County News

Fixing a bad law

Posted: September 23, 2015 at 9:08 am   /   by   /   comments (19)

Law-StudentsLegal minds collaborate to restore rights and safeguards diminished by the Green Energy Act

The Green Energy Act (GEA) is the target of a proposed judicial review to be launched this fall. CCSAGE Naturally Green, a not-for-profit public interest corporation led by its directors Anne Dumbrille, Alison Walker and Garth Manning, believe the GEA is a fundamentally flawed piece of legislation. They argue the GEA tramples rights and freedoms, punishes rural Ontarians, contravenes statutes and conventions the province is bound to uphold, and, at its core, is fundamentally unjust.

One example: Currently, wind developer wpd Canada is appealing a decision, made under the provisions of the GEA, permitting it to build 27 of 29 industrial wind turbines it proposes in South Marysburgh. In making this appeal, the developer is allowed to make a wide range of arguments and present evidence in its favour. It will certainly argue that the decision will impair its ability to make money from the project. It may argue that the heritage value of the nearby properties has been overstated. It is likely to argue many things. Because it can.

Meanwhile, opponents of the project are permitted only to object on the basis that the project will cause serious harm to humans or serious and irreversible harm to plant life, animal life or the natural environment.

The developer is granted unlimited scope to argue in favour of its profit, while residents are restricted to just two near-impossible tests. The province designed the GEA this way.

Alan Whiteley, a lawyer acting for CCSAGE, considers the GEA a fundamental assault on the rights, freedoms and statutes that have been constructed to protect citizens and the environment from this kind of overreach by government. It is something, he argues, we must all resist.

Specifically he is asking the courts to examine the process by which the province reviewed and ultimately granted the renewable energy approval (REA) to wpd Canada for its White Pines project in South Marysburgh.

“We believe there is a reasonable apprehension of bias in the process,” said Whiteley. “The GEA has created a minority—residents of rural Ontario—and has taken away our right to object except for the narrowest of grounds.”

He argues that the Environmental Review Tribunal (ERT), as the sole appeal mechanism of an REA is a product of this bias.

He explains that under administrative law, the Ministry of Environment’s director plays a quasijudicial role—examining and weighing evidence and reaching a decision, for example, to grant a wind developer an approval, which could include a permit to “harm, harass and kill” an endangered species. But as citizens, we are precluded from knowing how that decision was reached— or whether it was fair.

To assist CCSAGE scale this legal mountain, the group has enlisted the assistance of York University professor Stepan Wood and five of his law students at Osgoode Hall Law School. Together, they are working to accumulate evidence and legal arguments to buttress the group’s claim that the GEA violates natural justice, prevailing statutes and individual rights in at least two dozen ways.

Whiteley returns to the inequity of the ERT appeal mechanism that enables the developer a wide scope of arguments, but restricts opponents to just two—human health and animals, plants and habitat destruction.

“Only the proponent may argue matters of heritage, economics or property rights,” explained Whiteley. “We are precluded by the act from showing how this project will impact heritage, the local tourism economy or property values. The ERT is part of the unfairness.”

He points to the divide created by the GEA in Ontario between rural and urban communities.

“In Toronto, you can rely on your official plan to protect you from industrial wind turbines from diminishing the value of your property,” said Whiteley. “In rural Ontario, local decisionmaking has been taken away. Our mayor has said clearly that this community is not a willing host to these projects. Yet the GEA permits it over the objections of the community.

“The GEA has created a minority in rural Ontario and taken away our right to object to development that fundamentally alters our landscape, economic prospects and heritage value—with no recourse,” said Whiteley. “This is prejudicial and unfair.”

He says the province is signatory to statutes and memorandums of understanding with other governments to protect endangered species and species at risk. Yet it grants wind and solar developers permits to ‘harm, harass and kill’ these animals and destroy habitat— without knowing how, or on what evidence, the province reached its conclusion.

This is a particularly acute question since a ministry expert on turtles testified earlier this month in an ERT hearing in Demorestville that he recommended against granting a developer the permit to ‘harm, harass and kill’ the Blanding’s turtle.

The group hopes to commence court proceedings shortly after Thanksgiving. They expect muscular response from the Ontario government and from the developer and the Canadian wind industry. If successful, they expect, the decision will be appealed—likely landing at the Supreme Court of Canada.

Another measure of the significance of the challenge is the participation by the Osgoode Law School’s Wood and students Stephen Gray, Sabrina Molinari, Timon Sisic, Amanda Spitzig and Imelda Lo.

“Each of them comes to the project with a remarkable CV,” noted Garth Manning. “They have taken to this challenge like ducks to water. It is such an important issue, with a great many powerful adversaries. We are fortunate to have them working with us.”

Manning notes that a judicial review is being funded initially by the group internally. Much of the legal work will be done on a pro bono basis by Whiteley and the law school students, with research and evidence-gathering assisted by Anne Dumbrille and Allison Walker among others. He notes as well that this effort is not meant to conflict or compete with other appeals— but rather it is a parallel examination of the impact the GEA has had in upending justice, diminishing basic rights and contravening statutes the province is obligated to uphold.

The Alliance to Protect Prince Edward County (APPEC) is hosting a major rally in Milford on Sunday, which they hope will be a large and impressive statement about the prospect of as many as 29 50-storey industrial wind turbines erected around that community.

From 11 a.m. to 4 p.m. at the Milford Fairground, there will be music, food and inspiring words. Participants are encouraged to don their anti-wind turbine kit. At 12:30 p.m. participants will be asked to join hands to form a protective circle around Mount Tabor.

“We encourage everyone from across the County to join together to say that this is the wrong place for industrial wind turbines,” said Gord Gibbins, APPEC chair.

Comments (19)

  • February 5, 2017 at 9:48 am Beverley Harris

    On Amherst Island we are critically close to having 27 of these monoliths erected in this beautiful place. We’ve been fighting against this travesty for the past 7 years, all to no avail. Please advise the Assoc. to Protect Amherst Island (APAI) where this injunction now stands in its progress. We need help now!

  • November 19, 2015 at 11:25 am lynda

    It is well past Thanksgiving. Does anyone know the status of this challenge? Is it going forward?

    Surely the courts will see that our lives in Ontario are being run by a dictator with no conscience; one who cares nothing about the province, the people or the wildlife. She is a bad leader who is leaving a terrible legacy for our descendants. She refuses to discuss the issues. Only those who refuse to discuss their decisions know full well why….the fact is, it was a bad decision and they don’t know how to get out of it because too many dollars have changed hands.

    Editor’s note: Here is our most recent update.

  • October 6, 2015 at 4:37 pm Frank Bartelen

    Great news!! Thank you, thank you, thank you!
    So many people are supporting you!
    We Ontarians have been unlawfully abused by a dictatorial Liberal government
    that continues to be under investigation for corruption, scandal and mismanagement!
    How are they allowed to get away with it and continue building these wind farms!!??
    Our constitutional rights have been violated! There was no due diligence!

  • October 6, 2015 at 9:50 am Peter Barnes

    Thank You so much for standing up for our rights. We are so happy to see everyone fighting this. A law effecting so many people should be voted on by the people! Give us back our rights to choose for ourselves!

  • September 30, 2015 at 10:36 am Rose Danko

    At last some sanity THANKYOU………………………………..

  • September 30, 2015 at 9:47 am Sommer

    Thanks Rob for pointing this out. This information needs to be spread rapidly NOW. Gerald Butts is obviously not aware of the fact that alarmism based on false computer modelled data was used to frighten us into submission and acceptance that there needs to be all sorts of collateral damage to industrial scale wind projects.

    There is really no one to vote for in this election when one considers the industrial wind turbine issue and lack of commitment to make the necessary changes. The rural residents who are right now living with the negative effects of these turbines have daily threats that are not being effectively addressed. They’re being invalidated.

    This must change!

    It’s too bad that this is a political football. The energy issue is vitally important and ought to be dealt with by a body of non-partisan, highly relevant professional people.

    No energy choice should violate human rights.

    • September 30, 2015 at 9:26 pm Tom Clark

      Butts has been well aware of the false computer modelling data for many years and has been Trudeau’s puppeteer since their days in university.
      God help us if the Libs or NDP get elected.

  • September 28, 2015 at 4:52 pm Rob Budd

    This challenge to the ERT process is much needed and a long time coming. This province has been reduced to tin pot status in terms of treatment of rural interests and landscapes.
    In regards to the comment above re. Wynne/Trudeau, it should be noted Justin’s right hand man is Gerald Butts…Mr Guinty’s advisor and a principle in this Green Energy Act mess.
    Mr Butts also used his subsequent position with the World Wildlife Fund to promote wind development in Ontario. Given the assault we are seeing on wildlife habitat via the GEA, the audacity amazes me.
    So yes, despite being a one time Liberal I have to say… God help us in the event of a Liberal gov’t nationally.

  • September 28, 2015 at 2:29 pm Henry Reed

    Already Premier Wynne knows of this vast opposition to the Industrial Wind Turbine scam. She has spoken one on one to group representatives and even broached the comment, “will not be imposed on unwilling hosts”, with NO change. The Premier can no longer hide behind her Ministers and paid administrators on this unjust undemocratic law. It has appeared become partisan, only in the absence of just representation for rural residents from the Gov of Ontario and many ex Provincial Liberals have had to turn to neo Cons to speak for them. Mr. Trudeau certainly did not help himself by seeking the support of the Ontario Liberals. If the “Green Energy Act” of Ontario is the intended method or example of implementing energy initiatives, then it will be “open season” on the rights of rural Canadians Nationally. PREMIER WYNN, DO THE RIGHT THING, PUT A MORATORIUM ON THESE COMMUNITY KILLING BEHEMOTHS AND THEIR SCAMMING PROPONENTS AND READ THE SCIENCE AND CONCERNS OF THE OTHER SIDE. it is not what but where and bird and wildlife sanctuaries of Amherst Island and PEC are NOT the place.

    • September 30, 2015 at 9:18 pm Tom Clark

      ONTARIO is not the place.

  • September 28, 2015 at 10:23 am Hubert Groot

    Finally an all out assault on GEA! It is time to join in the legal fight to regain our freedoms from these unjust laws. How can a citizen like me help in gathering evidence to support the legal team?

  • September 26, 2015 at 12:53 pm Sarie Jenkins

    It also seems to me that gag orders on disclosing settlement details prevent the lager population from learning the very real impact that this industry has on rural Ontario.

  • September 24, 2015 at 8:41 pm Marc Raymond

    We all in rural Ontario realized this unfairness long ago and hope despite the record to stop the government from doing this to us.
    Amherst Island

  • September 24, 2015 at 4:06 pm Irene

    Well hello neighbor!!!
    The turbines you see across Long Point Bay, is where my home is located; in the historic village of Clear Creek. It now sits empty. Since 2008, my home has been surrounded by 18 1.65 mw Vesta wind turbines within a 3 km radius – one of the closest turbines being less than 400 meters from my home. My property is but a few kms from the UNESCO designated Long Point World Class Biosphere Reserve which is a part of the major migratory route in North America.
    Where were you when this development assaulted my community 7 years ago?
    I stood alone; sick, humiliated beyond, referred to as a NIMBY by family and neighbors.
    It’s good to see we have evolved to the status of NIABYs.
    Until the problem comes to their own back yard; one has a tendency to remain ignorant, turn a blind eye.
    It saddens me that generally, people are concerned about their own welfare and not that of their neighbors.
    I don’t wish the life of hell brought on by the development of industrial wind turbines on anyone.
    All the best to the Osgoode students. History is in the making, and, the Liberals and the Green Energy Act will go down. The corruption evident in our provincial government is criminal. Bye bye.

  • September 24, 2015 at 11:22 am Betty

    And there is a federal law called the Radiation Emitting Devices Act REDA which has authority over such things as microwave ovens, tanning beds and wind turbines according to Health Canada.
    This law is not enforced when it comes to wind turbines, likely for the very same reason.

  • September 24, 2015 at 10:53 am Prim Pemberton

    This is the reason I can never vote for the Ontario Liberal Party. The Green Energy Act is a disgrace in the way it discriminates between rural and urban communities. Congratulations on taking them on. Does anyone have an idea how the damage already done can be undone?

  • September 24, 2015 at 8:05 am Jack Knutt

    This project is only one of many that has been railroaded onto the public with very little public input. This Government has installed so so much legislation on the people of this province with no allowance for “proper” debate simply because they have a majority government. Wasteful spending has a whole new meaning attributed to this governing body, ignorance is at the highest level I have ever seen from any governing bod in my seventy-two years of living in Ontario.

  • September 24, 2015 at 7:53 am Mike Jankowski

    Having discussed this issue with several professionals and having testified at an Environmental Review Tribunal, whether the Green Energy Act was intended to facilitate harm to the Health and Wellness of people or not – the fact is it does.

    The people ruling over ERTs really have their hands tied. Instead of helping citizens with a nearly impossible challenge to prove serious and irreversible harm will occur prior to the project operating by investigating complaints, our MoE&CC, mandated to protect the Health and Wellness of Communities, uses our tax dollars to fly experts into town to dismiss the claims of people who actually have lived around large Wind Turbines and suffered.

    All this is abetted by the GEA, which acts not only as expediter, but steam roller, having stripped municipalities and people of several rights. The result has been harm to human Health and Wellness out of fear of conspiracy theorists. Well they certainly have been provided much to theorize about!

    I have recently seen some professionals asking questions in this area. They assign some credit to what people who have lived around large Wind Turbines and several experts are increasingly saying.

    I thank this group and wish them every good turn. It isn’t NIMBY, it is NIABY. (Not In Anyone’s Back Yard.)

  • September 24, 2015 at 7:45 am Dulcinea

    Wonderful news for all rural Ontarians. I was born in Picton, and now live in Port Ryerse, Norfolk County where we face the same dilemma. Already we have the industrial zones of turbines located on the west and the east of our lakefront which is an abhorent view on a lakeshore landscape which can be seen for miles in the inner bay. Port Ryerse is a historic village across from a World Biosphere Reserve and we have many eagles and migratory birds. We had barn owls, an endangered species, nesting here last year for the first time found in a years and the MNRF gave the permit after some deliberation to go ahead and destroy the habitat because they didn’t see them return in the spring. The cliff of glacial till is very volatile for erosion and water drainage, yet there is no cautionary thoughts about the people who live on that cliff right where they want to put them. Would they do that at the Scarborough Bluffs?

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