Local groups disappointed by court decision

WEST LINCOLN — Local residents fighting existing and future wind turbines in the community had a disappointing end to 2014.

next it might be youJust days before the end of last year, the divisional court ruled against an appeal filed by Huron farmers Shawn and Trish Drennan and several others in that area.  Two local groups, West Lincoln Glanbrook Wind Action Group and Mothers Against Wind Turbines were anxiously watching the case, which was based on issues similar to their own appeals.  Both groups sought intervener status on the case along with 12 similar groups across Ontario. The case covers three windmill projects near Lake Huron. The Drennans will have a turbine 700 metres from their farmhouse and a transformer closer than that. The Dixons, also appellants on the case, will have two turbines as just over the 550-metre setback imposed by the Act. The Kroeplins will have an Armow Wind turbine 559 metres from their home — which they sold in July — and another 12 within two kilometres.

The case is the first to reach the divisional court level despite two dozen appeals having been filed against projects approved under the province’s Green Energy Act. The first step in fighting approval is an appeal to the Environmental Review Tribunal, which can only decide on whether or not approved projects pose serious risk to human or animal health or the environment.   MAWT will begin its appeal Jan. 26 and the WLGWAG, filed by Caistor Centre residents Ed Engel and Anne Fairfield, wrapped up its hearing in the summer.

The three-judge divisional court panel concluded in a Dec. 29 decision the ERT “did not commit an error of law in rejecting the appellants’ claims that the statutory review test violated their right to security” under the Canadian Charter or Rights and Freedoms.  The panel agreed with the ERT that the appellants failed to meet the “evidentiary threshold” so as to meet the “serious harm to human health test.” The panel also concluded that the Health Canada study released in November, which the appellants attempted to introduce as new evidence, did not assist the appellants in making their case as it clearly states the results do not permit any conclusions about causality.

“It’s disappointing,” said MAWT president Marianne Kidd. “There are still concerns that the government is not protecting families within Ontario.”

Kidd suspects the decision will impact their case, which moves to the hearing phase Jan. 26 at the Wellandport Community Centre.  The preliminary hearing, held last month, was attended by more than 150 people and Kidd is hopeful her group has a chance as the tribunal has allowed witnesses to testify on health impacts related to the economic impact of the project, something that has not been allowed in past hearings.

“We’re prepared to move ahead,” said Kidd. “For us it’s more about our democratic rights and getting everything on the record.

“They are too big and too close to people,” Kidd said of the Niagara Region Wind Corporation project her group is fighting.  The project, which was approved in late November, will see 77, three-megaWatt industrial wind turbines — constructed by Japanese company Enercon, which opened a factory in Beamsville to meet the project’s requirements — built mostly in West Lincoln with some in nearby Wainfleet and Haldimand. Kidd, who lives in Wainfleet, will have seven of the 135-metre turbines within two kilometres of her rural home, another 12 within three kilometres.

A few days before the Drennan decision was issued, Fairfield and Engel were notified by mail that they too had lost their tribunal case. It was no surprise to the couple, who have fears over how the turbines will impact gas wells in the area, including one close to their home.

“We were pleased that we had a decision before the six-month clock ran out on Jan. 3, because at least we had reasons, and, if no decision, the MOE director’s original decision to grant the REA on June 20, 2013, and the granting of the approval of the amendment to that REA on June 20, 2014, would stand,” said Fairfield. “That does not entirely diminish the results for us. We had expected to lose at the ERT hearing level, because all others had lost (one way or the other), but in our hearts we hoped that we would be successful because four of the five IWT’s were out of compliance on five property lines. That was just one issue.” 

The tribunal is the first step and appellants must prove the project’s approval will harm health. In the case of the HAF Energy Project in Caistor Centre, Fairfield and Engel had to prove the amended approval would harm their health.

“The decision was rendered on the basis that we did not prove that those non-compliances would cause serious harm to human health, or serious and irreversible harm to the natural environment,” said Fairfield. “ The onus is on the appellants to prove this, which is the basis for all ERT Hearings.  The proponents do not have to prove anything, especially that their project will not hurt anyone or any other living thing.”

Fairfield said the list of health effects from the five turbines that have been in operation since June 14, 2014, “is getting longer as more and more people are connecting their new conditions to the 5 IWTs operating in West Lincoln Township.  Some of these people most affected live up to 5 km away from the closest IWT.” While it is too late to use the information in her appeal, one person will present their symptoms as evidence at the MAWT appeal later this month. Fairfield said everyone in the province should pay attention to the case against what will be the tallest turbines in the province.

“The purpose is, again, to try to stop the erection of 77 of the tallest IWT’s in North America, with a nameplate capacity of 3 MegaWatts each, from being erected from Smithville to Lake Erie, and having the potential to affect 20 per cent of 10,000 people.  Step up to the plate and contribute financially to this effort. Remember that NIMBY means Next It Might Be You.

Grimsby Lincoln News By Luke Edwards, Jan 6 2015

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