Watch for the “Catch 22” and other terms in wind power leases, lawyer says

In this week’s edition of Ontario Farmer is an article by retired QC Garth Manning and Wind Concerns Ontario president Jane Wilson, advising landowners to get legal advice before signing any lease or option to lease for wind power projects and associated equipment.

Although Large Renewable Procurement II is “suspended” the government fully intends to bring it back (after the 2018 election), and the FIT 5.0 process is currently accepting applications for wind power projects with equipment less than 500 kW. (See story today about Brant County being approached for support here.)

Wind power contracts can be very one-sided ... and not in favour of the landowner, says an Ontario lawyer
Wind power contracts can be very one-sided … and not in favour of the landowner, says an Ontario lawyer

Here is the article:

Clients need help with complex wind turbine lease documents

In answer to Ontario citizens’ concerns about rising electricity bills and the fact that Ontario now has a surplus of power, the provincial government suspended its process to accept new bids for wind and solar power in 2017.

While the process is on “hold,” wind power developers are still holding open houses and prospecting for willing landowners to sign Options to Lease land for wind turbines and associated equipment, in hope the contract process will resume after the provincial election in 2018.

Landowners should know that these are very complex documents and they need legal advice before signing. Some option/lease agreements contain a box to be checked that means the landowner has read the agreement and waives legal advice. That may not be the smart move. The Ontario Federation of Agriculture, for example, advises members to seek legal advice before signing.

Why? There are many implications to signing an Option to Lease (which converts to a Lease if the company gets a power contract) including rights to use of the property, first right of refusal at time of sale or if the owner wishes to sever property, even the ability to speak out if there are side effects of having turbines on the land.

The fact is, current forms of options/leases are very one-sided in favour of the wind power developer and should be reviewed literally word for word by an independent lawyer. It’s easy to focus on the dollar amount offered by the developer, and ignore other, important aspects of the agreement. For example, some leases contain cancellation options for the power developer, but most do not provide any option for the landowners to terminate the agreement if they change their minds.

Wind power developers always create a separate corporation to own and operate each project. Its assets include, in Ontario, the Renewable Energy Approval, the contract with the government to supply power, the options/leases for the land for turbines and equipment, and any agreements such as for road use with municipalities.

These corporations are usually mortgaged to the hilt. All assets can be sold to another company without consent of the landowners; the buyer could be a dummy company without assets, which is unwilling or unable to perform any obligation of the original company, including, the decommissioning or dismantling of the huge towers.

There are key financial considerations to consider above the lease amount: having a lease on the property may affect the owner’s ability to use the land as collateral for financing; construction liens may also be filed against the project and will appear on the landowner’s title. …

Read the full article here. windfarmcontractscomplexnovember-2016

Wind power approval process must change, says Wind Concerns Ontario

Devastation in Prince Edward County as power developer proceeded with unauthorized construction activity while approval under appeal. That appeal was eventually partially successful. [Photo: APPEC]
Wind Concerns Ontario says Ontario’s Renewable Energy Approval process is not protective of the environment. Pictured, devastation in Prince Edward County as power developer proceeded with unauthorized pre-construction activity while its power project approval was under appeal. That appeal was eventually partially successful.  [Photo: APPEC]
November 1, 2016

Comments filed on Renewable Energy Approval process

“The litany of failures is astounding,” says president of community group coalition

Wind Concerns Ontario filed comments with Ontario’s EBR yesterday, with recommendations on revisions to the Technical Guide for the Renewable Energy Approval process for industrial-scale or utility-scale wind power projects.

Basically, WCO said, the guidelines for the power industry are not protective of the environment … and there is plenty of evidence to prove it.

In short, the requirements in place for companies to get approval are not adequate, there is not enough proper oversight by the Ontario Ministry of the Environment and Climate Change (or even, capacity to do fulfill that role), and there is no check on compliance with Renewable Energy Approvals post-operation.

  • Findings from the ERT decisions and other legal activities have shown that the current process is not adequate to assess the expansion of renewable energy generation while upholding the government’s commitment to protecting the environment.
  • The process contains no provisions to discuss the creation of clean energy jobs and encouraging energy conservation.
  • The proposed process does not reflect decisions from the Environmental Review Tribunals (ERT)

“The fact is, almost every single wind power project that received an approval in Ontario has been appealed on the basis of protecting the environment and human health,” says Wind Concerns Ontario president Jane Wilson. “And four of those appeals have been successful. The Ministry should be embarrassed that ordinary citizens are not only taking on this protective role, but that they find information about these projects and the damage they will cause, that Ministry staff were not aware of.”

Wind Concerns not only recommended more stringent requirements for a Renewable Energy Approval, the coalition of community groups and Ontario families repeated its call for municipal support to be a mandatory requirement for wind power project approvals.

“Municipal governments are the local voice of the people and communities,” says Wilson. “And they know best what kind of development is appropriate and sustainable. They are also aware of conditions locally that logically should prevent a wind power project — but those voices are not listened to under this process.”

Thousands of noise complaints have been made to the Ministry of the Environment and Climate Change, Wind Concerns Ontario says, which is a clear indication of the failure of the REA process. Moreover, MOECC protocols for measuring wind turbine noise emissions – when they do measure at all as follow-up – are not adequate and do not capture the full range of problematic environmental noise.

“In fact, the litany of failures of this process is astounding,” says Wilson.

The method in which projects are announced to communities is secretive and municipalities are forced to approve with almost no information on the impact of the power projects. Public “meetings” are a sham, consisting mainly of poster presentations and incomplete project information.

Post-operation, the numbers of bat deaths and bird kills far exceed what was expected from the wind turbines, noise complaints are being made more frequently as a result of more powerful turbines, and wind power companies have abused their approvals by removing trees from protected woodlands, for example, or placing turbines on sites not consistent with the approvals.

“Premier Wynne professed to be surprised recently at the removal of over 7,000 mature trees in the Niagara area for the huge power project there,” Wilson says. “Does the government not know what is really going on? The people of Ontario see the environmental damage being done and the effects on people’s health from high-impact wind power development — this process has to change.”

Wind Concerns Ontario

November 1, 2016

Trees being cut down along  1 km of the former old unopened road allowance and pioneer nature trail  known as Wild Turkey Road on the Oak Ridges Moraine in an area designated High Aquifer Vulnerability, a Significant Recharge zone, where two streams that support trout habitat and 12 species at risk as well as species at risk butternut trees adjacent to the Fleetwood Creek natural area are being destroyed and/or endangered to make way for new access roads for the Sumac Ridge wind facility. Photo sent to Kawartha Lakes Councillor Heather Stauble.]
Trees being cut down along 1 km of the former old unopened road allowance and pioneer nature trail known as Wild Turkey Road on the Oak Ridges Moraine in an area designated High Aquifer Vulnerability, a Significant Recharge zone, where two streams that support trout habitat and 12 species at risk as well as species at risk butternut trees adjacent to the Fleetwood Creek natural area are being destroyed and/or endangered to make way for new access roads for the Sumac Ridge wind facility. Photo sent to Kawartha Lakes Councillor Heather Stauble.]

Aviation safety, endangered wildlife win Fairview appeal

In January 2014, John Terry, the lawyer for the well-funded wind power development lobbyist the Canadian Wind Energy Association (CanWEA) told the panel of judges in an Ontario court at the appeal of a decision at Ostrander Point, that their decision was very important for the future of wind power development in Ontario because, he said, “This [a successful appeal] was never supposed to happen.”

One might think that he meant the approval process was so rigorous that wind power projects should pose no danger to the environment or to people and that’s why “this,” the successful Ostrander appeal shouldn’t have happened. But no, what he meant was, the rules and procedures attached to wind power development were supposed to be so iron-clad that mere citizens acting on behalf of the environment, wildlife and their own health, could have no hope of success. Lawyers acting for appellants have said, the test set up by Regulation 359-09 to prove serious harm to human health and serious and irreversible harm to wildlife was impossible to meet.

Except, now, that test has been met.

Four times.

The successful appeals at Ostrander Point, White Pines, Settlers Landing and yesterday, Clearview, show that when proper attention is paid to the requirements to preserve the environment and actually balance development against potential harm, the wind power developments can be demonstrated to be in the complete wrong place.

But the wind power development industry, coached and encouraged by their huge lobbyist and the very compliant Ontario government, felt entitled to propose wind power projects wherever they found willing landowners. Such was the case at Clearview where the eight, 500-foot turbines were to be located near not one, but two aerodromes, the Collingwood Regional Airport and a private airstrip. WPD Canada felt so entitled to success and money that it believed it could locate huge turbines even where pilots’ safety would be in danger and where wildlife would almost certainly be killed.

The Environmental Review Tribunal decision was released Friday, October 7: yes, there would be serious harm to human health because of the risk to aviation safety and yes, there would be serious and irreversible harm to the endangered Little Brown Bat.

Paragraphs [149-151] are interesting: the appellants’ expert witness arguments were “informed and reasoned” the panel wrote, finding they had established “the evidentiary base to support their qualitative assessments.”

Although a remedy hearing is possible, the Tribunal expressed doubts as to the effectiveness of any measures proposed.

The Tribunal used very strong language in places in the decision, saying “it would be trite to say …” or “it is obvious …” and they noted the federal Ministry of Transport’s carefully crafted opinion letter on aviation safety at the airport.

The people of Ontario have despaired at times as wind power projects have been put in fragile environments, too close to people’s homes and workplaces, without any real demonstration of environmental benefit. Millions have been spent by ordinary citizens as they took on corporate Big Wind to defend—what? The environment against their own Ministry of the Environment.

One lawyer for the Ministry has often been heard to say “wind trumps everything.” She is wrong, as this latest decision demonstrates.

Actions taken in the name of preserving the environment must really do that, and not rely on ideology-based trite statements for justification. Ontario has still never done a cost-benefit analysis on its wind power program even though clearly, wind power has a high impact on the natural environment, on communities, and on the economy, without actual demonstrated benefits.

Clearview was a victory for all Ontario, and the environment.

Jane Wilson

(Volunteer) President

Wind Concerns Ontario

Wynne government reverses on airport wind turbines

The Ministry of Environment and Climate Change has insisted that there is no danger to two Collingwood airports from a wind power project, despite expert testimony at an appeal that danger was certain. Suddenly, the government has reversed its position. Is it enough?

The owners and pilots association can't believe anyone would put turbines at an airport
The owners and pilots association can’t believe anyone would put turbines at an airport

Simcoe.com, October 3, 2016

Wasaga Sun

The Ministry of Environment and Climate Change is pulling its support for two turbine locations at the Fairview Wind project because of safety concerns at the Clearview Aerodrome.

Dr. Raymond Cox, a risk assessment expert in public safety, energy, and transport, as well as fluid dynamics and turbulence, testified during the hearing in June the two locations were without a five-rotor-diameter distance from the Clearview Aerodrome approach centreline.

“As it was the opinion of all expert witnesses, who opined on turbine wake … that there was an unacceptable safety risk where turbines are located within five rotor diameters from the centreline approach, the director can no longer support the locations of turbines 3 and 7 as currently approved,” wrote MOECC counsel Sylvia Davis and Andrea Huckins in their closing submission to the tribunal in August.

Clearview Aerodrome owner Kevin Elwood, who is one of the appellants to the MOECC’s  decision to approve WPD Canada’s renewable energy application, said it calls to question all eight turbines.

Elwood said in his correspondence with the ministry prior to the project’s approval, he was assured that Transport Canada and Nav Canada were being consulted, and a thorough technical review would be conducted to ensure there were no risks to human health through aviation.

“That’s what they always said, over and over. Now, they can no longer support two locations due to the risk to human health through an aviation accident; what assurances does the public have the remaining six turbines are not also a safety risk,” Elwood questioned. “If two were missed through that comprehensive review by the director, the other six were assessed the same way, in my mind, I question whether the ministry did a risk analysis of all eight turbine locations respecting Clearview Aerodrome and the Collingwood Regional Airport.

“All eight impact my airport; they just went for the two closest.”

As to the other turbine locations, Davis and Huckins wrote there was no risk to human health.

“The appellants have argued that the turbines combined with bad weather, poor visibility, a distracted or inexperienced pilot, and\or mechanical difficulties, will combine into a tragic confluence of events,” the lawyers stated. “However they have not provided any quantitative analysis of the probability of each of these events occurring during the lifetime of the project, either separately or together.”

Otherwise, the province stated in its closing argument, the appellants have failed to meet the test the turbines pose a health or environmental risk.

“The appellants have offered nothing more than a series of concerns and hypothetical situations which, if a number of variables align, may result in a collision or crash. That is not the test,” wrote Davis and Huckins. “Evidence which merely speculates rather than providing a quantitative risk analysis does not meet the burden of proof facing the appellants.”

WPD Canada has not yet responded to Simcoe.com for a request for comment.

A decision by the tribunal is expected in October.

Wind turbine leases need detailed legal review, lawyer says

3-MW wind turbine and house near Brinston, south of Ottawa. Lawyers need to review every word of contracts for their clients. [Photo: Ray Pilon, Ottawa]
3-MW wind turbine and house near Brinston, south of Ottawa. Lawyers need to review every word of contracts for their clients. [Photo: Ray Pilon, Ottawa]
Lawyer Garth Manning, a retired Queen’s Counsel, advises lawyers that their help is needed by clients considering signing wind turbine leases or options to lease. In an opinion piece in the current Law Times, Manning says that landowners may focus only on the amount of money they can receive by signing the document, and overlook many important features of the agreement.

“Typically, the wind power proponent incorporates a subsidiary for each individual project. Its agents obtain turbine sites from farmers who have limited understanding of what they’re being asked to do, which is to sign an Option to Lease many pages long; in this option may be a ‘further assurances’ clause that obligates them, if the option is exercised, to sign a form of lease.

“That document, many more pages long, is by far the most lessee-friendly imaginable to any real property lawyer, experienced or otherwise.

“Those farmers badly need legal advice; local law associations should emphasize this to their members,” Manning advises.

Manning emphasizes the impact of the agreement on farming practices, and on communities. Neighbours may not be too happy with the noise and effect on property value, he adds.

“Many of us went to law school in the belief that lawyers help people in trouble,” he concludes for the Law Times readers. “Here is a golden opportunity for lawyers to step up and provide the advice that is so badly needed.”

Read the full article here.

More Ontario municipalities demand final say in wind power sites: more than 100 stand up to Wynne government

Ontario municipalities want local land-use planning control back
Ontario municipalities want local land-use planning control back

September 11, 2016

Now 111 municipalities in Ontario have either passed or formally endorsed a resolution at Council, demanding that municipal support be a mandatory requirement for contracts in the Wynne government’s next round of Large Renewable Procurement.

The municipalities include several urban municipalities with rural components including Ottawa, Hamilton, and Stratford.

“That number, 111, represents more than a quarter of all Ontario municipalities,” says Wind Concerns Ontario president Jane Wilson.

“They believe that they are the best judge of where important infrastructure should be sited, and that they are the voice of their community concerns about where power generation projects are located. Development is only sustainable and appropriate where there is community support — and as we are seeing, many rural communities don’t support the government’s policy of forcing these power facilities on people, and the environment.”

Local land-use planning for developments such as wind and solar power generation facilities was removed by the Green Energy Act in 2009.

Despite a surplus of power in Ontario, the cost of long-term contracts for renewable sources of power,  and province-wide protests about Ontario’s rising electricity bills, which have forced several hundred thousand residents into “energy poverty,” the Wynne government still plans to launch a new procurement process in 2017. The deadline for corporate wind power developers to file a request for qualification with the IESO was Thursday, September 8th.

Energy analyst Tom Adams told Global TV news last week that the government needs to cancel contracts where it can, and cancel the planned Large Renewable Procurement (LRP II).

More Ontario municipalities demand municipal support be mandatory in wind power contract bids

NoMeansNo_FB (2)

As of August 19, 2016, 86 Ontario municipalities have passed a motion or resolution at Council, demanding the Wynne government and the Independent Electricity System Operator (IESO) make municipal support a mandatory requirement for new wind power contract bids going forward.

Despite a surplus of electricity and the fact that Ontario ratepayers take losses weekly on sell-offs of extra power, while paying generators to “constrain” or, in the case of hydro and nuclear, to spill or steam off, the Ontario government still plans to proceed with a request for proposals for 600 megawatts of new contracts in 2017. The new contracts will cost Ontario electricity customer billions, at a time when bills have risen dramatically, and more than 8 percent of electricity customers have allowed their accounts to fall into arrears, according to a report recently released by the Ontario Energy Board.

Wind power aiming at the wrong thing

Ontario’s “green” energy program, now widely regarded as a failure, was brought in to benefit the environment, specifically air quality. Ontario’s new Environmental Commissioner Dianne Saxe has commented that the government has made a mistake—the true source of emissions is in the transportation sector.

Municipalities say that wind power projects have been a very invasive and high impact form of infrastructure on their communities: aside from the increasing electricity bills (which have social costs in terms of energy poverty, resulting in more visits to food banks and greater strain on social services), reports of noise, inaudible sound and health effects, and environmental impacts such as the deaths of birds and bats.

As a result, several passed resolutions to the effect that they want municipal support to be a necessity in successful wind power bids. As a City of Ottawa councilor put it, before Ontario’s second largest city passed its own resolution, the siting of power plants should be in line with municipalities’ own development plans. Moreover, truly successful sustainable development must have “buy-in” from the community — there are many serious concerns about wind power projects that warrant municipal control over siting … or whether a project goes ahead at all.

“This has been growing over the last several years,” says Wind Concerns Ontario president Jane Wilson. “Three years ago, the Association of Municipalities [AMO] met in Ottawa and we attended a special meeting on wind power. Sixty-three municipalities were represented that day, and I recall one mayor saying, ‘We’ve been beaten up pretty badly’ by government and the wind power corporations. Now, the municipalities want the land use planning powers removed by the Green Energy Act returned—it’s the fair and transparent thing for this government to do.”

A symposium was held prior to the recent AMO 2016 conference in Windsor, attended by municipal representatives, the IESO, and the Energy ministry. The IESO told the municipal officials that they were open to change but that they were “bound” by ministerial directive.

Asking Wynne to restore democracy to rural Ontario

“Democracy should be restored,” comments North Frontenac Mayor Ron Higgins, whose municipality faced proposals by two huge wind power developers in the last contract round and where a plebiscite revealed more than 80 percent of voters did not support the power projects. Environmental impact and property values were key concerns for the community. “I am hopeful the new Minister of Energy will meet with municipalities to discuss this,” he says.

While the 86 communities represents about 20 percent of all municipalities in Ontario, in fact it is the majority of municipalities that are vulnerable to wind power projects. The 86 span the province from east to west and include several in Ontario’s North. Several of the municipalities already have wind power projects operating—they have seen the complications first-hand, and have had enough.

See the list of communities here:

  1. Adelaide-Metcalfe, Middlesex County
  2. Alfred & Plantagenet, Prescott-Russell County
  3. Amaranth, Dufferin County
  4. Asphodel-Norwood. Peterborough County
  5. Algonquin Highlands, Haliburton County
  6. Armour, District of Parry Sound
  7. Arran-Elderslie, Bruce County
  8. Ashfield-Colborne-Wawanosh, Huron County
  9. Bayham, Elgin County
  10. Bluewater, Huron
  11. Brockton, Bruce
  12. Brooke-Alvinston, Lambton
  13. Bruce Mines, Algoma District
  14. Cavan-Monaghan, Peterborough
  15. Central Elgin, Elgin
  16. Central Huron, Huron
  17. Chamberlain, Timiskaming District
  18. Chatsworth, Grey County
  19. Clarington, Region of Durham
  20. Dutton-Dunwich, Elgin
  21. East Ferris, Nippissing District
  22. Elgin, County of
  23. Elizabeth-Kitley, Leeds and Grenville County
  24. Essex, Essex County
  25. Enniskillen, Lambton County
  26. Gananoque, Leeds and Grenville
  27. Georgian Bluffs, Grey
  28. Greater Madawaska, Renfrew County
  29. Greater Napanee, Lennox and Addington County
  30. Grey Highlands, Grey
  31. Hastings, County of
  32. Hastings Highlands, Hastings County
  33. Havelock-Belmont-Methuen, Peterborough
  34. Hawkesbury, Prescott-Russell
  35. Hornepayne, Algoma
  36. Howick, Huron
  37. Huron, County of
  38. Huron-Kinloss, Bruce
  39. Kawartha Lakes, City of
  40. Killarney, Sudbury District
  41. Kincardine, Bruce
  42. Lakeshore, Essex
  43. Lambton, County of
  44. LaSalle, Essex
  45. Laurentian Hills, Renfrew County
  46. Leeds and the Thousand Islands, Leeds and Grenville
  47. Lennox & Addington, County of
  48. Madawaska Valley, Renfrew
  49. Mapleton, Wellington
  50. Magnetawan, Parry Sound
  51. Marathon, Thunder Bay District
  52. McDougall, Parry Sound
  53. McNabb Braeside, Renfrew
  54. Meaford
  55. Merrickville-Wolford, Leeds and Grenville
  56. Newbury, Middlesex
  57. Mono, Dufferin County
  58. Morris-Turnberry, Huron
  59. Nairn and Hyman, Sudbury District
  60. North Frontenac, Frontenac County
  61. North Glengarry; Stormont, Dundas and Glengarry
  62. North Grenville, Leeds and Grenville
  63. North Perth, Perth
  64. North Stormont; Stormont, Dundas & Glengarry
  65. Northern Bruce Peninsula, Bruce
  66. Ottawa, City of
  67. Perth, County of
  68. Peterborough, County of
  69. Plympton-Wyoming, Lambton
  70. Prescott-Russell, United Counties of
  71. Prince Edward, County of
  72. Rainy River, Rainy River District
  73. Ramara, Simcoe County
  74. South Bruce Peninsula, Bruce
  75. Southgate, Grey
  76. Southwald, Elgin
  77. Tillsonburg, Oxford County
  78. Trent Lakes, Peterborough
  79. Tudor and Cashel, Hastings
  80. Tweed, Hastings
  81. Val Rita-Harty, Cochrane District
  82. Warwick, Lambton
  83. Wainfleet, Niagara Region
  84. West Grey, Grey
  85. West Lincoln, Niagara
  86. Zorra, Oxford

Amherst Island appeal dismissed: community to meet soon on next steps

Amherst Island: a David vs Goliath fight, say residents defending their community, environment, and health
Amherst Island: a David vs Goliath fight, say residents defending their community, environment, and health

Almost a year after the Ministry of the Environment and Climate Change approved the project planned by Windlectric/Algonquin Power on Amherst Island, the Environmental Review Tribunal has dismissed an appeal of the power project.

The appeal was based on the impact on the natural environment, heritage features, and human health.

While the Tribunal was complimentary in a number of areas on the evidence presented by the Appellant, the Association to Protect Amherst Island, it did not find that the evidence of harm put forward was irreversible or met the standard of the legislation. For the Blandings turtle, for example, the Tribunal allowed that turtles did inhabit the Island but that their habitat would not be affected by the power project, and that the number fatalities likely would not result in irreversible harm to the species.

APAI has said it will meet this weekend and discuss next steps; the community has already considered for a Judicial Review of the power project approval.

For more information please see the APAI website here, and note the need for funding assistance. http://www.protectamherstisland.ca/sad-day-amherst-island/

Wind farm appeals no longer a ‘rubber stamp’ after Ostrander Point community success, says lawyer

“If a sports team went out week after week for the better part of a decade and lost every single game, you would have to question what is going on,” says environmental lawyer Eric Gillespie. “Even the Toronto Maple Leafs win some games.”

Ostrander-Tree
Photo: The Wellington Times

The Wellington Times, July 15, 2016

Ostrander Point Tribunal drags scrutiny of wind and solar projects out into the open

Only when time has passed and the memories of the the yearslong struggle begin to fade, will we know that industrial wind turbines have been banished from Ostrander Point for good. But for now, the creatures who occupy or pass through this bit of land on Prince Edward County’s south shore may do so without the threat of bulldozers rolling across the terrain or 50-storey machines whirring overhead. Maybe forever.

The Ostrander Point wind project has been stopped. Its appeal period has expired. There remain scenarios in which the project could be revived, but that likelihood is now remote, according to the lawyer acting for the Prince Edward County Field Naturalists (PECFN).

“There is rarely a final chapter written in these types of sagas,” said Eric Gillespie. “It is fair to say, however, that the odds of this going further are extremely low. To the best of our understanding, the Gilead Power permit is revoked. That decision is not being appealed. The file has concluded.”

The volunteers who form PECFN allowed themselves to exhale on Thursday evening—after the developer’s appeal period had expired.

“It is particularly wonderful to finally realize that the battle is over,” said Cheryl Anderson of PECFN.

WHAT IT MEANS
The decision by the Environmental Review Tribunal—written by Heather Gibbs and Robert Wright—fundamentally alters the future for Ostrander Point, and has the potential to disrupt other projects involving land where Blanding’s turtles are known to nest, including White Pines and Amherst Island. But it has the potential to reach much further. Indeed, it has the potential to shake the very foundations of the Green Energy Act (GEA).

In 2009, the provincial government, led by Dalton McGuinty, was unsatisfied with the pace of wind and solar energy development in the province. Deadline after deadline had passed and his targets for renewable energy had gone unmet. A panel of experts had reported a year earlier that the regulatory process— the safeguards that protect human health, the environment and even the electrical grid itself—were causing the delays to wind and solar development across the province.

The GEA set out to remove these hurdles—eliminating safeguards in the Ministry of the Environment, Ministry of Natural Resources and Forestry, Ministry of Energy and the Ontario Energy Board, among others.

Since the GEA was enacted, industrial wind and solar projects have been reviewed and approved behind closed doors in a mostly tightly controlled process. The only nod to public transparency and accountability was a single Environmental Review Tribunal.

But the test, established under the GEA, to overturn or amend a project at the Tribunal stage was thought to be impenetrable. That is, until now.

The only way to block a project with a renewable energy approval (REA), according to the legislation, is that an appellant must prove the risk posed by the project will cause “serious harm to human health,” or “serious and irreversible harm to plant life, animal life or the natural environment.”

dozens of appeal hearings, predictions of impenetrability proved true. Gillespie says this led many to despair the review mechanism was just a formality.

“If a sports team went out week after week for the better part of a decade and lost every single game, you would have to question what is going on,” said Gillespie. “Even the Toronto Maple Leafs win some games.”

He says there was growing consensus among the legal community in Ontario that the test was being interpreted in such a way that “nobody could ever get to first base.”

“For many people, that undermined the credibility of the government and the credibility of the Tribunal’s process,” said Gillespie. “Every hearing became a rubber stamp process.”

The Ostrander Point Tribunal changed that— perhaps in a profound way.

For what it does is bring the review process out into the open. The developer and its lawyers had argued that it was beyond the Tribunal’s reach to consider the thoroughness or strength of the review conducted inside ministry walls. The Tribunal could conclude only whether the tests of harm had been met.

But Tribunal adjudicators Wright and Gibbs weren’t satisfied with this constriction. Nor were they comfortable that the risks, posed by the project to the Blanding’s turtle, were acceptable or the plan to create replacement habitat would work to protect the endangered species. This was much further than some legal experts believed was contemplated by the GEA.

Faced with the probability that the project was likely to damage the Blanding’s turtle population at Ostrander Point, the Tribunal overruled the provincial government and its ministries.

“Legally, it is significant for its ruling that once ‘serious and irreversible harm’ is found and the Tribunal moves into a consideration of appropriate remedy, the Tribunal will step into the Director’s shoes to fashion an appropriate remedy,” wrote Jack Coop et al in June, in an analysis of the decision for Osler, a law firm.

For the first time, an Environmental Review Tribunal had defined the measures it deems, based on the evidence and expert opinion presented before it, necessary to protect the species at risk. It concluded the only remedy demonstrated to work was to revoke the permit—to prevent the project from being built.

The decision, in some instances, will now enable Tribunals to consider concepts as the precautionary principle— that, based on a balance of probabilities, the risk posed by the proposed project is simply too great.

The Ostrander Point decision has the potential to return relevancy to the Tribunal review process, according to Gillespie.

“If the system was to maintain any credibility in the eyes of many across the province, something had to change,” said Gillespie.

He adds it is critical to this sense of faith people have in their regulatory processes that advances made in Ostrander Point are reflected in future decisions.

“If ultimately, appeals to White Pines and Amherst Island fail then arguably, we are back to where we were three years ago,” predicted Gillespie. “People will conclude that the right to appeal such projects is completely hollow.”

No appeal in Ostrander Point wind farm case

The Prince Edward County Field Naturalists, who brought the appeal against the Gilead Power wind project at Ostrander Point in Prince Edward County, released this information tonight.

Media Release

Prince Edward County Field Naturalists

PECFN breathes out

July 6, 2016 Picton, Ontario — On June 6, 2016 we reported that “The Tribunal in the Ostrander Point ERT hearing has found that the remedies proposed by Ostrander [Gilead] and the Director are not appropriate in the unique circumstances of this case.  The Tribunal finds that the appropriate remedy under s.145.2.1 (4) is to revoke the Director’s decision to issue the REA [Renewable energy Approval]. ”

Following that decision both the Director (Minister of Environment and Climate Change) and Gilead Power had the right to to appeal to the Divisional Court based on legal errors in the decision of the Environmental Review Tribunal. The proponent had thirty days to submit their appeal and today was the deadline.  As of 5 pm today no notice has come of that request to appeal.

In early 2012 Myrna Wood, Pamela Stagg and I started a blog on Countylive to try to let people know how important the habitat at Ostrander Point Crown Land Block was to migrating birds, bats, and butterflies.  We also spent time writing about reptiles and amphibians at risk and the important imperilled alvar habitat.

At the same time Nature Canada, Ontario Nature and PECFN were writing comments to the Environmental Bill of Rights about the proposed project which the government claimed was public input under the Green Energy Act.  All organizations pointed out the importance of this site to migrating birds, bats, monarchs and species at risk such as the Whip-poor-will and the Blanding’s Turtle.  In spite of all this input the Ministry of the Environment approved a project on December 20, 2012 to install 9 turbines and their associated roads and ancillary equipment at Ostrander Point Crown Land Block.  Given 15 days to appeal, PECFN moved forward, solid in the knowledge that Ostrander Point was the wrong place for wind turbines.

This action has been described as a David versus Goliath battle.  PECFN, a rural organization of about 60 members was up against the Ministry of Environment and Climate Change and a large oil company-owned business.  It is particularly wonderful to finally realize that the battle is over and that “David” has prevailed.  Myrna Wood comments “This was a long and hard battle, but totally worth it – important habitat has been conserved and we are very happy.”

Myrna Wood

Cheryl Anderson

For more information go to: www.savethesouthshore.org