The fight against Shear Wind shows that timelines for Nova Scotia’s Freedom of Information Act impede citizens’ legal appeals.
by Bruce Wark, The Coast (Halifax)
Father Robert McNeil drew chuckles at a Pictou County funeral last week when he recited a Depression-era verse: “Life is mysterious/Don’t take it too serious/You work, you save/You worry so/But you can’t take it with you/When you go, go, go.”
The Roman Catholic priest was speaking during a funeral mass for June MacDonald, 65, a retired teacher who spent the last few years fighting an industrial wind project looming over her family’s farm. MacDonald lost her battle with the wind company before she lost her battle with cancer. She died two days after the first wind turbines started turning. Her husband, Rod—whose family had farmed the fields below Brown’s Mountain since 1792—died the night before her funeral.
Their story is both inspiring and sad. And in the background is news of regulatory changes that should concern all activists who—like June MacDonald—try to challenge big developers.
“The most important thing about June,” neighbour Faye Kinney remembers, “was she absolutely had no fear. It didn’t matter who they were or how important they were, it didn’t matter how important they thought they were, June stood her ground.” Kinney was referring to MacDonald’s work as a member of the Eco Awareness Society, a small citizens’ group that fought unsuccessfully against the installation of industrial-sized wind turbines near their homes. Shear Wind Inc., which is building Nova Scotia’s biggest wind farm, had appointed June MacDonald to its Community Liaison Committee in 2008. But MacDonald peppered Shear Wind officials with so many questions that after a few meetings, the company disbanded the committee and set up a new one without her. “She wanted answers, they didn’t give her answers, and she was like a dog with a bone,” Kinney recalls. “They had to get rid of her.”
Several of MacDonald’s questions were about noise levels, a main concern of EAS members—especially those who live less than two kilometres from the turbines. Shear Wind said it was satisfied noise levels would be at or below minimal acceptable levels, but wouldn’t guarantee it in writing or commit to moving any turbines that generated excessive noise. The company commissioned another noise study—but didn’t make the results public. It did, however, submit its new study to an Antigonish municipal official who issued a development permit last June.
And this is where the story takes a turn that is bound to have negative implications for anyone seeking to challenge government development approvals. The EAS considered appealing the municipal decision to the NS Supreme Court, but before spending up to $2,500 to file its appeal, the group needed to see if the new noise study answered its concerns. Citizens have 25 business days to file such appeals. Public officials, however, have 30 days to respond to requests for information, allowing them to run out the clock. And that’s what happened to the EAS. It received Shear Wind’s new study one day after the 25-day limit expired. Peter McInroy, the EAS’s lawyer, points out that citizens’ groups used to have six months to file appeals, but in 2009 the courts cut the time drastically.
“What they did to the time limit is shocking; I found it incredible what they did,” McInroy says. “I could see them moving it from six months to three, but 25 days is a terribly short time span.”
Meantime, uncertainty over the Supreme Court appeal divided the EAS. In September, June MacDonald, stressed out over her husband’s terminal cancer and worried about launching a court case that could easily cost $25,000, resigned from the EAS board. The group did launch its appeal in mid-September, but an unsympathetic judge ruled last month that the 25-day time limit had expired.
Tired and ill, both June and Rod MacDonald died early this month. As Father McNeil pointed out, June MacDonald won’t be taking her Shear Wind worries with her. But the situation looks grim for living activists seeking to challenge bureaucrats who approve controversial developments.