Judge says OMB offers limited justice—is the same true for the ERT?

Recently, lawyer and retired Ontario judge Peter Howden published a book on the Ontario Municipal Board, titled, The Ontario Municipal Board: From Impact to Subsistence 1971-2016.
Howden, a judge for 20 years, also served for 10 years with the OMB.
According to a review of the book by Ottawa Citizen columnist David Reevely, Howden’s opinion of the OMB is that killing it off would be better than leaving it to function as it is.
In our view many of Howden’s comments about the OMB (which was a key factor in approval of Ontario’s early wind power projects against community wishes) can also be applied to the Environmental Review Tribunal or ERT. Both are administered under ELTO or the Environmental and Lands Tribunal Ontario branch of government.
Howden says:
The people who staff the OMB are “unknown entities, people largely without any public profile who seem to do whatever they want without criteria, limiting elements, or ability to define why one group won and the others lost.” Further, Howden says, OMB members’ decisions may be one-page rulings that are issued after days of detailed testimony, or they are rambling documents in which rationale is buried.
“The price to be paid,” Howden writes, “…is the continued progressively worsening public cynicism and the record over the past 10 years of insufficient deliberation and writing time, inconsistency in policy and outcomes, reliance on part-time members …”
Howden also says the set-up of these tribunals is a problem and interferes with their mandate: the adversarial nature of the hearings, not unlike court battles, is unfair for residents fighting well-funded developers.

“Most homeowners these days are simply trying to maintain their homes and families. They do not have the thousands of dollars it takes to round up a team of professionals….This kind of inequality erodes any sense of justice.”

Lack of justice is emblematic of the hearings before the Environmental Review Tribunal where Ontario citizens spend hundreds of thousands of after-tax dollars to protect their communities and the environment, ironically from the Ontario Ministry of the Environment, which has a special, supportive relationship with the wealthy wind power developers it appears alongside in the hearings.
Countless appeals were mounted in Ontario by well-meaning dedicated citizens who took their fight for their community and environment to the Tribunal, without benefit of legal counsel at all, while wind power developers were represented by lawyers from Canada’s top law firms.

Millions spent by citizens

A recent informal poll of Wind Concerns Ontario member community groups reveals that communities have spent over $3 million in legal costs to mount appeals before the ERT, and that number is almost certainly understated.
Moreover, citizen evidence presented at the hearings, paid for by citizen dollars, is often critical to wind power project operations—even in appeals that have been unsuccessful, the evidence presented has resulted in changes to the proposed power projects. This evidence is usually indications of risks to the environment, facts that the Ministry of the Environment and Climate Change would have been aware of, if they did any oversight or checking on Renewable Energy Approvals … which they do not.
For example, the evidence presented on the danger to species such as the Blandings Turtle and the Little Brown Bat –paid for by citizens who raised money through spaghetti suppers and garage sales—won the day for the environment in several appeals. The appeal of the Ostrander Point project, which took years of work by Prince Edward County naturalist and community groups, not only resulted in overturning the approval for the project in a fragile environment, but also caused the Tribunal to refocus its aims, and conclude that, contrary to claims by the MOECC and developer lawyers, wind power was not necessarily a “greater good” that outweighs everything—balance must be achieved in protecting the environment.
In the fight at Clearview, citizen evidence showed not only was there danger to wildlife from the proposed wind power project, but there was a clear danger to human life from a project planned close to not one, but two airports.
Judge Howden concludes that the OMB should be a body worthy of respect.
We say, the ERT should be that, too.
Jane Wilson
President
Wind Concerns Ontario