Category Archives: legal challenges

‘It’s David versus Goliath’

“The people in this region deserve better than what they’ve received. They didn’t have a say in what happened, yet it’s happening, and happening very close to the town of Wallaceburg,” Violet said.

The group is trying to make the community aware of the project, said Violet. Not only are there concerns about potential problems with water wells, but there are also concerns about noise and low frequency sound levels, due to their large size.

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ILLUSTRATION BY J.C. FRANCO

By David Gough, Postmedia Network
Wednesday, November 29, 2017

Preparing for what they’re calling a ‘David versus Goliath battle’, a grassroots group is organizing opposition to the Otter Creek wind turbine project proposed for north of Wallaceburg.

But money is needed to fight a large wind company. Wallaceburg Area Wind Concerns has a GoFundMe account, which has brought in $1,325 of their $50,000 goal. As well, the organization is accepting donations at the TD bank branch on James Street in Wallaceburg.

Earl Towell, a member of the newly formed group, said donations are coming in to prepare for the fight.

“These things aren’t cheap. We’re up against a company with plenty of lawyer services. If we want to be able to put forward any kind of battle against this, we have to hire experts,” Towell said.

Along with lawyers, Wallaceburg Area Wind Concerns is looking at hiring expert witnesses.

The ministry is currently undertaking a technical review of the Renewable Energy Approval application for Otter Creek, which will include reviewing and considering all comments made about the company’s REA when it was posted to the Environmental Bill of Rights Registry earlier this year. Once the review is complete the REA can be appealed…

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Legal proceedings commenced

Press Release:  APPEC

October 11, 2017   Prince Edward County, Ontario

The Alliance to Protect Prince Edward County (APPEC) has commenced legal proceedings naming the Independent Electricity System Operator (IESO) and WPD White Pines Wind Inc. (WPD) as respondents. APPEC alleges that the Feed-In-Tariff (FIT) contract between the IESO and WPD should have been terminated as soon as it became evident that WPD would be unable or incapable of fulfilling the FIT contract terms.  These FIT contract terms have been made publicly available and are well known.

In 2010, a FIT contract for 60MW wind energy project to be operational within three (3) years was offered by the Ontario Power Authority (now the IESO) to WPD.   The contract allowed for termination if the project was not able to deliver at least 75% of the contracted power. A Renewable Energy Approval (REA) was granted to WPD by the Ministry of the Environment and Climate Change (MOECC) five years later in 2015.   Immediately after the MOECC approval, an appeal was made by APPEC to the Environmental Review Tribunal (ERT). In 2016 the ERT found that the project would cause serious and irreversible harm to the natural environment.  After allowing the proponent an opportunity to propose additional mitigation measures to prevent this harm, the ERT still found it necessary to remove 18 of the 27 wind turbines from the project.  As a result, the project is only permitted to erect nine (9) 2.05 MW turbines which can only fulfill approximately 30% of the original FIT contract requirement, far less than the 75% referred to under the contract.

APPEC has made an application to the Ontario Superior Court of Justice seeking a declaration that the FIT contract for the White Pines Wind Project is null and void and an injunction on any further work on the White Pines Wind project. A hearing on this matter is currently scheduled for November 17th, 2017 at 44 Union Street, Picton, Ontario K0K 2T0 at 10:00 a.m.

Samsung Files Legal Action Against Protesters

Has Samsung SLAPP’ ed  back at protesters of its North Kent Wind project?

“Strategic litigation against public participation (SLAPP) has been defined as a lawsuit started against one or more people or groups who speak out or take a position on an issue of public interest. The purpose of a SLAPP is to silence critics by redirecting their energy and finances into defending a lawsuit and away from their original public criticism. Concerns have been raised that SLAPPs also act as a warning to other potential critics. The effect of SLAPP suits is to discourage public debate.”

Read more about SLAPP lawsuits

Council of Canadians slams heavy-handed Samsung Energy legal tactics

Media Release
October 11, 2017

Chatham, ON – The Council of Canadians is condemning Samsung Energy for filing a million dollar plus statement of claim against Chatham area residents who blocked construction at one of 34 wind turbines the company is erecting as part of its North Kent One* wind power project.

Many of the people who took part in the 11 day blockade have filed well interference complaints against the developer, citing the vibrations from the company’s pile driving activity as the cause of the sudden influx of black silt in their wells. At least thirteen well interference complaints have been made since the company started pile driving for the turbine foundations last June.

According to the developer’s Statement of Claim, the impact of the construction delay caused by the blockade “amounts to costs ranging from $50,000 to $100,000 per day, covering only the current amount of labour and equipment idle.”

The Statement of Claim names Water Wells First spokesperson Kevin Jakubec and Cindy Soney as defendants. It also includes “other individuals who have been involved in the unlawful conduct….who have not yet been identified and have been named as John Doe and Jane Doe.”

The well water on the Jakubec family’s farm became polluted with black silt shortly after pile driving began nearby.

“Our well water was crystal clear for decades before the pile driving started,” said Jakubec. “Now, Samsung is claiming that we damaged them to the tune of millions of dollars. I wonder how they sleep at night because I sure can’t.”

In 2016, Kevin Jakubec challenged the government’s approval of the North Kent One project at the Environmental Review Tribunal where expert witnesses warned specifically that vibrations from pile driving could cause the pollution problems seen in the last few months.

“Million dollar lawsuits are usually meant to intimidate,” said Mark Calzavara, Ontario Organizer for The Council of Canadians. “But people don’t back down when it comes to protecting their water. The evidence clearly shows that the construction is causing the pollution. Samsung must stop this project now.”

* North Kent One Wind is owned and developed by Samsung Energy and Pattern Energy.

For more information or to arrange interviews:

Dylan Penner, Media Officer, Council of Canadians, 613-795-8685, dpenner@canadians.org. Twitter: @CouncilOfCDNs

Ontario Gothic

“So, a developer ruins drinking water without penalty, another bullies a young mother into silence, and yet another crushes rules meant to save an endangered species. This is our Ontario. There are dozens more distressing stories just like these. Too many sad accounts of families forced to leave their homes because the noise and vibration from the massive machines proved intolerable.”

Wellington Times, Rick Conroy
Mary Shelley is said to have conceived the story of Frankenstein, a manmade monster let loose upon the countryside, while under the influence of opium in the cold summer of 1816. The gothic horror story, it turns out, was the work of a dark imagination fuelled by opioids.

It begs the question: what was Kathleen Wynne and her government smoking when they let loose their own man-made monsters across rural Ontario—in the form of industrial wind developers and speculators?

Even if you buy the sentiment that their motivations were well-intentioned, the undeniable outcome of the Green Energy Act is that Kathleen Wynne and Dalton McGuinty have spawned armies of amoral monstrous corporate creatures and have let them loose to roam unfettered across the province. To wreak havoc in rural communities. To despoil the environment. To slaughter endangered species. To make folks sick.

Worse, our government has paved the way, clearing hurdles and slashing regulations to enable these creatures to prey upon vulnerable communities, natural habitats and endangered species. Now they have lost control of their grotesque creations. Even Kathleen Wynne must know how this story ends.

Near Chatham, folks believe the wind developer working nearby has poisoned their wells—allowing toxins into their drinking supply. They have done the testing. They have spoken out. They have protested. Marched on Queen’s Park. Kathleen Wynne has ignored them.

Wynne, her government and her supporters comfort themselves believing the scourge they have unleashed—though ugly and abusive— is a necessary evil. That the greater good is being served. They ignore the folks holding up jars of black liquid, pleading with the province to test their water, drawn from wells that have become undrinkable since the wind developer began driving piles into the bedrock to secure its massive wind turbines. Even Chatham- Kent’s mayor has demanded Kathleen Wynne intervene to protect these residents. It has made no difference.

Left without the protection of the province—without the safeguards that would protect them from any other development— these folks took matters into their own hands. In August, they began blockading the construction site— neighbours joining together to form a line against the threat to their drinking water.

On Monday, in a cruel blow, the developers— a Korean conglomerate and its American partner—won a court injunction barring any further blockades of the project. The judge said he wasn’t trying to muzzle opponents, but to “prohibit unlawful acts”.

In Ontario’s perverse hunger for industrial wind turbines, it turns out Chatham-Kent residents must first prove they have been poisoned by the developer, before they may seek justice. By then, of course, the damage will have been done. Recourse will expensive and, for most, unattainable.

Four years ago, the giant American wind developer Next Era sued Esther Wrightman for defamation. On her website she had altered the company’s logo to NextError and Next Terror. They wanted the logos removed or they would litigate the mother of two young children into oblivion. All these years later, the legal action is still pending. Wrightman wakes up every morning with the weight of this action still weighing on her head. Read article

Water is Life

Developers of North Kent Wind were granted an injunction to stop unlawful protests. Impacted residents meanwhile wait for Ministry of Environment and Climate Change (MOECC) responsible for issuing the approval of the project to take meaningful action over rising number of reports of disturbed and dirty water wells (current count: 13 wells impacted since construction for the wind turbines began).

Water Wells First Told To Play Nice

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North Kent Wind located in Chatham Kent- Ontario was granted an injunction against unlawful protests at its construction sites

BY PAUL PEDROOCTOBER 2, 2017 5:23PM@PaulPedroNews
Water Wells First cannot continue unlawful protests at North Kent Wind sites.

Justice Kirk Monroe made the decision at an injunction hearing on Monday afternoon, saying trespassers and law breakers will be arrested.

He agreed with North Kent Wind that an injunction to stop blockades and the occupation of the turbine sites is the only remedy to continue the work.

Water Wells First spokesperson Kevin Jakubec says lawful protests will continue around North Kent Wind sites and Ministry of Environment offices, adding that the injunction ruling doesn’t weaken their resolve.

“To say that Samsung has been done irreparable harm, I understand where they come from, but then turn around and say these families have had no harm done to them. I think that’s scandalous and an injustice,” says Jakubec.

North Kent Wind isn’t seeking any damages for, what they call, “irreparable harm.”

Water Wells First claims that wind turbine pile driving is causing well water to go murky with sediments, clogging filters and stopping the flow of water into homes….

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Seeking Justice for Rural Ontario

aTurbine 109_v1 CRWind turbine approval process unfair to public

JIM MCPHERSON, SPECIAL TO THE TORONTO SUN
THURSDAY, SEPTEMBER 28, 2017
Ontario’s Ministry of Environment and Climate Change (MOECC) has approved numerous wind energy projects across the province.

But what if many of these approvals were improperly done, as determined by a court?

Rural residents have appealed several wind projects to provincial tribunals, but most are denied because Ontario’s Green Energy Act permits these appeals only on very narrow grounds of irreparable harm to the environment or human health.

For that reason, a citizen’s group in Prince Edward County recently filed for a judicial review of Ontario’s wind turbine approval process, in Superior Court in Ottawa.

The appellant is a not-for-profit corporation composed of hundreds of Prince Edward County residents, who claim their Charter rights have been violated by Ontario’s Green Energy Act (GEA).

They contend their rights have been violated by the “institutional bias” of the MOECC, and by its failure to properly consider matters of direct relevance to the wind energy project approval process.

The filing also alleges “an egregious instance of regulatory capture”, of MOECC and its affiliated provincial agencies.

None of the allegations have been tested in court.

In the view of the appellants, rural Ontario citizens receive only minimal procedural fairness under the GEA.

During the project approval processes, they are not entitled to present direct evidence but are restricted to submitting comments to a website.

In many cases, the information on which they are asked to comment is incomplete, as yet undisclosed, or subject to later amendment.

Appeals to Ontario’s Environmental Review Tribunal (ERT) are possible, but again, only on very narrow grounds of proven, irreparable harm to the environment or human health.

Property owners living close to wind turbines have complained about the pollution of wells, restriction of land use, fires, flying debris, health impacts, killing of wild life, property value diminution and inhabitability of homes.

During and after construction, many municipalities are concerned about potential road damage, water pollution and financial damage to local economies.

Many residents complain that once wind projects are completed, the province fails to meaningfully enforce regulations connected with their operation.

Provincially regulated setbacks of turbines, while inadequate in the view of many rural citizens, nonetheless effectively mandate that wind energy projects are built only in rural neighbourhoods, as opposed to cities like Toronto.

Unlike cities, vote-poor rural communities are unable to successfully pressure the government to relocate wind projects they say are inappropriate.

By contrast, in vote-rich Oakville and Mississauga, urban residents convinced the Liberal government, leading up to the 2011 provincial election, to relocate two proposed natural gas-fired electricity plants at an eventual public cost exceeding $1 billion.

The Liberal government also suspended a proposed offshore wind project impacting urban ridings in Scarborough after protests by local residents.

Under the GEA, municipalities can no longer use official plans or land use bylaws to protect citizens from inappropriate land use.

Many believe this is a reprehensible failure by Ontario’s government, but it cannot be attributed solely to the provincial regulating agencies.

In many cases, skilled, professional staff working for these agencies have basically been rendered inoperative by provincial legislation that makes them ineffective.

Comparing rural citizens fighting industrial wind turbines to the Liberal government pulling the strings, one is reminded of what was said about Allied troops in the First World War: “We have lions led by donkeys”.

Perhaps the judicial review requested by Prince Edward County residents will help restore fairness to the battlefield.

Challenging Cost of Billions with Ontario’s Energy Fees

enercon turbines

The global adjustment charge is chiefly used to cover the difference between the province’s market price for power and the price guaranteed to hydroelectric, natural gas, nuclear, solar and wind generators through their regulated payments or contracts with the government, as well as the cost of conservation programs. All electricity customers in Ontario pay global adjustment, which can be a separate line or included in the commodity portion of their bill.

But the August lawsuit filed by National Steel Car (NSC) believes the revenue the IESO collects for the global adjustment, from the company “and others,” should be declared “an unconstitutional tax, not a valid regulatory charge.”

The company gives numerous reasons, including that the global adjustment allegedly “redistributes wealth from the consumers of electricity in Ontario to, among others, the generators of renewable electricity.”

Manufacturer launches challenge against power fee that has cost Ontarians billions

The lawsuit argues that the global adjustment fee is an unconstitutional tax imposed to fund the Ontario government’s policy initiatives

Geoff Zochodne September 21, 2017

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To the very end

To the very end…

“It will be expensive. And it’ll be expensive when I win my suit in Ottawa because that will make all of the IWT’s illegal, they’ll all have to come down, and somebody’s going to have to pay the bill.”
– Alan Whiteley re: Ontario’s “Fair Hydro Plan”

Alan Whiteley presentation to the committee on Ontario’s Fair Hydro Plan  links the government’s  response to escalating electricity rates and harsh decisions people are forced to make in the face of energy poverty.  Ontario is taken to task over to its failure to assess costs ,benefits and adverse consequences of its renewable energy policies.

 

heat or eatAlan Whiteley is the legal lead for the Judicial Review before the Courts of Ontario’s Green Energy Act (GEA).  The challenge is predicted to be successful and would result in making all erected Industrial Wind Turbines in Ontario illegal resulting in a very expensive bill to be paid as remedy.

For more information about CCSAGE Naturally Green’s Judicial Review of the GEA.

The following media report has an edited written version of Mr.Whiteley’s presentation to the Ontario Fair Hydro Act 2017 committee in June 2017:

Ontario’ Fair Hydro Act a Ponzi Scheme

amherst NS

 

 

Court Order Bans Defenders of Clean Water

 A Blessing in disguise. Time to take the evidence to Court.

WWF chained
Defenders of clean water chained themselves at the North Kent Wind Project construction site.  Blockades continued as reports of dirty water (*11 wells & counting*) continued to rise. All adverse effects said to occur after construction began for the project located in Chatham Kent, Ontario.

North Kent Wind agrees to cease construction at turbine site until matter returns to court

By Ellwood Shreve, Chatham Daily News
Thursday, September 7, 201

Construction will cease at one turbine site for the North Kent Wind project, but a court order is prohibiting anyone from blockading, obstructing or impeding access to any other construction sites for project.

However, the matter will return to court at the end of the month, when the grassroots citizen group Water Wells First plans to be ready to make its case for stopping the project, due to the impact vibrations from constructing the turbines have had on area water wells.

In a statement released Thursday, North Kent Wind stated it appeared before the Superior Court of Justice on Wednesday seeking injunction prohibiting blockades and other interference with the construction of its wind project.

“We respect the rights of citizens who disagree with wind energy or the project to have their voices heard,” the company stated.

“The motion for injunctive relief became necessary because some protestors were engaging in what we believe was unlawful conduct, raising serious concerns about the safety of workers and protestors alike,” the statement added.

North Kent Wind said it sought the assistance of the court to enforce the rule of law and keep the peace.

“At the request of the court and out of respect for those who oppose the project and wish to be heard, we agreed to cease construction at one turbine site, which is currently blockaded and occupied by protestors, until the motion is heard by the court on Sept. 28-29.”

The court has granted an interim order restraining and preventing anyone from blockading, obstructing, or impeding access to any of the construction sites for the project.

Kevin Jakubec, spokesman for Water Wells First, called the upcoming court appearance “a blessing in disguise.”

He said when the matter returns to court, this will be the first time, that he is aware of, that evidence will be brought before a court in Ontario regarding the damage a wind farm has caused to the environment and a water resource….

READ REST OF ARTICLE

Fairwind Project Approval Revoked

Collingwood_Airport_12[7] As described in greater detail below, the Approval Holder has proposed an amendment to the REA to include additional curtailment measures designed to reduce little brown myotis mortalities. The Tribunal finds that these additional measures, provided they are amended to require that they be implemented from sunset to sunrise, is likely to significantly reduce little brown myotis mortality over the life of the Project. However, as neither the Approval Holder nor the Director has proposed effective means to mitigate the serious harm to human health, as found by the Tribunal in its October 2016 Order, the Tribunal concludes that the decision of the Director should be revoked. As such, an amendment to the REA to address harm to little brown myotis via an amended mitigation plan is rendered unnecessary.

READ FULL DECISION & ORDERS HERE : 16-036 WIGGINS V. ONTARIO (MOECC)

brown bat
little brown myotis