Environmental Review Tribunal
Tribunal de l’environnement
ISSUE DATE: July 3, 2015
CASE NO.: 15-037
PROCEEDING COMMENCED UNDER section 142.1(2) of the Environmental Protection Act, R.S.O. 1990, c.E.19, as amended
Appellant: SLWP Opposition Corp.
Approval Holder: Settlers Landing Nominee Ltd.
Respondent: Director, Ministry of the Environment and Climate Change
Subject of appeal: Renewable Energy Approval for Settlers Landing Wind Park
Reference No.: 8992-9TVSKD
Property Address/Description: 510 Telecom Road Part of Lots 7-9, Concession 3
Municipality: City of Kawartha Lakes
ERT Case No.: 15-037
ERT Case Name: SLWP Opposition Corp. v. Ontario (Environment and Climate Change)
Heard: June 22, 2015 in Lindsay, Ontario
APPEARANCES:
Parties
Counsel/Representative^+^
SLWP Opposition Corp.
Graham Andrews
Director, Ministry of the Environment and Climate Change
Nadine Harris and Katie Clements
Settlers Landing Nominee Ltd.
Grant Worden
Participants
City of Kawartha Lakes
Robyn Carlson
Save the Oak Ridges Moraine Coalition
Cindy Sutch^+^
Presenters
Jane Zednik
Self-represented
Monica McCarthy
Self-represented
ORDER DELIVERED BY JUSTIN DUNCAN AND MARCIA VALIANTE
REASONS
Background
1On May 7, 2015, Mohsen Keyvani, Director, Ministry of the Environment and Climate Change (“MOECC”) issued Renewable Energy Approval No. 8992-9TVSKD (the “REA”) to Settlers Landing Nominee Ltd. (the “Approval Holder”), granting approval for the construction, installation, operation, use and retiring of a Class 4 wind facility with a total name plate capacity of 10 megawatts (the “Project”). The Project is to be located at 510 Telecom Road in the City of Kawartha Lakes, Ontario (the “Site”). The Site is on the Oak Ridges Moraine (“ORM”), within the “Countryside Area” designation.
2On May 22, 2015, SLWP Opposition Corp. appealed the REA to the Environmental Review Tribunal (the “Tribunal”) on the grounds that the Project will cause serious harm to human health and serious and irreversible harm to plant life, animal life and the natural environment.
3The Tribunal held the preliminary hearing in Lindsay, Ontario on June 22, 2015. At that time, the Tribunal granted participant and presenter status to several persons and confirmed procedural directions regarding the scheduling of the hearing. This Order provides the reasons for those decisions.
Relevant Rules
4Rules of Practice of the Environmental Review Tribunal
Naming of a Participant
- The Tribunal may name persons to be Participants in all or part of a proceeding on such conditions as the Tribunal considers appropriate. A Participant to a proceeding is not a Party to the proceeding. In deciding whether to name a person as a Participant, the Tribunal may consider whether the person’s connection to the subject matter of the proceeding or issues in dispute is more remote than a party’s would be. A person who may otherwise qualify as a Party may request Participant status.
Role of a Participant
- A Participant in a Hearing may:
(a) be a witness at the Hearing;
(b) be questioned by the Parties;
(c) make oral and written submissions to the Tribunal at the commencement and at the end of the Hearing;
(d) upon request, receive a copy of documents exchanged by the Parties that are relevant to the Participant’s interests; and
(e) attend site visits.
- A Participant in a Hearing may not:
(a) raise issues that have not already been raised by a Party;
(b) call witnesses;
(c) cross-examine witnesses;
(d) bring motions;
(e) participate in a mediation, unless permitted to do so by the Tribunal; and
(f) claim costs or be liable for costs.
Naming of a Presenter
- The Tribunal may name persons to be Presenters in all or part of a proceeding on such conditions as the Tribunal considers appropriate. A Presenter to a proceeding is not a party to the proceeding. In deciding whether to name a person as a Presenter, the Tribunal may consider whether the person’s connection to the subject matter of the proceeding or issues in dispute is more remote than a Party’s or Participant’s would be. A person who may otherwise qualify as a Party or Participant may request Presenter status.
Role of a Presenter
- A Presenter in a Hearing may:
(a) be a witness and present his or her relevant evidence at a pre-arranged time, either during a Hearing’s regular day-time session or at a special evening session;
(b) be questioned by the Parties;
(c) provide the Tribunal with a written statement as a supplement to oral testimony; and
(d) upon request, receive a copy of documents exchanged by the Parties that are relevant to the Presenter’s interests.
- A Presenter in a Hearing may not:
(a) raise issues that have not already been raised by a Party;
(b) call witnesses;
(c) cross-examine witnesses;
(d) bring motions;
(e) make oral and written submissions to the Tribunal at the commencement and at the end of the Hearing;
(f) participate in a mediation, unless permitted to do so by the Tribunal;
(g) attend site visits unless permitted to do so by the Tribunal; and
(h) claim costs or be liable for costs.
Issues
5The issues are:
Whether to grant participant and presenter status in the proceeding.
Procedural directions related to the scheduling of the hearing.
Issue 1: Whether to grant participant and presenter status in the proceeding
6The Tribunal received two requests for participant status and two requests for presenter status. The Approval Holder requested that all grants of status be made subject to several general conditions; specifically, that those granted status:
a. keep their presentations within the scope of the Tribunal’s jurisdiction as defined by the Environmental Protection Act and as set out in the notice of appeal;
b. comply with the Tribunal’s directions regarding the date for filing their written presentations;
c. if expert qualification is sought, that they file with the presentation a detailed resume, a signed Form 5 Acknowledgement of Expert’s Duty and a statement of the qualification sought; and
d. limit their oral presentations at the hearing to 30 minutes.
7The Tribunal agrees that these general conditions are appropriate and consistent with its practice in other renewable energy approval appeals.
City of Kawartha Lakes
8The City of Kawartha Lakes (the “City”) sought participant status. The City is the host municipality for the Project and opposes any renewable energy project located on the ORM. The City submitted that it has a public, legislated mandate relevant to the subject matter of the proceeding. It stated that it has concerns about the Project and the conditions in the REA related to areas within its jurisdiction, including road access, storm water management, emergency management, development charges, and construction and decommissioning. The City stated that it intends to request that the Tribunal amend the conditions in the REA to impose a requirement that the Approval Holder enter into a development agreement with the City. Counsel for the City noted that, because of the timing of the appeal, she had not yet been able to confirm her instructions from City Council regarding the status request or the issues to be presented, but would be able to do so following a City Council meeting to be held on June 23, 2015.
9The Approval Holder and the Director acknowledged that the City has an interest in the proceeding but opposed the grant of participant status on the ground that the City would not make a relevant contribution to the proceeding. Both argued that it appears from the status request that the City seeks to make submissions on matters that fall outside the jurisdiction of the Tribunal. The Director stated that the remedy the City seeks, an amendment to the conditions in the REA, is one that the Tribunal cannot order unless it first finds that the Project will cause serious harm to human health or serious and irreversible harm to plant life, animal life or the natural environment. As it does not appear that the City intends to present evidence on either of these matters, the Director argued, the request for participant status should be denied. The Approval Holder added that the issues of concern to the City are not within the scope of the notice of appeal and, as a result, are beyond the jurisdiction of the Tribunal.
10The Tribunal granted participant status to the City. The Tribunal finds that the City has an interest in the subject matter of the proceeding as its property and its residents will be affected by the Project. At this stage of the proceeding, the Tribunal is uncertain that it would have the authority to grant the remedy outlined in the City’s status request, but this particular issue can await final submissions where, if the appeal is allowed, submissions can be made regarding proper remedy. Without yet having the benefit of all of the evidence it appears that, in addition to having a clear interest in the subject matter of the proceeding, the City would make a relevant contribution to the Tribunal’s understanding of the issues. Participant status is granted subject to the general conditions set out in para. 6 above.
Save the Oak Ridges Moraine Coalition (“STORM”)
11STORM is an incorporated coalition and submits that it has a long track record of responsible involvement in the protection of the ORM. It has participated in all of the appeals to the Tribunal for renewable energy projects located on the ORM. In this proceeding, STORM seeks to provide evidence regarding the impacts of the Project on wetlands, significant woodlands and amphibian breeding habitat. None of the parties objected to the grant of participant status to STORM.
12The Tribunal granted participant status to STORM. The Tribunal finds that STORM has a genuine public interest in the subject matter of the proceeding and it is likely to make a relevant contribution to the Tribunal’s understanding of the issues. Participant status is granted subject to the general conditions set out in para. 6.
Jane Zednik
13Jane Zednik sought presenter status in the hearing. She is concerned about the impacts of the Project on plant life, animal life and the natural environment and stated that she would provide evidence regarding a significant woodland that will be cleared to accommodate components of the Project. None of the parties objected to the grant of presenter status to Ms. Zednik.
14The Tribunal granted presenter status to Ms. Zednik. The Tribunal finds that she has a genuine public interest in the subject matter of the proceeding and she is likely to make a relevant contribution to its understanding of the issues. Presenter status is granted subject to the general conditions set out in para. 6.
Monica McCarthy
15Monica McCarthy sought presenter status in the hearing. She resides in the vicinity of the Site and is concerned about the impacts of the Project on the health of her family and her community. She wants to provide evidence with respect to these concerns. None of the parties objected to the grant of presenter status to Ms. McCarthy.
16The Tribunal granted presenter status to Ms. McCarthy. The Tribunal finds that she has a genuine interest, both private and public, in the subject matter of the proceeding and that she is likely to make a relevant contribution to its understanding of the issues. Presenter status is granted subject to the general conditions set out in para. 6.
Issue 2: Procedural directions related to the scheduling of the hearing
17The parties presented a proposed schedule for the hearing and for the steps leading up to the hearing. The Tribunal confirmed the schedule, as set out below. The parties agreed to advise the Tribunal as soon as possible on outstanding matters, including a final schedule of witnesses, whether a stay would be sought, and the scheduling of closing oral submissions. Further, the Tribunal directed that any party intending to request a site visit provide a detailed request by August 19, 2015 so that it can be spoken to on August 21, 2015, prior to the hearing commencing.
ORDER
18The Tribunal grants participant status to the City of Kawartha Lakes and STORM.
19The Tribunal grants presenter status to Ms. Zednik and Ms. McCarthy.
20The Tribunal orders that all those granted status:
a. keep their presentations within the scope of the Tribunal’s jurisdiction as defined by the Environmental Protection Act and the notice of appeal;
b. comply with the Tribunal’s directions regarding the date for filing their presentations, the time limit for their oral presentations and coordination with those raising similar interests; and
c. if expert qualification is sought, that they file with the presentation a detailed resume, a signed Form 5 Acknowledgement of Expert’s Duty and a statement of the qualification sought.
21The Tribunal confirms the following schedule:
July 24, 2015
Appellant’s witness statements to be filed with the Tribunal and served on the other parties
Participants’ and presenters’ witness statements to be filed with the Tribunal and served on the other parties
August 17
Motion records for any motions to be filed with the Tribunal and served on the other parties (if applicable)
August 19
Responding motion records to be filed with the Tribunal and served on the other parties (if applicable)
Parties to provide to the Tribunal an itinerary and schedule for a site visit
August 20
Reply motion records to be filed with the Tribunal and served on the other parties (if applicable)
August 21
Hearing of motions (if applicable) or a status telephone conference call
August 26
Respondents’ witness statements to be filed with the Tribunal and served on the other parties
September 2
Appellant’s reply witness statements to be filed with the Tribunal and served on the other parties
September 9-11
Hearing of the appeal at the Pontypool Community Centre, Pontypool
September 25
Appellant’s and participants’ written closing submissions to be filed with the Tribunal and served on the other parties
October 9
Respondents’ written closing submissions to be filed with the Tribunal and served on the other parties
October 16
Appellants’ written reply submissions to be filed with the Tribunal and served on the other parties
October 26 or 27
Oral final submissions.
Participant and Presenter Status Granted
Hearing Dates Scheduled
Procedural Directions Ordered
“Justin Duncan”
JUSTIN DUNCAN
MEMBER
“Marcia Valiante”
MARCIA VALIANTE
MEMBER
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Environmental Review Tribunal
A constituent tribunal of Environment and Land Tribunals Ontario
Website: www.elto.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248