recalled to respond to rebut wpd witnesses’ response to their original testimony.

But, when lawyers for wpd Canada and the Province raised objections to the reply witnesses at the last minute, Mr. Gillespie was visibly angry, saying he had no inkling there would be any such objections – especially since most of the preceding days were spent in teleconferences between the lawyers.

Mr. Richardson and Mr. Weretelnyk maintained that, under the law, reply witnesses may not rehash previous testimony. Nor can they introduce any new evidence. Both lawyers said bringing forward what the witnesses were now saying was clearly “case splitting” and insisted the material the reply witnesses were submitting could easily have been presented as evidence when they originally testified.

Under the law, you can’t use witnesses to argue what has already been testified to; in effect using a rebuttal process to bolster your case, the audience heard.

But, Mr. Gillespie maintained the objections from both of his opponents were unforeseen and brought forward at the last minute.

When his opponents dropped several example cases on his desk to support their argument, Ms Gibbs told Mr. Gillespie the hearing would recess for 15 minutes to allow him to examine them.

That’s when Mr. Gillespie, visibly trying to control his temper, lashed out.

He told the Chair there was no way he could examine the cases, speak to his witnesses and prepare an argument in such a short time. Ms Gibbs said the hearing would not be delayed.

Mr. Gillespie said he would follow her ruling, but accused the Tribunal of being “biased and unfair.”

Angry comments rippled through the crowd; one man said, “there’s your government in action” and another, “open and transparent, right?”

After hearing arguments from Mr. Richardson and Mr. Weretelnyk to keep the reply witness testimony out; Ms Gibbs offered Mr. Gillespie a chance to submit his written argument on the issue in January, if he did not wish to do so at the time. Mr. Gillespie chose that option.

Ms Gibbs said she would permit the reply witnesses to testify as scheduled. But, she will reserve her decision as to whether their testimony is permitted.

Under questioning from Mr. Weretelnyk, Geoff Carpentier, who did the work on the bird species at risk in the proposed turbine area, refuted last week’s testimony from wpd Canada’s bird expert, Dr. Paul Kerlinger. Mr. Carpentier said the studies the scientist used were not up to date, which compromised his conclusions.

He maintained there are nine species at risk in the turbine area; 85 per cent of the area where the turbines will go is used by those species, including the bobolink, eastern meadlowlard and the barn and bank swallows. Mr. Carpentier said their habitat would be impacted, along with almost all of their foraging areas.

He added he didn’t see why the Ministry of Environment “would not think it is significant with nine species at risk there.”

Mr. Weretelnyk said Mr. Carpentier’s points in his reply testimony all could have been included in his original testimony.

Mr. Carpentier denied Mr. Weretelnyk’s suggestion that, in conducting work for his reply testimony “you decided to take it upon yourself to get new evidence” to support his case.

The lawyers must give their final submissions to the Tribunal by Jan. 7, and a decision in the appeal is expected on Feb. 19.