A group of southwestern Ontario residents is hoping to take to the next level a constitutional challenge of the province’s approval process for large-scale wind farms.
The residents, represented by Toronto-based law firm Falconers LLP, are seeking leave to appeal a Dec. 29 decision by the Ontario Divisional Court, which ruled against four families who live close to proposed wind farms and have raised serious concerns about the health impacts of industrial turbines.
A decision on whether or not the Ontario Court of Appeal will hear the matter is expected within 30 to 90 days.
“Basically what we’re fighting is setbacks. It’s not necessarily an anti-wind movement. It’s that the setbacks aren’t appropriate to protect the health and safety of people,” said Kevin McKee, president of Huron-Kinloss Against Lakeside Turbines (HALT), which is helping to fund the legal fight.
The so-called “Charter Challenge” claims the province’s process for granting wind farm approvals violates the residents’ right to security of the person as guaranteed by the Canadian Charter of Rights and Freedoms.
McKee said an Ontario court has not yet heard or ruled on that claim.
“What we’re hoping for is the appeals court of Ontario, which is the next step, will listen to our case, will respect the law and will invoke the Charter,” he said.
Four families are named as appellants in the case. Each is supported by an anti-wind farm community group.
HALT has objected to the approval of a proposed 92-turbine Armow wind farm near Kincardine.
Meanwhile, SWEAR (Safe Wind Energy for All Residents) has opposed a 140-turbine K2 project near Goderich and HEAT (Huron East Against Turbines) is backing opposition to the 15-turbine St. Columban wind farm near Seaforth.
The province’s approval of each of the wind farms was appealed to the Environmental Review Tribunal.
In each case, the ERT dismissed the appeals.
At the ERT, the onus is on the appellants to show that the renewable energy project will cause serious harm to human health or serious irreversible harm to animal or plant life or the environment. The tribunals each ruled the appellants had failed to do so. It also ruled that considering a Charter question related to security of person is outside of the ERT’s jurisdiction.
After the ERT decisions were issued, the three cases were joined to be heard together at Divisional Court late last year.
The panel of judges found that the ERT did not make an error in the way it dealt with the families’ claims.
The groups are now hoping the appeals court will consider the Charter question and whether the ERT’s “serious harm threshold” violates the precautionary principle, set out in Canada’s Environmental Protection Act, to prevent harm even when not all evidence is in.
“What our expectations are moving to the next level is that the (appeals) court will respect the law and that they will respect the Charter and our Charter rights,” McKee said.
Shawn Drennan, one of the appellants from the Lucknow area, said a Superior Court Justice ruled in 2013 that Charter and constitutional challenges of the province’s wind turbine approval process should be heard at the Environmental Review Tribunal.
But, since the ERT disagreed, the “issues that we raised on March 1, 2013, have actually never been addressed by a court,” he said.
Drennan, whose home in within two kilometres of where 11 wind turbines are proposed to be built and 500 metres from a large transformer station, said there are people in Ontario who are already being harmed by wind turbines and many more that will be negatively impacted once new projects are completed.
“Along with the constitutional and Charter issues, there are people who are being affected here,” he said, adding the current 550-metre minimum setback from turbine to home in Ontario is not enough.
McKee said the Charter challenge has cost the community groups about $700,000 – mostly in lawyer’s fees – so far.
Donations and more information on the case can be found at www.halt-safe.ca.
A win at the appeals court, he said, would change the way the ERT rules on wind farm appeals.
“The tribunals would have to take a lesser level of proof which would be harm.” he said.
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