Borden Ladner Gervais LLP – Adam Chamberlain
On January 30 and 31, the Ontario Environmental Review Tribunal (Tribunal) heard a series of motions in the appeals of a Renewable Energy Approval (REA) issued to Conestogo Wind LP (Conestogo Wind) for a Class 4 wind facility in Mapletown Township, County of Wellington, Ontario. One motion was to adjourn the proceedings, pending resolution of an application for judicial review brought by one of the Appellants, Preserve Mapleton Incorporated (Preserve Mapleton). Preserve Mapleton argued that if the Ministry of the Environment’s decision to issue the REA were to be reversed by the Court, the appeal to the Tribunal, which addresses whether engaging in the project will cause serious harm to human health or the environment, would become irrelevant. The adjournment was opposed by Conestogo Wind as well as the Ministry of the Environment (MOE), on whose behalf it was argued that an adjournment would be contrary to the legislative intent to have REA appeal decisions reached within six months.
Having heard from all the Parties, the Tribunal announced that it would grant Preserve Mapleton’s motion to adjourn the proceedings while indicating that written reasons for granting the adjournment would follow. The granting of this motion has the potential to significantly delay this REA appeal procedure.
The Tribunal reserved its decision on a jurisdictional issue relating to several motions brought by the Appellant, Haudenosaunee Development Institute (HDI). To consider these motions, which include a motion for a stay, a motion to cross-examine the Director, and certain requests for alternative relief, the Tribunal must first determine if it has jurisdiction to consider the basis for the motions, namely, treaty rights-based claims and the Crown’s fiduciary duty to Aboriginal peoples. The issue of jurisdiction was not determined in light of the adjournment.
Finally, a motion brought by Conestogo Wind to focus evidence was adjourned. This was a motion requesting that the Tribunal exercise control of its process by limiting the number and type of witnesses being called by the Appellant. The motion was made in response to the fact that the Appellant has proposed to call 14 witnesses from the project community to testify about their concerns that the project will impact their health, and 23 witnesses from other communities where wind farms have been built to testify about health problems which they believe have been caused by the wind farms. Both Conestogo Wind and the MOE expressed concern regarding the relevance and helpfulness of these non-expert witnesses in assisting the Tribunal in determining the question of serious harm to human health.
IMPLICATIONS OF THE TRIBUNAL’S DECISION
The implications of the decision of the Tribunal to adjourn the appeal of the REA to allow the Judicial Review to proceed could be significant. Some are of the view that by allowing the adjournment, the Tribunal is simply permitting opponents to wind developments to do so through the back door (the Courts) what the legislation does not allow through the front door (the Tribunal). This is particularly concerning for the government and holders of REAs as the legislative framework around these specialized approvals, has from the outset, attempted to strictly delineate the scope of potential appeals.
If the Court deals quickly with the Application for Judicial Review then perhaps the appeal will resume quickly. However, it is hard to know at this point how likely that is.