The Wellington Times, November 13, 2015
Judicial review team challenging ‘oppressive’ Green Energy Act
When government and the interests of big business align, it is often individual rights and freedoms that get trampled upon, according to the Osgoode Law School students working with a group of County residents and lawyers seeking a judicial review of the Green Energy Act (GEA).
“When that happens, we rely on the law to restore the balance,” said Sabrina Molinari. “No one is above the law—not even government.”
Molinari is one of five Osgoode Law School students working with Alan Whiteley and other County residents who believe that the GEA is badly conceived and flawed legislation that overrides citizens’ rights and diminishes environmental protections and safeguards for the benefit of developers and big business. Three of the five joined supporters of the cause at the Grange of Prince Edward winery on Saturday.
A judicial review is a legal process to examine legislation or a government order and has the power to invalidate laws if they are found to contravene higher authorities such as the Charter of Rights and Freedoms.
It is a big job. Specifically, the group wants the court to examine how provincial authorities arrived at the decision to grant a developer with a Renewable Energy Approval (REA) for the White Pines wind project, which comprises industrial wind turbines stretching from Milford south toward the edge of the Prince Edward Point national wildlife area.

They argue that the impact of the proposed project on migrating birds, animal habitat, human health, the local economy and the built heritage of South Marysburgh was not properly assessed and evaluated. Further, they argue the GEA denies residents the protections and safeguards that govern every type of development other than renewable energy projects.
One example: the developer of the White Pines project is arguing before an Environmental Review Tribunal (Tribunal) that the province erred in its decision not to approve two of the 29 turbines it proposed due to concerns about the impact on built heritage. The developer is permitted a wide range of arguments, including the fact that it won’t make as much money as it had hoped. It is permitted, too, to argue the heritage value of the properties nearby the denied turbines has been overstated. This latitude is heavily biased in favour of the developer.
When residents, environmentalists and others argue against the project at the Tribunal, they are limited to just two arguments: will it cause serious harm to humans, and will it cause serious and irreversible harm to plant life, animal life or the natural environment. That is it.
Many believe the same issues identified in denying two turbines from the proposed 29 apply equally to other turbines that were approved. They aren’t allowed, however, to make this argument under GEA rules. Even if they made the argument, the Tribunal is barred from considering it. Similarly, South Marysburgh businesses can make a credible claim that their inns, restaurants and attractions will suffer when massive 500-foot high turbines swoosh overhead. But while the developer can argue financial hardship, local business owners cannot.
The GEA is riddled with such inequities. This is why it is being challenged. For at its core, it is a fundamentally oppressive and unjust legislation.
“Environmental issues are important to me,” said Timon Sisic, one of the five students working with Whiteley and his group on the legal challenge. “But what has become evident in the Green Energy Act is that big wind developers have co-opted the aspirations of millions of people like me. It can’t be renewable energy at any cost. That is where the law must be invoked to restore equity and justice.”
Amanda Spitzig sees the GEA as the triumph of ideology over individual rights. These are bright and accomplished students who encounter the broader issues of the public interest colliding with individual rights on a regular basis. Yet Spitzig believes human interests have been clearly derailed in favour of the interests of big developers.
“Citizens of affected communities, like this one, have not been heard,” said Spitzig. “That has to change.”
Alan Whiteley is spearheading the judicial review, along with Anne Dumbrille, Garth Manning and Allison Walker. He says mounting this challenge would hardly be imaginable without the work of the five law school students.
“We are very fortunate for their contribution,” said Whiteley. “They are highly skilled and committed. They have done some really good work.”
Whiteley says the students have produced the substance to support the various arguments the group seeks to make to the judicial review panel. The affidavits that form part of the Notice of Application total more than 800 pages and will top more than 1,000 when they are ready to be copied and delivered to the various ministries and attorneys general.
The next step will see these government agencies and authorities provide the group with the records showing how they reached their decision. From these documents Whiteley and his group will begin assembling the relevant facts and summary of legal principles.
Everyone involved knows they are tackling a very big challenge and that the outcome may be far reaching.
“We will make a statement,” said Whiteley.