REA Process Faces Charter Test in Shelburne

Environmental Review Tribunal schedules 19-day hearing in Dufferin

(Core has been granted Party status at this hearing.)

Will the province’s Renewable Energy Approval (REA) process pass a Canadian Charter of Rights and Freedoms litmus test?

Despite objection from the Ministry of the Environment (MOE), Ontario’s Environmental Review Tribunal (ERT) has agreed to hear a constitutional challenge to the REA process in Shelburne next week.

“That’s the big news. They’re willing to sit and listen,” said Dennis Sanford, president of Wind Resistance Melancthon. “Certain rights have been squashed or ignored through the whole (REA) process and we’re trying to call attention to that fact.”

The province recently gave Dufferin Wind Power Inc. the green light to construct a 99 MW wind farm in Melancthon and run a 230 kV transmission line from that site to Amaranth.

Both Sanford and the citizen’s advocacy group, Conserving Our Rural Environment (CORE), promptly appealed that approval to the ERT.

After pre-hearings held earlier this summer, the ERT is willing to hear the argument from Sanford’s lawyer, Eric Gillespie, that the province’s REA process is unconstitutional. The MOE unsuccessfully argued before the ERT to have that constitutional challenge tossed.

“It’s a challenge to the whole REA. It takes it beyond the REA for this Dufferin Wind project,” Sanford said. “It actually applies to the province and all of the wind projects that are going up that fall under the REA.”

MOE officials have declined to speak on the matter, as it is currently before the ERT. “It would be inappropriate to comment at this time,” MOE spokesperson Kate Jordan said in an email.

The ERT has scheduled a 19-day hearing in Shelburne starting on Tuesday (Aug. 20) at Grace Tipling Hall at 10 a.m.

Both Sanford and CORE have been granted “party status” for the hearing.Amaranth Township has been given presenter status, meaning it can only raise concerns that fall under the umbrella of issues raised by those with party status.

“We’re still there,” said Amaranth Mayor Don MacIver. “I’m absolutely shocked the MOE is sitting there supporting Dufferin Wind Power when the transmission line and turbines are going through environmentally sensitive areas.”

The tribunal will surely hear arguments about the potential health effects associated with wind turbines. When it comes to that though, Sanford admitted there is a “very high bar” to eclipse.

“No one has managed to jump over that bar yet,” he said. “But with this constitutional challenge, we stand a fair chance at achieving more than anyone else has achieved.”

Unable to speak to the specifics, Sanford said Gillespie would be arguing that the REA process goes against the Canadian Charter of Rights and Freedoms.

“It’s circumventing certain rights and freedoms that we have guaranteed by the Charter,” Sanford claimed. “(The ERT) are willing to listen, whereas in the past, it’d never been brought up.”

For the time being, the ongoing ERT hearing isn’t slowing Dufferin Wind’s efforts down. The company is requesting the Ontario Energy Board (OEB) expropriate the land it needs from several property owners, including the county, to construct its wind farm and transmission line.

Dufferin Wind could still sign an easement agreement with county council for the use of its rail corridor, which is needed for the transmission line. County officials are keeping mum about the likelihood an agreement could be struck before the expropriation process kicks in.

Dufferin CAO Sonya Pritchard declined to comment after county council discussed the matter in closed session last Thursday. She has been told to continue negotiations with Dufferin Wind but “that’s about all I can say,” Pritchard quipped.

Dufferin Wind did receive some news on Thursday, as county council endorsed a proposed road use agreement with the company. County council has yet to approve a road allowance agreement though.

“This is a long-term agreement,” Pritchard said of the former deal. “This is just to transport things on the road.”

The road use agreement ensures Dufferin Wind give county officials proper notification, follow the permitting process and that a third party engineer can inspect any road work done by Dufferin Wind.

“We can’t stop them from using the road,” said Shelburne Mayor Ed Crewson. “To vote against this would be meaningless, because it’s going to happen anyway.”