February 10, 2016
Ontario

Wind farm dead, but lawsuit alive

BY CARL CLUTCHEY, NORTH SHORE BUREAU | The Chronicle Journal | February 10, 2016 | www.chroniclejournal.com

The Toronto energy company that proposed to build an ill-fated wind farm on the Nor’Westers escarpment is proceeding with a $50-million lawsuit against the Ontario government, despite having dropped an appeal of a provincial decision against the project.

“Upon careful consideration, we have decided to not appear before (Ontario’s) Environmental Review Tribunal, and instead pursue a remedy at the Ontario Superior Court of Justice,” Horizon Wind spokeswoman Nhung Nguyen said Tuesday in an email.

Horizon withdrew its appeal to the tribunal on Jan. 25. The appeal had been launched last fall, after the Ministry of Environment said the proposed 16-turbine wind farm south of Thunder Bay couldn’t go ahead over lingering concerns over potential impacts on moose habitat.

In its lawsuit against the ministry, Horizon claims the province committed “negligent misrepresentations and misfeasance of public duty.”

None of the allegations in the suit’s 33-page statement of claim have been proven in court.

The lawsuit alleges that the ministry was “unlawfully influenced by the Ontario cabinet and the premier’s office” when it delayed the issuing of the project’s approval. As early as 2012, the company claims, it had met “all the technical and legal requirements.”

According to the suit’s statement of claim, the delay in receiving approval for the project “caused the Ontario Power Authority to exercise the termination right in the Horizon’s FIT (energy) contract.”

The ministry, the lawsuit alleges “knew that the delay would consequently eliminate Horizon’s ability to proceed with the project, and cause substantial damages based on its lost investment and loss of anticipated profit.”

Horizon says that between 2005 and 2014, it spent $10 million trying to develop the wind farm. The 32-megawatt Big Thunder Wind Park project was to cost $50 million to construct.

A ministry spokeswoman said Tuesday that “following a review of the statement of claim, the ministry will determine how to respond.”

According to Nguyen, “the ministry is several months late in filing a response” to the lawsuit.

In its rejection of Horizon Wind’s proposal last fall, the ministry said the company had failed to provide “detailed (information) on the potential impacts on moose and moose habitat.”

That ruling was supported by Fort William First Nation which, among other things, had objected to a proposed requirement for hunters to stay well clear of the turbines.

Horizon had argued that moose wouldn’t have been negatively affected by the turbines because the animals would benefit by having additional pathways to browse for food.

The wind farm was to be built on 7,000 hectares of land owned by the city, in the Municipality of Neebing.

Meanwhile Tuesday, a citizens group says protection of the Nor’Westers escarpment should become a “priority” now that Horizon has dropped its Environmental Review Tribunal appeal and the project appears to have come to an end from a development standpoint.

“Almost 10 years, thousands of hours and thousands of dollars have been spent on protecting these mountains and watershed against this (wind-farm) project,” Nor’Westers Mountain Escarpment Protection Committee spokesman John Beals said in a news release.

“We believe,” Beals added “that the City of Thunder Bay can now state clearly that the . . . lease with Horizon (on the Neebing land) will be cancelled.”

Thunder Bay Mayor Keith Hobbs said he couldn’t comment Tuesday because the city has not been officially notified of Horizon’s decision to withdraw its Environmental Review Tribunal appeal.

Hobbs, who said he may comment at a later date, had earlier opposed the Nor’Westers location. So did Natural Resources and Forestry Minister Bill Mauro, whose riding includes the proposed wind-farm project.

Beals said the escarpment lands had been placed “in trust” with the city more than 100 years ago.

Any future plans for the escarpment shouldn’t go forward before consultation with Neebing Township, Fort William First Nation and the committee, he added.