Lawyers collaborate to restore rights removed by Green Energy Act

Lawyers working on a challenge of the Green Energy Act: the GEA has removed fundamental rights, and superceded 21 pieces of legislation in Ontario
Lawyers working on a challenge of the Green Energy Act: the GEA has removed fundamental rights, and superceded 21 pieces of legislation in Ontario

Wellington Times, September 23, 2015

Fixing a bad law

Filed under: News |

Law-StudentsLegal minds collaborate to restore rights and safeguards diminished by the Green Energy Act
The Green Energy Act (GEA) is the target of a proposed judicial review to be launched this fall. CCSAGE Naturally Green, a not-for-profit public interest corporation led by its directors Anne Dumbrille, Alison Walker and Garth Manning, believe the GEA is a fundamentally flawed piece of legislation. They argue the GEA tramples rights and freedoms, punishes rural Ontarians, contravenes statutes and conventions the province is bound to uphold, and, at its core, is fundamentally unjust.
One example: Currently, wind developer wpd Canada is appealing a decision, made under the provisions of the GEA, permitting it to build 27 of 29 industrial wind turbines it proposes in South Marysburgh. In making this appeal, the developer is allowed to make a wide range of arguments and present evidence in its favour. It will certainly argue that the decision will impair its ability to make money from the project. It may argue that the heritage value of the nearby properties has been overstated. It is likely to argue many things. Because it can.
Meanwhile, opponents of the project are permitted only to object on the basis that the project will cause serious harm to humans or serious and irreversible harm to plant life, animal life or the natural environment.
The developer is granted unlimited scope to argue in favour of its profit, while residents are restricted to just two near-impossible tests. The province designed the GEA this way.
Alan Whiteley, a lawyer acting for CCSAGE, considers the GEA a fundamental assault on the rights, freedoms and statutes that have been constructed to protect citizens and the environment from this kind of overreach by government. It is something, he argues, we must all resist.
Specifically he is asking the courts to examine the process by which the province reviewed and ultimately granted the renewable energy approval (REA) to wpd Canada for its White Pines project in South Marysburgh.
“We believe there is a reasonable apprehension of bias in the process,” said Whiteley. “The GEA has created a minority—residents of rural Ontario—and has taken away our right to object except for the narrowest of grounds.”
He argues that the Environmental Review Tribunal (ERT), as the sole appeal mechanism of an REA is a product of this bias.
He explains that under administrative law, the Ministry of Environment’s director plays a quasijudicial role—examining and weighing evidence and reaching a decision, for example, to grant a wind developer an approval, which could include a permit to “harm, harass and kill” an endangered species. But as citizens, we are precluded from knowing how that decision was reached— or whether it was fair.
To assist CCSAGE scale this legal mountain, the group has enlisted the assistance of York University professor Stepan Wood and five of his law students at Osgoode Hall Law School. Together, they are working to accumulate evidence and legal arguments to buttress the group’s claim that the GEA violates natural justice, prevailing statutes and individual rights in at least two dozen ways.
Whiteley returns to the inequity of the ERT appeal mechanism that enables the developer a wide scope of arguments, but restricts opponents to just two—human health and animals, plants and habitat destruction.
“Only the proponent may argue matters of heritage, economics or property rights,” explained Whiteley. “We are precluded by the act from showing how this project will impact heritage, the local tourism economy or property values. The ERT is part of the unfairness.”
He points to the divide created by the GEA in Ontario between rural and urban communities.
“In Toronto, you can rely on your official plan to protect you from industrial wind turbines from diminishing the value of your property,” said Whiteley. “In rural Ontario, local decisionmaking has been taken away. Our mayor has said clearly that this community is not a willing host to these projects. Yet the GEA permits it over the objections of the community.
“The GEA has created a minority in rural Ontario and taken away our right to object to development that fundamentally alters our landscape, economic prospects and heritage value—with no recourse,” said Whiteley. “This is prejudicial and unfair.”
He says the province is signatory to statutes and memorandums of understanding with other governments to protect endangered species and species at risk. Yet it grants wind and solar developers permits to ‘harm, harass and kill’ these animals and destroy habitat— without knowing how, or on what evidence, the province reached its conclusion.
This is a particularly acute question since a ministry expert on turtles testified earlier this month in an ERT hearing in Demorestville that he recommended against granting a developer the permit to ‘harm, harass and kill’ the Blanding’s turtle.
The group hopes to commence court proceedings shortly after Thanksgiving. They expect muscular response from the Ontario government and from the developer and the Canadian wind industry. If successful, they expect, the decision will be appealed—likely landing at the Supreme Court of Canada.
Another measure of the significance of the challenge is the participation by the Osgoode Law School’s Wood and students Stephen Gray, Sabrina Molinari, Timon Sisic, Amanda Spitzig and Imelda Lo.
“Each of them comes to the project with a remarkable CV,” noted Garth Manning. “They have taken to this challenge like ducks to water. It is such an important issue, with a great many powerful adversaries. We are fortunate to have them working with us.”
Manning notes that a judicial review is being funded initially by the group internally. Much of the legal work will be done on a pro bono basis by Whiteley and the law school students, with research and evidence-gathering assisted by Anne Dumbrille and Allison Walker among others. He notes as well that this effort is not meant to conflict or compete with other appeals— but rather it is a parallel examination of the impact the GEA has had in upending justice, diminishing basic rights and contravening statutes the province is obligated to uphold.
The Alliance to Protect Prince Edward County (APPEC) is hosting a major rally in Milford on Sunday, which they hope will be a large and impressive statement about the prospect of as many as 29 50-storey industrial wind turbines erected around that community.
From 11 a.m. to 4 p.m. at the Milford Fairground, there will be music, food and inspiring words. Participants are encouraged to don their anti-wind turbine kit. At 12:30 p.m. participants will be asked to join hands to form a protective circle around Mount Tabor.
“We encourage everyone from across the County to join together to say that this is the wrong place for industrial wind turbines,” said Gord Gibbins, APPEC chair.

What's your reaction?


  • Sommer
    Posted September 24, 2015 5:51 pm 0Likes

    This is such good news!
    When I think about the conversation that is currently happening regarding a RICO lawsuit against all who have been key players in the man made global warming/climate change alarmism based on the computer modelled data used by the IPCC that has been proven wrong by scientists who are being attacked for asking crucially important questions:
    -and I reflect on Senator Bob Runciman’s call for a through re-examination of the Green Energy Act, I am encouraged.
    We also have 3 MPs and a persistent body of courageous Municipal leaders pushing for enforcement of the REDA.
    We will get to the bottom of this violation of human rights in rural Ontario!

  • Andre Lauzon
    Posted September 24, 2015 6:03 pm 0Likes

    I’ve been hoping for a long time that someone would challenge this trampling of democratic rights. It is a shame that the MPs that were sitting in the assembly when this law was voted on, like numbskulls, just followed the party line and disregarded the welfare of the people. Great human beings they are.

    • ScepticalGord
      Posted September 25, 2015 12:14 am 0Likes

      “It is a shame that the MPs that were sitting in the assembly when this law was voted on …”
      Let’s blame the right people here: you mean the Ontario Liberal and NDP MPPs.

  • Gord Schneider
    Posted September 24, 2015 6:21 pm 0Likes

    I want to wish these folks the very best with this. It’s an absolute pleasure to know that somebody this good is taking up the good fight. The people of rural Ontario deserve no less.
    Thank you so very much for stepping up.

  • David Watson
    Posted September 24, 2015 9:54 pm 0Likes

    I wish to express my appreciation for the effort that you will make to prove that the rights of persons throughout Ontario have been trampled upon by this misguided legislation, the GEA. Many people have been treated as no persons by this government and there is no recourse available for the common individual to be heard. I have attended open houses which are staged and did not offer any information to inform the public. People have been intimidated by consultants and owners by filming them and demanding their names and addresses. The province even called on undercover OPP officers and dressed officers to control and intimidate people. People who are primarily farmers and have not once demonstrated any aggression. There is of course much more, but rural Ontarians have tried to fight this undemocratic process at every turn. If you look at the approvals versus the number of failed applications you will find only one or two. Thank you again and God’s speed.

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