Send us to the ERT? Better to send us straight to the gallows.

Copy of goderich2by Harvey Wrightman
I was at the Goderich Court on Friday to hear more legal arguments about a wind project. Shawn and Trish Drennan are opposing the “K-2” wind project, a massive 142 turbine project which will cover most of Ashfield/Colborne/Wawanosh Township. At the noon recess Shawn asked me, “How does this court hearing compare to an ERT hearing?”. Well, let’s see – the motion to strike the Drennan family’s application for an injunction on the construction of the Pattern/Samsung K-2 wind project – that sentence alone illustrates how convoluted this whole wind business has become, so horribly twisted that the Drennan’s have sought to cut through it all  with a plea for relief to the Court.

The Crown and K-2 insist that there is an overall “public interest/benefit” in constructing wind energy projects. Mr. Bredt, lawyer for K-2 also submitted that “…one wouldn’t consult with the public if one wasn’t concerned about the impacts…,” he said it with the same leery smirk that I had so often seen on the  $500/hour lawyers engaged by companies for the ERT appeals.  Remarkable! This wonderful Renewable Energy Application (REA) process was so lovingly crafted to care for and protect the “receptors” (persons).  So exceptionally nurturing is this process and so intent is the government on rigorously assessing the quality of service, that we now have the attention of 2 sets (both federal and provincial) of academic/engineering/medical professionals who will “study” subsets of the subject “receptor populations” to better define the impacts on “receptors” – on a gross, averaged level, not individual specific. In the court room I’m sitting beside a person/receptor forced to move from a house surrounded by turbines, who has heard this BS far too many times.  I’m always amazed at the ability of people affected to not give in, but to continue to resist in the way they are capable of. Rural citizens are in a battle with an administrative structure gone hay-wire.

No surprise then that there was much argument and dance about the “onus to prove harm” –  the amount and the actual type of harm – which brings us back to the point of differentiation between Court and the ERT:  the ERT appeals have a fairly narrow focus and a very high standard of proof required.  The appellant must prove serious and irreversible harm will occur to human health or to the physical environment. What is the definition for “serious harm to human health”? There isn’t one. It’s a loosey-goosey term. Further, at the ERT the proof must be absolute – almost to the point that one must designate which “receptors” will be harmed with 100% certainty.

There was an attempt by Mr. Bredt, lawyer for K-2 to transport this absolute reverse onus standard that the ERT requires into Civil Court.  Justice Duncan caught that one and asked Mr. Bredt whether “serious” need be added to the statement of claim. This is an important point and one worth protecting. In civil proceedings proof of harm need not be absolute, only that on the balance of probabilities harm may occur.  Wind companies and other industries would love to tighten the definition so as to make the victim pay more. Trying to soften the company image, Mr. Bredt referred to K-2 as a “person.” Not exactly buying this, Justice Grace looked up and said, “K-2 is a company not a person.”  Mr. Bredt smiled and said, “…a corporate person.”  Justice Grace, who taught corporate law at UWO, raised his eyebrows and let Mr. Bredt finish.

The arguments turned to the adequacy of the “administrative remedies” that the REA provides. To Mr. Falconer and the Drennan’s, a  REA certificate  is viewed with apprehension, not equanimity – Mr. Falconer pointing out that of all the wind REA’s issued only 3 single turbine projects (small installations) have been rejected. Bigger is definitely better.  The “other side” tried to insist that the “conditions” that are attached to the recent ERT decisions in Haldimand equated to a fair, responsive process. Mr. Falconer noted that in no ERT appeal had the setback distances been changed. The conditions were merely “cosmetic.”

The legal term, “Quia timet – because he fears”, came up. The government and company lawyers soothingly saying that it was “premature” to launch such a motion to prevent construction, that many things could happen to change or even cancel the project.  K-2’s Mr. Bredt went so far as to suggest that the Drennan’s would need to experience actual harm first (so, there will be harm?).   That position simply bolsters Mr. Falconer’s assertion that residents correctly see the REA certificate as the trigger point.

Arguments then went into the appropriateness of charter rights infringement – harm to life, liberty, security of person; and, from there both health effects and “nuisance” issues were raised. This was pertinent as the ERT is limited to “serious harm to human health or the environment.” Nuisance claims were deliberately excluded in the writing of the GEA – such clever authors!  Regardless, the government and K-2 went on to proclaim that the administrative tribunal was the proper forum, saying that the ERT could decide even matters about charter claims.  That struck me as odd, as the ERT in the Haldimand hearings adamantly refused to consider the treaty claims of traditional Onkwehonwe, Bill Montour – and they didn’t suggest to him to bring a Charter challenge.

Justice Duncan, while recognizing the need for the administrative tribunals to more efficiently handle the  day-to-day problems that arise in citizens dealings with government, also made note of the how the “process” might become perverted,  and interfere with the right to justice.  This is a never-ending problem:  the good-intentioned efforts to “streamline” the process can be manipulated into an “on-ramp”, as Mr. Falconer put it. Perhaps here is where we start to see the differences between the “pseudo-court” ERT and the Justice system.

First, one must ask:  What’s the difference between the appointment of a Court Justice and a panel member of a tribunal.  Both are political appointments of sorts; but the Court Justice is appointed for life by the federal Minister of Justice, and so (in theory) becomes freed of political influence. A member of the tribunal panel is appointed through the provincial “Public Services Appointments,” a section of the Attorney-General’s Office. Only a few of the appointments are full-time; so the rest of the appointments are a form of musical chairs – not quite so independent. It would be relatively easy to influence the direction and objectives of the panels. Adding to the “group-think” is that the appointees are all are “environmental law” graduates. Looking at the CV’s of the panel members, past or present association with “green” organizations who are pro-wind is common. It’s no small wonder that no big wind project has ever been refused. That the ERT and all the lawyers are based in urban areas (Toronto in particular), only adds a little more gravel to the salve for rural citizens/receptors. As if this bias wasn’t enough, consider that the ERT isn’t too sure how to run its hearings. In December of 2011 at the Zephyr appeal, the ERT panel chair in answer to counsel’s frustration with the  lack of direction for the REA appeals, stated that because the REA appeals were new, the process needed to be somewhat flexible; and it would become “clearer and better defined” as more appeals were heard, decisions made, and precedents set. No point in applying the principles that are used in Court – make up your own, on the go as you need them.

And so, we have the explanation for the “on-ramp” speedway that is the REA appeals – the rigidity of the 6-months deadline, the totally unreasonable demands for (now) 15 years of medical records, the threats of “cost awards” even though  NO compensation for damage to citizens can be made, as Mr. Falconer pointed out. The administrative system has extended and evolved to the point where it reviews and enforces its own set of rules; and is NOT following basic principles that apply in Court. Welcome to our “new, streamlined” pseudo-justice system.

Send us to the ERT? Better to send us straight to the gallows.

It’s ironic to note that a similar motion was heard at the same time in Barrie for the Stayner WPD project where a different set of landowners is fighting the project on the basis of nuisance and the resultant loss of property value. Much the same argument about the timing of seeking relief came up there too. The substance of this case is somewhat different as expert testimony was presented to the Court; but, the nuisance issue was similar.

Taking a broader view, the administrative system has extended and evolved to the point where it reviews and enforces its own set of rules – no oversight save the voters.  As Mr. Falconer put it, declaring that the substitution of “green” energy for fossil fuels is now a matter of public benefit, leads directly to the state we have – i.e. that large, intrusive, wind energy projects can impose themselves upon neighbours. The wind companies are not held responsible to any local authority and basically not be subject to challenge. In essence this amounts to expropriation without compensation. The administrative process and its attached tribunals ensure that everything is covered. This represents the making of a new “family compact” – 200 years after the old one. Once again we have a ruling class who imagine they know what’s best – for us. There are signs, faint as they are, that the judiciary at least recognizes the lack of due process in the ERT.  There is a very good case to be made that we’ve played by the rules. If we can’t get fair hearing in court, then there is no justice for rural citizens in Ontario.

Friday was 5 hours of tiring arguments where the competing lawyers – “friends” all – spoke about previous decisions by courts and the opinions of learned peers.  I thought of what Oscar Wilde said about the distinction between words and actions: “Lots of people act well, but few people talk well, which shows that talking is much the more difficult thing of the two, and much the finer thing also.”

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Posted on March 11, 2013, in Environmental Review Tribunal, Ethics, Government, Take it to court. Bookmark the permalink. Leave a comment.

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