Picture this: you’ve built a successful bed and breakfast near Milford. Invested your life savings and over the years, established a popular destination and a living wage for your family. But one day, a couple dozen 50-storey wind turbines are constructed around your business. Some, though not all, of your guests complain. They can’t sleep and can’t take the constant lowlevel swooshing sounds. Besides, these industrial machines have destroyed the charm that once drew them to the B&B. Suddenly, TripAdvisor is full of bad reviews. Guests stop coming. You are forced to close your doors.
You seek compensation from the developer for destroying your business, along with the provincial ministry that permitted it. But it is no use. No court will hear your complaint. Unless you can prove that the turbines directly caused a sickness—you have no basis upon which to appeal. That is Ontario law.
The developer, meanwhile, has no such restrictions. If, as in the case of the White Pines project, the developer feels his return on investment will be negatively impacted by the deletion of two turbines, it is permitted to argue hardship before a tribunal and ultimately the court system, and seek compensation. The broke B&B owner has no such remedy.
It is a fundamentally unfair, biased and unjust process. That is the argument made by the County Coalition for Safe and Appropriate Green Energy (CCSAGE) in seeking a judicial review of the Green Energy Act (GEA).
“This issue is not about turbines,” said Alan Whiteley, a lawyer acting for CCSAGE. “It is about how we are governed.”
Whiteley spoke before the annual meeting of CCSAGE on Sunday at the Waring House. He offered another illustration. In the event a developer fails to comply with setbacks or other provisions in the Renewable Energy Approval (REA)—the onus is on the public to prove serious harm to health or serious and irreversible harm to nature. According to its REA, the developer is required to maintain a setback of 550 metres between a wind turbine and a home. In the event, however, that a turbine is later found to be just 400 metres from a home, it is up to the homeowner to prove harm to their health. The developer is not required to prove it complied with the regulations.
“The GEA gives complete power to the proponent [developer] on every basis,” said Whiteley. “Those who object are limited to harm to health and nature.”
The bias of the GEA extends beyond those who live under the shadow of these projects. Whiteley observes that municipal planning authority has also been gutted unfairly under the law. Much has been reported about the province usurping powers from local government and how many municipalities have bristled and complained. But Whiteley says the GEA has, in effect, created two classes of municipalities— urban and rural.
“Rural Ontario no longer has the protection of the official plan that was hammered out in the community to protect your property and investment by industrial wind turbines or other renewable energy projects,” explained Whiteley. “Because industrial wind turbines aren’t going to be built in Don Mills, residents have protection that rural residents don’t.”
He says that while Ontario law trumps municipal bylaws, municipalities may well pursue their complaints at the federal level.
“The Charter of Rights and Freedoms trumps Ontario law,” said Whiteley. “Natural justice trumps Ontario law.”
He adds that the GEA has given an enormous and inappropriate amount of power to the director of the MOECC to decide what is in the publics best interest. It is the director who decides which endangered species may be killed, harmed or harassed. It is the director who ultimately grants renewable energy approvals. Yet, there is no transparent process to ensure the director is acting in the publics best interest.
Later in the question and answer session, a hand went up in the crowd by a man who said he had worked as a ministry director at the federal level. He told the crowd that directors’ decisions are political, not the reflection of an individual’s discretion.
“I carried out the will of the politicians,” explained the former director.
Whiteley filed the judicial review application last November. Directors from the Ministry of Natural Resources and Forestry, MOECC and the Ontario Energy Board are required to respond. Each director must produce all the documents and show how they reached their conclusion to grant a decision.
“So far, they have refused to do so,” Whiteley told the gathering.
Now he and his team, including five Osgoode Hall (York University) law students, must file motions compelling these ministry officials to answer these basic questions.
He cautioned the gathering and, indeed, all Ontarians to resist the “creeping attack on your rights.”
STEPPING UP THE FIGHT
More than 100 people attended the CCSAGE annual meeting hoping to hear an update on the various appeals underway in the County to resist industrial wind energy projects. Mayor Robert Quaiff flew home a day early from vacation to attend. Councillors Steve Ferguson and Gord Fox were also present.
Anne Dumbrille, diretor of CCSAGE, presented a scathing review of the GEA, pointing to the fact that no government ministry or official is tasked to ensure that developers comply with the regulations set out in its REA.
“The onus is on the public to show that the project is harmful to health and nature,” said Dumbrille. “The developer, meanwhile, is not required to prove that its project is safe.
“The public is doing the government’s job—at a huge personal cost,” said Dumbrille.
Garth Manning chaired the meeting and offered the following promise to the Ontario government.
“By every possible legal, legitimate and moral means, we will, without ceasing, battle those who care nothing about the devastation of rural Ontario, its wildlife and its economy,” said Manning. “[They] subscribe to and take advantage of the disgraceful and undemocratic provisions of the backroom-contrived Green Energy Act, only from motives of greed and avarice.”
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