Might v. right

Posted: January 17, 2014 at 9:10 am   /   by   /   comments (4)

It’s an obscenely unfair fight. I expect most people would intervene if they happened upon such a lopsided clash on the street. Or call the police. They would do something. It runs directly against our core sense of fair play. Of justice.

Consider the spectacle on display in a Toronto court room next week. On one side will be a handful of folks more knowledgeable about the nesting patterns of the whippoorwill than the finer points of administrative law in this province.

On the other side of the aisle will be the Province of Ontario, through its Ministry of Environment (MOE), the developer, Gilead Power Corporation, along with the entire Canadian wind energy industry through Can- WEA.

There are billions of dollars at stake in this hearing for one side. On the other, it is the sanctity of the natural habitat of a unique bit of Ontario.

For the developer, this is likely its last shot at salvaging a positive return from this project. This fight has already cost it millions of dollars. Every day Gilead executives linger in a courtroom, a hearing room or its lawyer’s office and not bulldozing roads into Ostrander Point, costs it many thousands of dollars more. This courtroom is likely the end of the road for this project.

Gilead Power is represented by McCarthy Tetrault, led by Doug Hamilton—a partner in the national firm that boasts more than 600 lawyers. Hamilton will be flanked on one side by Christopher Wayland, another partner at McCarthy’s. Wayland’s expertise is appellate litigation, that is, arguing appeals before this very court. On Hamilton’s other side will be associate lawyer Sam Rogers.

A phalanx of other legal resources will surely be just a Blackberry message away.

CanWEA, representing the industrial wind energy sector in Canada, has asked for and received the opportunity to intervene in this appeal. There is much on the line for these developers, financiers and operators next week in Toronto.

For decades, despite lavish subsidies raining upon the fledgling industry, corporate investment largely stayed away from the wind energy business. It was only when the Green Energy Act was passed, lowering, and in some cases eliminating, environmental protections and regulatory safeguards, did investors see a clear pathway to profit.

The game was rigged in their favour. All developers had to do was step up, get in line, do some paper work and then wait for the money to roll in. It was sweet arrangement. They surely knew the gravy train couldn’t last.

Still few expected the Environmental Review Tribunal to go so far off script in Prince Edward County. The decision by the provincially appointed Tribunal to revoke Gilead’s Renewable Energy Approval (REA) sent shock waves through the entire wind industry.

Until then a Tribunal had never done such a thing. Deemed a largely pro forma exercise, some developers had simply proceeded to build their industrial wind turbine projects, even as Tribunal hearings were ongoing. In fact, when the Tribunal released its decision in an appeal of the Kent Breeze project, near Chatham, in the summer of 2011, the turbines were already spinning over the heads of the objecting neighbours.

That a Tribunal would stand on its own two feet and pose serious questions about the impact of industrializing Ontario’s countryside and natural habitats is one thing. That it would actually revoke an approval already granted is a threat to every wind developer holding an REA in this country.

The wind industry has billions of reasons why it should want to overturn the Tribunal’s decision. A trickle of independent thinking could lead to a flood of folks asking serious questions about the cost to the natural world and human health of industrial wind turbine development. The pathway to profits could snap shut just as quickly as it was opened.

Surely the most puzzling lout with their knuckles aimed at PECFN and APPEC next week is the Ministry of Environment. Not just for the obvious reasons that it’s the MOE’s mandate to protect endangered species, rather than hold the door and provide direction markers for profit seekers to flatten them in the name of renewable energy.

No, the most puzzling bit is that the MOE could have peeled off from this melee at any time. The Environmental Review Tribunal is its mechanism. It is the MOE’s safeguard, created to prevent rash, ill considered decisions or unintended consequences. It ought not to have been in the fight at all.

And when this independent panel made its decision, the MOE ought to have boasted that the process worked. That it had provided the protectionthat Ontario residents expect of its agencies. It might have held the Tribunal’s decision up as proof that it wasn’t interested in wind energy at all costs. That there were some things, some lives worth protecting.

Instead, the MOE has lined up with the developer, its corporate lawyers, and the industrial wind energy lobby in its preservation of profits. And against a handful of field naturalists struggling to do all they can to prevent the extinction of the Blanding’s turtle and other endangered species at Ostrander Point.

How is it that elected governments and its institutions can stray so far, so that they become instruments of corporate profiteers.





Comments (4)

  • January 31, 2014 at 11:43 pm Pam

    Dick Hill…don’t speak for the majority. I assure you, you know not what you speak. using the words “free renewable energy” shows you’re lack of knowledge on the subject. You sir and those who think like you…are becoming the minority. People are connecting the dots… All one has to do it look at the price of hydro and watch our industries leave the province to know the price of this so call “clean wind energy” . The only thing green about wind turbines is the wind that blows…and it the subsidy money flowing into the pockets of foreign companies. OH And DEMOCRACY left the province the moment the Green Energy ACT was signed.

  • January 29, 2014 at 3:23 pm Dick Hill

    Your Might vs Right comment implying that turtles are more important than wind turbines is questionable. In a democracy collective rights are more important than those of special interest groups. The majority favour pollution free renewable energy over expensive nuclear fuel and petro power. For the Ostrander Point decision, the erection of only eight wind turbines in a former military range would have minimal effect on the already disturbed environment. That a very small population of Blanding’s turtles might be disturbed is a small price to pay for the benefits of clean wind energy. That the Blanding’s turtle is considered ‘endangered’ is an an anomaly as they can be easily purchased over the internet for mail order delivery.

  • January 29, 2014 at 9:52 am Jane Wilson

    Transcripts would be available at cost, probably in the 1000s, another way the public is disenfranchised. Mr Conroy does not overstate the cosy relationship between the government, the wind power developer, and the industry lobby group. The day I was there, the MoE lawyer was actually passing little notes to the power developer’s legal team, and at break, lawyers for all three were seen huddling in the hallway. Your tax dollars at work: helping huge corporations on the “pathway to profit” as Mr Conroy says.

  • January 20, 2014 at 7:59 pm Soundmann

    Are transcipts from this court going to be available to the public? If not, we need someone in the audience to dcument this.
    Welcome to the “Alice in Wonderland” world, folks.

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