Their story needs to be told in the time it takes to tell it.
by Harvey Wrightman
It’s been 10 months since we became involved in the Zephyr Environmental Review Tribunal (ERT) appeal where we attempted to present a case that was built on the soundest evidence of all – the testimony of those people who live in wind projects and suffer the many different and terrible maladies that these projects induce. Obviously such a case has merit. Why else would the wind companies and its shameless Ministry of Environment (MOE) collaborator/facilitators fight tooth and nail to prevent or at least nullify such testimony. They know the power of personal experience. The effect of hearing such testimony would be “cleansing.” Having chosen immersion in the villous fluid of green, they are not ready to be cleansed. The ERT, caught in the middle of this dance, desperately wishes to appear fair to all parties. The process for presenting “lay witness” testimony seems hardly any clearer to me today than it was 10 months ago. More than once I have heard panel members of the ERT allude to the newness/novelty of the Renewable Energy Approvals as a reason to develop the rules “on the go”, yet admonish the parties (mainly appellants) that the process must be streamlined to fit into the 6 month deadline the Green Energy Act provides for an appeal decision.
Oh, really! So how does one fighting an appeal fix on a moving target.
So on Friday, Haldimand Wind Concerns (HWC) lawyer, Eric Gillespie reasonably sought an adjournment of the Samsung Haldimand hearing so that specific issues re: the “lay witness” testimony could be finally settled.
The outstanding issues centre around:
- The MOE and Samsung’s demand for “relevant” (read 10 years worth) medical files for all witnesses.
- Relevancy issues concerning a curious set of 176 “interrogatories” – rather intrusive questions that each lay-witness is to complete and hand in.
- The “interrogatories” raise serious issues of confidentiality; but MOE lawyer, Frederika Rotter, affectionately known as Freddy, dismisses those concerns because she considers anyone so emboldened as to testify before ERT and herself as being an “advocate” and therefore not entitled to any sort of confidentiality privilege.
The ERT encouraged the parties to settle this themselves – not much incentive to do so for either the MOE or Samsung. After all, they merely have to run out the clock. And so it proceeds and recedes. The ERT panel hardly cares – like the others it’s a job, tough at times, but all you have to do is show up for work and “appear” to be fair. That’s all the ethics required in this forum
Now consider this. What would happen if these lawyers for Samsung, those of the face-smirk profile, were to make any of these demands in the real judicial system – Superior Court of Justice?
- When considering requests for “relevant” documents, the Court instructs parties to seek and produce only documents that are pertinent to the issues. There is a “relevancy” test. So, for instance, in this case where the MOE and Samsung are demanding medical documents far beyond what HWC deems as necessary for its case, the Court would say, “Fine, if you think those documents are relevant, you (the MOE and Samsung) pay for the procurement and we will resume proceedings when everything is made available.” – No 6 month deadline to meet. You can see the first ring on that smirky face.
- “Interrogatories” are a possibility, but they would be part of the “discovery” phase. So if the answers to that set of questions were passed on to an outside expert who then produced a written analysis. That report would be given to the other side for review, so that there are no “evidence” surprises introduced at the last minute. The Samsung lawyer, Matthew Milne-Smith let slip that Samsung was going to have the interrogatories reviewed by its experts and use such information in its cross-examinations of the lay-witnesses. As Eric said, “An ambush process !!!…grossly unfair…” Samsung and the MOE lie in wait with the “ammunition” to attack people who are victims of wind projects. They strike again! Where is the guardian? – looking the other way – remember those lay-witnesses are only “advocates.” Second smirk ring
- You can now see that “confidentiality” will be a very contentious issue. Indeed, both Samsung and the MOE have indicated they will contest any request for confidentiality. Third smirk ring.Into this vacuum, Eric sensibly brought in an expert for victim witnesses, Dr. Prendergast, a well-known clinical psychologist, with over 30 years experience in the area of victim medical/legal testimony for clients including the Toronto Police Services Board. Dr. Prendergast advised not to administer the “interrogatories” as presented for several reasons:
a) Some of the questions were clearly irrelevant in any context which can cause stress in a victim-witness affecting the quality of the information the person can provide. In the same way that medical records must be vetted by an expert for relevancy, so too must the interrogatories especially since the ERT itself said the questions could be part of the solution to providing relevant medical records. The list was composed by Ms. Rotter – not someone I would want asking nosy, insensitive questions.
b) The answers to the questions are meaningless without expert analysis and interpretation. They should not become the basis for a cross-examination, “fishing expedition’ with the result of intimidating a witness, purposely or not.
c) Re: “confidentiality”, Dr. Prendergast explained that he was not looking at it though a “legal lens”, but as how psychologist would see it affecting testimony.
You can see how ludicrous the whole thing has become. With the 6 month limit ticking it has literally become a “gong show” that both the wind companies and the MOE seek to exploit. The more the ERT ignores basic tenets of jurisprudence and access to justice, the more it licenses the MOE and wind companies to abuse the system and citizens who rightfully expect “fair play.”
The hearings have become a breeding ground for sarcasm and arrogance. Once again Samsung lawyer, Milne-Smith, provides the words, suggesting that if “you don’t like it, make a Charter challenge.” Well, thanks a lot – for nothing.
The ERT needs only to follow well-established principles used in Court to restore some order to this process. “Making it up on the go” produces failure. Rural residents rightly question the value of participating – the relevancy of the ERT itself is now in question – That’s what Mr. Milne-Smith seemed to be suggesting too.
Traditional Onkwehonwe, Lester Green, without any sarcasm, and in very clear language provided the sanest comments of the day (I paraphrase here) – That we are always here; it is our home. It doesn’t matter how long it takes for the witnesses to explain the things that have happened to them since the wind turbines went up. Their story needs to be told in the time it takes to tell it.
I couldn’t agree more.