The right to be free from chronic annoyance is at the heart of a legal challenge that could shake Ontario’s multibillion wind-energy business, and limit other industrial development in rural areas.
It pits a family whose farming history goes back a century in Southwestern Ontario against the provincial government, and a consortium known as the K2 Wind Power Project, which includes global companies such as Samsung Renewable Energy Inc.
No evidence shows wind turbines directly harm human health.
The Canadian Press – Shawn Drennan, part of a four-family fight against Ontario’s wind-turbine legislation, is seen outside court in London, Ont., on Monday, Nov. 17, 2014. THE CANADIAN PRESS/Colin PerkelWind turbines are like new neighbours who might drive you to distraction and out of your home because you have no legal way to deal with the situation, a packed Ontario court heard Monday.
In submissions to Divisional Court, a lawyer for four families fighting large-scale wind-energy projects compared the turbines to a neighbour who is always noisy and in your face.
“This neighbour never once ruptured your eardrums but that neighbour slowly drives you crazy,” Julian Falconer told the court.
“These turbines are those nightmare neighbours.”
The families are trying to get the court to declare provincial legislation related to the approvals of large-scale wind farms unconstitutional.
In essence, they argue, the legislation makes it impossible to scuttle a project on the basis of potential health impacts.
“The priority is to get the turbines up come hell or high water and that’s what they do,” Falconer said.
Governments love windmills, people who live near them hate them. The result is a beautiful recipe for lawyers.
Mr. Falconer is one of the country’s top constitutional and human rights lawyers. He represented the Smith family in a lawsuit into the death of Ashley Smith in custody. He worked on the Ipperwash Inquiry. He represented Maher Arar in a suit against the federal government over his rendition and torture in Syria. The list goes on. Point is, Mr. Falconer takes a special interest in holding government to account.
On Monday he’ll be taking on windmills. He wants Ontario’s Divisional Court to overturn the regulatory approvals of three projects, the St. Columban Wind and K2 Wind Energy project in Huron County, and the SP Armow Wind project near Kincardine, Ont.
His clients, who live near the projects, fear the noise and vibration of the wind turbines will trigger a host of serious health problems. Mr. Falconer will argue in court that Ontario’s process for approving wind farms violates the Charter of Rights and Freedoms. Provincial legislation says anyone challenging a wind farm project before Ontario’s Environmental Review Tribunal must prove “serious harm” to human health. Mr. Falconer says that threshold is unfair because it is too high.
“The effects of wind turbines are felt in the most private and personal areas of residents’ lives, in their homes and beds, where the state has its lowest interest in intrusion,” Mr. Falconer submits in his written argument.
The Charter argument is a fairly new wrinkle in the fight against wind farms. But litigation itself isn’t. When the Divisional Court rules on the appeal, its decision will join the more than 30 Canadian reported court cases that have dealt with wind turbines — a number that shoots to nearly 100 when you include hearings before Canadian regulatory tribunals.