The landscape of Lake Superior has visually unmatched vistas and unbelievably gorgeous landscapes. The Group of Seven spent many years trying to capture the soul of its glorious majesty and its splendors are recorded on countless canvasses. However, nothing they painted can ever match the reality of its wonder. Now it is a prime location for industrial wind installations.
For Immediate Release: June 20, 2014
TURBINE PROJECT APPEALS CO-JOINED AND COURT DATES SET
The move to “Unite the Fight” has advanced another step. Three local wind groups, SWEAR (Safe Wind Energy for All Residents), HEAT (Huron East Against Turbines) and HALT (Huron-Kinloss Against Lakeside Turbines) have announced that on Monday, June 9th, the Falconer law firm successfully argued to have their Divisional Court appeals co-joined. The groups have been fighting against the construction of wind farms near Goderich, St. Columban and Kincardine respectively. Dates to hear this appeal have been set for November 17, 18 and 19, 2014. Falconers LLP is also seeking a date for a co-joined stay of the K2, St. Columban and Armow wind projects prior to the appeal in November.
The question arose at the March 1, 2013 Superior Court SWEAR (representing Shawn & Trish Drennan) hearing as to the ability of the Environmental Review Tribunal (ERT) to hear a question on the Canadian Charter of Rights and Freedoms (the “Charter”) and how the Green Energy and Economy Act and “level of harm” apply. Justice Duncan Grace stayed the proceeding until such time as a Renewable Energy Approval (REA) was granted for the K2 Wind project and an opportunity to appeal to the ERT presented itself. SWEAR was represented by Julian Falconer, a prominent human rights and constitutional lawyer.
Project approvals were granted by the Ministry of the Environment for the K2, St. Columban and Armow wind farms. As directed by Justice Grace, ERT appeals for all three approvals were filed. They were each heard by the tribunal and denied.
“It is important to note that not all of the constitutional issues were allowed in at the hearings”, explains Dave Hemingway, president of SWEAR. “Justice Grace gave us a right of appeal to the Divisional Court on a question of law if there was not a proper airing of the constitutional issues at the ERT level. We have followed that course of action and are happy to be joining forces with HEAT and HALT as we move forward.”
“The work of putting this case together has been ongoing since May 2011. A substantial record of evidence has been created to date. We are moving forward.” states Shawn Drennan.
Gerry Ryan, president of HEAT, commented that “at the heart of the lawsuit is a challenge under the Canadian Charter of Rights and Freedoms. If this Charter Challenge is successful, it will set a precedent and will assist all appeals and legal challenges going forward. Others can then raise the same issues and seek the same relief. Communities which are dealing with existing projects could also receive benefit.”
“This action has the potential to shift the burden of proof from the need to prove direct serious harm to human health to the need to prove the possibility of harm, a much lower and more reasonable threshold” says Kevin McKee, president of HALT.
Hemingway adds that there is a broader public interest being served. “It has taken time to educate the public to what is happening but the understanding is now clearly there. This case is for the people of Ontario. The government says that massive industrial wind turbine developments are safe. We, the people, are holding them accountable. The Charter is the government’s promise to every man, woman and child in Canada, guaranteeing that we will have security to conduct our affairs and lives in relative peace. The government of Ontario did not exercise due diligence when crafting the Green Energy and Economy Act. A very heavy handed approach was used. Ontario citizens should not take kindly to this type of governance.”
Groups from across the province have and continue to come together to support this Charter Challenge. SWEAR, HALT & HEAT report that they have been successful in their fundraising to date. They note that they have come a long way and they want to keep going – right to the Supreme Court of Canada if necessary. The groups express thanks to all who have supported them in the past. Members of the public can get more information or donate to this action by contacting one of the following:
Dave Hemingway: email@example.com 519-482-7005 Gerry Ryan: firstname.lastname@example.org 519-345-2620 Kevin McKee: email@example.com 519-396-8110
Interested observers continued to give up their personal time to attend the Divisional Court hearing today. About 40 people attended. It is wonderful how many people have been willing to come from the County in the middle of the week to support PECFN.
Sitting in the Court one begins to wonder about the whole process. PECFN is here to defend the decision of the Environmental Review Tribunal. The Tribunal is not in Court. The Ministry of Natural Resources is not in Court and yet the decision of that ministry to allow species at risk to be killed, harmed or harassed at Ostrander Point is being discussed at length. The Tribunal was a creature of the MOE and yet the MOE trying to prove that the Tribunal made the wrong decision. Shouldn’t the MOE be supporting its own creation? Myrna asks “Are we going down the rabbit hole here?”
The Gilead and Ministry of Environment lawyers spent the morning discussing whether the Environmental Review Tribunal’s decision was in conflict with the Environmental Protection Act and why there was no evidence given about the numbers of Blanding’s turtles at Ostrander Point, the amount of vehicular traffic or the potential increase in vehicular traffic if the project is approved. Throughout, the 9 turbine Industrial Wind Turbine project at Ostrander Point was described as a” Public Infrastructure Project”. As you can imagine, this description made the majority of the observers gag! The next topic was the suggestion that the Tribunal should have considered alternatives to the project – i.e. made a provision that the roads be closed to the public and offered to approve the project with that condition. Again there was protracted discussion about the relationship between the ERT and the ESA permit issued by the MNR.
Eric Gillespie spent the afternoon responding to the arguments of the MOE and Gilead. At this juncture we have to say a very special “Thank you” to Natalie Smith. Natalie spent the fall analysing the ERT decision and preparing for the counter appeal by Gilead and the MOE. She has been at Eric’s side throughout and provides the extra knowledge to make sure that we are successful in defending the appeal.
Justice Nordheim put a little wrinkle in the proceedings when he asked Eric to show him where in the ERT analysed the difference between “serious” and “irreversible”. He wanted to be able to follow the ERT’s reasons for coming to the decision that the Gilead project would cause irreversible damage to the Blanding’s Turtles at Ostrander Point. Of course, Eric and Natalie were able to find several instances in the decision that showed the analysis of the ERT and how they came to the decision to turn down the Gilead project.
The appeal continues tomorrow morning at 9:30. The APPEC appeal is scheduled for Thursday afternoon. I will report on the final few hours of the PECFN appeal tomorrow evening when I get back to the County.
Thank you to everyone for your continued support and for the encouraging messages.
I have spent months (since Aug 1) organizing the appeal of the Adelaide 38 turbine wind project to the Environmental Review Tribunal, that was approved in my township. Days on end (I had to quit working at the plant nursery), at the computer, the phone, from 6 in the morning til 10 at night. Appeals, witness statements, piles of disclosure, scheduling, motions upon motions….it just goes on and on. Incredibly intense. Like nothing I’ve ever done before. But I had a wonderful group of generous witnesses – brilliant, supportive people who put their ALL into this appeal. For this, I felt really humbled.
What happened was this: on a Thursday evening (Oct 10) a pile (foot high, I kid you not) of motions was dumped on me by NextEra and the Min of Environment – all aimed at eliminating almost every single witness I had carefully brought into the appeal. Amazingly, or maybe not, none of these motions overlapped with each other— NextEra chewed away at a specific list of witnesses, while the MOE ate up the rest. You’d think they would have some similar motions if they weren’t ‘working together.’ I was to respond by Tuesday (Oct 15) to this stack of papers. At the hearing I was able to get a whole whopping ONE day extension where I fought by teleconference for 3 of my witnesses. Two and a half hours on the phone; one hour of me speaking.
Yesterday evening, a day after the motions were heard, an order was issued that said I lost every motion. This really shouldn’t be a surprise to me or anyone (even the lawyers say we can’t win with the ERT anymore), but the reality of the ‘appeal process’ is pretty damn clear now. Something is rotting, and we are being told to eat it.
If you saw your witnesses be struck off like this, what would you do?
Dr. Sarah Laurie (Australia)– they have removed the “Dr.” from her name, even though she has a medical degree, and practiced as a doctor, but doesn’t now due to family illness – how does this make Ontarians feel that we have done this to Sarah?? Shouldn’t we be up in arms over this alone? No reasons have been given from the ERT for not qualifying her as a doctor, they just made the decision. She sits with her testimony, from other recent ERTs, in purgatory.
Mike McCann (Chicago real estate appraiser) – Struck off from being able to speak to the numbers that he sees showing human habitat destruction where wind turbines are installed. All because Nexterror argues humans aren’t animals…if we were turtles we would get a voice. I’m not exaggerating – this was the argument made, and amazingly won.
Ben Lansink (London real estate appraiser) – Struck for the same reasons as Mike.
Larry Swart – (resident affected by turbines) – Struck as a witness because he wouldn’t give the lawyers ALL of his medical records, prescriptions, doctor notes etc.
William Palmer –Professional Engineer Testimony limited. Not allowed to speak to health and safety concerns, even though as a professional engineer, he MUST alert officials if he sees a situation where harm is happening or will happen.
Rick James – (Michigan acoustician) – Testimony limited. Not allowed to speak to health impacts from noise, even though THAT is what acousticians do – calculate the noise that affects people!
Still on the chopping block and not decided yet:
Dr. Nina Pierpont (New York) – she WROTE the book Wind Turbine Syndrome – and yet, that doesn’t seem to be good enough for the other side. They want her testimony struck because she didn’t write out her testimony word for word, which isn’t required or necessary. Even so, I have no faith that the ERT will let her speak.
Harvey Wrightman, Larry Cook – to speak to wind leases – the stress caused by the wind developers on landowners, the unethical leases that bind people into contracts signing their health and their family’s health away. These will be struck too, on Tuesday, if I stick around.
Kathryn Minten (Organic Dairy farmer) had asked to have Party Status with 5 witnesses lined up. She was to speak to stray voltage. The ERT downgraded her to just a presenter – no witnesses allowed. This was only decided a few days ago — no explanation as to why.
That leaves us with 2 witnesses: me, and Muriel. No kidding. Do you believe this? Do. And I hope you are as spitting mad as me.
So do I slog through their system, just to say I did it, or do we throw it back in their face and call them out for the corrupt system they are? Remember — MONTHS of work was put into this appeal, doing it all ‘correctly’, with a budget of zero dollars and a lot of well written pro-bono work from these witnesses, and the ERT had the ability to throw out the vast majority of my testimony the day before the hearing starts, without any reasons noted.
We must protest. Don’t worry about me losing this appeal — they’ve killed it already.
I need your help on very short notice:
The first day of the hearing is to consist of Opening Statements, and more motion madness against our side.
Date: Tuesday October 15th
Place: Middlesex County Office, 399 Ridout Street North, London MAP
Can you please come – bring signs, bring voices, bring cameras, video cameras – and let’s protest the ERT once and for all. No more worrying about offending the ERT, they’ve basically made their decision already. Unlike judges, they always get to make their decisions without facing the people, safely tucked away in Toronto — and save for Ostrander’s turtle, it has never been in favour of the people.
Many of you have been through unfair ERTs (I’ve been to many, and an appellant at several now.) Many are currently faced with them with all the new approvals in the last few months, or in the near future. How can we continue to have any faith in this brutal system? How can we continue to let this happen? When you are told, “You have an opportunity to appeal the Ministry’s decision,” is this what we call an “opportunity”?
Please help spread the word. We have nothing to lose anymore, and we need your faces there!!