White Pines appeal: different rules for appellants and wind power corporations?
Report on the Environmental Review Tribunal Hearing on the White Pines Wind Project
November 3, 2015
Henri Garand and Paula Peel, Alliance to Protect Prince Edward County (APPEC)
Day Two of the Environmental Review Tribunal (ERT) was again devoted to procedural motions.
The hearing began with the ERT panel’s ruling on two motions discussed yesterday. Finding the scope overly broad, the Panel dismissed a motion for disclosure of all Ministry of Natural Resources and Forestry (MNRF) documents related to species at risk from the White Pines project. However, it approved a second motion summonsing MNRF staff Joe Crowley and Kathleen Pitt and ordering them “to produce all documents in their possession or control related to the impacts of White Pines on species at risk in the vicinity of the project.”
APPEC counsel Eric Gillespie followed up the second ruling by presenting a motion for adjournment. He said there would be a need to assess Crowley’s and Pitt’s documents and perhaps to call more witnesses as a result of the evidence. Therefore, he proposed that the environmental case (or part of APPEC’s appeal) be adjourned till January and the health case rescheduled to precede it.
While Sylvia Davis, counsel for the Ministry of Environment and Climate Change (MOECC), took no position on the motion, Patrick Duffy, counsel for approval holder/wind developer WPD, opposed it vigorously. He argued that the ERT had already been delayed and that the two MNRF witnesses could readily be accommodated in the current schedule. After an early and long lunch break the ERT panel dismissed the motion to adjourn without citing reasons.
The panel directed the Parties to deal with the issue of the order in which witnesses will appear. This was complicated by the uncertainties of when MNRF witnesses would provide documents, how long MOECC would take for document review, and how much time APPEC experts would need to examine them.
The ERT next focused on a motion from WPD’s counsel to strike the Witness Statements of APPEC witnesses Dr. Michael Hutchins of the American Bird Conservancy and Bill Evans, who testified at the Ostrander Point ERT. Duffy cited case law to support his contention that it was too late to bring in these witnesses.
In his submissions Eric Gillespie questioned how WPD could raise issues about proposed APPEC witnesses when it has not yet provided its own complete list, such as its hydrology expert. He also argued that Mr. Duffy is reviewing Witness Statements not thus far filed as evidence. Most important, the appellants had no notice of any kind that this motion was going to be brought today. He asked why WPD did not have to follow the same Tribunal rules as the appellants have been doing.
After taking a recess to consider the submissions the ERT panel clarified that all Parties had previously agreed to discuss Mr. Duffy’s motion today. Mr. Gillespie stated for the record that the motion to have been discussed was not the motion now being put forward, and that the appellants were hearing this motion for the first time. The ERT ordered that the motion, evidence and all authorities be provided in writing.
The second day concluded with a short discussion on schedules moving forward. On Wednesday the ERT will hear Opening Statements from the Parties and Presenters. These will conclude the hearings for this week.
The ERT will conduct a Site Visit on Monday, Nov. 9.