Might v. right

It’s an obscenely unfair fight. I expect most people would intervene if they happened upon such a lopsided clash on the street. Or call the police. They would do something. It runs directly against our core sense of fair play. Of justice.

Consider the spectacle on display in a Toronto court room next week. On one side will be a handful of folks more knowledgeable about the nesting patterns of the whippoorwill than the finer points of administrative law in this province.

On the other side of the aisle will be the Province of Ontario, through its Ministry of Environment (MOE), the developer, Gilead Power Corporation, along with the entire Canadian wind energy industry through Can- WEA.

There are billions of dollars at stake in this hearing for one side. On the other, it is the sanctity of the natural habitat of a unique bit of Ontario.

For the developer, this is likely its last shot at salvaging a positive return from this project. This fight has already cost it millions of dollars. Every day Gilead executives linger in a courtroom, a hearing room or its lawyer’s office and not bulldozing roads into Ostrander Point, costs it many thousands of dollars more. This courtroom is likely the end of the road for this project.

Gilead Power is represented by McCarthy Tetrault, led by Doug Hamilton—a partner in the national firm that boasts more than 600 lawyers. Hamilton will be flanked on one side by Christopher Wayland, another partner at McCarthy’s. Wayland’s expertise is appellate litigation, that is, arguing appeals before this very court. On Hamilton’s other side will be associate lawyer Sam Rogers.

A phalanx of other legal resources will surely be just a Blackberry message away.

CanWEA, representing the industrial wind energy sector in Canada, has asked for and received the opportunity to intervene in this appeal. There is much on the line for these developers, financiers and operators next week in Toronto.

For decades, despite lavish subsidies raining upon the fledgling industry, corporate investment largely stayed away from the wind energy business. It was only when the Green Energy Act was passed, lowering, and in some cases eliminating, environmental protections and regulatory safeguards, did investors see a clear pathway to profit.

The game was rigged in their favour. All developers had to do was step up, get in line, do some paper work and then wait for the money to roll in. It was sweet arrangement. They surely knew the gravy train couldn’t last.

Still few expected the Environmental Review Tribunal to go so far off script in Prince Edward County. The decision by the provincially appointed Tribunal to revoke Gilead’s Renewable Energy Approval (REA) sent shock waves through the entire wind industry.

Until then a Tribunal had never done such a thing. Deemed a largely pro forma exercise, some developers had simply proceeded to build their industrial wind turbine projects, even as Tribunal hearings were ongoing. In fact, when the Tribunal released its decision in an appeal of the Kent Breeze project, near Chatham, in the summer of 2011, the turbines were already spinning over the heads of the objecting neighbours.

That a Tribunal would stand on its own two feet and pose serious questions about the impact of industrializing Ontario’s countryside and natural habitats is one thing. That it would actually revoke an approval already granted is a threat to every wind developer holding an REA in this country.

The wind industry has billions of reasons why it should want to overturn the Tribunal’s decision. A trickle of independent thinking could lead to a flood of folks asking serious questions about the cost to the natural world and human health of industrial wind turbine development. The pathway to profits could snap shut just as quickly as it was opened.

Surely the most puzzling lout with their knuckles aimed at PECFN and APPEC next week is the Ministry of Environment. Not just for the obvious reasons that it’s the MOE’s mandate to protect endangered species, rather than hold the door and provide direction markers for profit seekers to flatten them in the name of renewable energy.

No, the most puzzling bit is that the MOE could have peeled off from this melee at any time. The Environmental Review Tribunal is its mechanism. It is the MOE’s safeguard, created to prevent rash, ill considered decisions or unintended consequences. It ought not to have been in the fight at all.

And when this independent panel made its decision, the MOE ought to have boasted that the process worked. That it had provided the protectionthat Ontario residents expect of its agencies. It might have held the Tribunal’s decision up as proof that it wasn’t interested in wind energy at all costs. That there were some things, some lives worth protecting.

Instead, the MOE has lined up with the developer, its corporate lawyers, and the industrial wind energy lobby in its preservation of profits. And against a handful of field naturalists struggling to do all they can to prevent the extinction of the Blanding’s turtle and other endangered species at Ostrander Point.

How is it that elected governments and its institutions can stray so far, so that they become instruments of corporate profiteers.