Wind turbine appeal Tribunal hears final oral arguments in Pontypool

PONTYPOOL – In the end, it will be temples or turbines, and lawyer Eric Gillespie has never seen a case like it.

Delivering his final oral arguments to the Environmental Review Tribunal hearing the appeal of a controversial wind energy project in Manvers Township,

Mr. Gillespie wondered aloud how a lawyer can win a case that has had “zero response” from the opposite side.

Mr. Gillespie represents the groups appealing the Province’s granting approval to wind energy company wpd Canada for its Sumac Ridge industrial wind turbine project, which would see five industrial turbines built in Manvers Township.

When the approval was granted in December of 2013, several groups, Manvers Wind Concerns, Cransley Home Farm and the Buddhist Cham Shan Temple, appealed the decision to the Environmental Review Tribunal. Much of 2014 was taken up for the hearing, which officially concluded last December.

The Buddhists plan to build four Temples mirroring those in China, and will abandon the $100 million project if the wind turbines are built. One temple has already been built on Ski Hill Road.

The appellants maintain the Province violated its own legislation in allowing two of the turbines to be built on the Oak Ridges Moraine, which is protected by law. They also allege the project will have a significant impact on human health, the environment and quality of life in the area.

Dozens of people appeared for the appellants, while the Province elected to call no witnesses and few appeared for wpd Canada.

Lawyers for the Province, wpd Canada and the appellants submitted their written arguments earlier this month, and the oral arguments were heard on Friday (Jan. 23).

Tribunal co- chair Heather Gibbs said the purpose of Friday’s hearing was to allow people to hear the highlights of the arguments.

Mr. Gillespie focused on several key areas including the natural environment (specifically the moraine), First Nations and the Cham Shan Temple, reiterating the impacts industrial wind turbines would have on each.

But he maintained that because there were so few witnesses from wpd Canada and none from the Province, the Tribunal would face “a very difficult” task. Without witnesses for the Province, Mr. Gillespie said it would be very difficult for them to respond to the appellants’ case.

In all his years of experience, he said, “I’ve never seen a case where there wasn’t a response.”

He told the panel the level of interest from the community, the number of people who followed the hearing and worked on the appeal demonstrates its uniqueness. But, he noted there were many unnecessary delays as the hearing took almost a year to complete.

Mr. Gillespie accused the Province and wpd Canada of failing to properly consult with First Nations (Curve Lake and Hiawatha) band leaders to address their claims wind turbines would interfere with their Treaty 20 lands and harvesting rights. He said the Province should have met with them “government to government” to address the concerns.

He alleged the same relating to the Cham Shan Temple, noting the federal, provincial and City of Kawartha Lakes leaders have welcomed the Buddhists. The temple, he said, will be one of only two in the world and will draw people for its pilgrimages.

He noted a study of the impact of wind turbine noise on meditation can’t be done because there are no meditation centres in which to conduct them. But, the Buddhists who testified at the hearing were qualified as experts in their religious practice and testified about the requirements for meditation.

Mr.  Gillespie challenged scientists who appeared for wpd Canada on species at risk ; saying they had not visited the moraine and were not basing their testimony on relevant studies. And he noted that not seeing a species does not mean they are not in the area.

“That’s the problem, you don’t see them; that is why they are called species at risk,” he said, but added if habitat is destroyed “you can’t get it back.”

Mr. Gillespie also accused wpd Canada of not adhering to tribunal direction; delaying the proceedings to the point where they narrowly avoided a costs order.

“They didn’t keep the parties informed…didn’t follow the tribunal’s direction and came very close to (legally defined) unreasonable conduct...before the hearing even started.”

When he concluded, Mr. Gillespie said, “There are some places in the province where turbines shouldn’t be built” and said the appellants have presented clear evidence to support their case.

He received several minutes’ applause when he was finished, but as the Province began its arguments, catcalls and guffaws erupted when people didn’t like what they heard.

Ms Gibbs put a stop to that, demanding respect from the audience, and also banned cameras and videotapes after she was informed someone was using them. Audio recording was permitted, she said, but only for personal use, not publication.

The Province’s primary counsel, Andrew Weretelnyk, said the appellants have not proved their case because much of it was supported by opinion rather than fact. He said “no adverse influence” should be drawn by the decision not to call witnesses; that decision rests with counsel based on quality of evidence.

He denied the Province kept anything about the project hidden; that Sumac Ridge has always been five turbines. He also challenged some of the appellants’ witnesses, particularly those testifying about species at risk, saying bird expert Geoff Carpentier had no experience with wind turbines and birds.

Mr. Weretelnyk said the onus was on the appellants to show irreparable harm to the environment, and they “haven’t met the tests.”

He also challenged testimony about potential fuel spills from the turbines, saying  keeping them in the base does not make them a storage facility for hazardous materials.

The Province also addressed First Nations concerns, saying Treaty legislation and environmental legislation did not fall within the tribunal’s mandate for the purpose of the hearing. The Province maintained that while First Nations concerns were sincere, there were no tests that supported their claims in law.

When it was wpd Canada’s turn, their lawyer John Richardson asked the tribunal to refer to his written submissions (hard copy of which they had not received on Friday). He summed up most of his rebuttals to Mr. Gillespie by saying the Province’s lawyers had covered most of the same points.

Mr. Richardson’s position was that the appellants’ evidence did not prove there would be harm to human health, water, plant and animal life. He also noted documentation relating to the Sumac Ridge approval has been posted on the company’s website for public review.

A decision in the case is expected sometime in February.