Environmental Review Tribunal

Tribunal de l’environnement

ISSUE DATE: September 30, 2015 CASE NO.: 15-071

PROCEEDING COMMENCED UNDER section 139(1)(c) of the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended

Appellant: wpd White Pines Wind Incorporated Respondent: Director, Ministry of the Environment and Climate Change Subject of appeal: Refusal of a Renewable Energy Approval for two turbines for White Pines Wind Project Reference No.: 2344-9R6RWR Municipality: Prince Edward County ERT Case No.: 15-071 ERT Case Name: wpd White Pines Wind Incorporated v. Ontario (Environment and Climate Change)

Heard: September 9, 2015 in Wellington, Ontario and on September 18, 2015, by telephone conference call

APPEARANCES:

Parties wpd White Pines Wind Incorporated Counsel/Representative Patrick Duffy

Parties Director, Ministry of the Environment and Climate Change Counsel/Representative Rebecca Crangle

Parties Municipality of Prince Edward County, Elizabeth Driver, and Edwin Rowse Counsel/Representative Wayne Fairbrother and Samantha Foster

Presenter Architectural Conservancy Ontario Counsel/Representative Stanley Jones

ORDER DELIVERED BY MARCIA VALIANTE AND HUGH S. WILKINS

REASONS

Background

1On July 16, 2015, Mohsen Keyvani, Director, Ministry of the Environment and Climate Change (“MOECC”), issued Renewable Energy Approval No. 2344-9R6RWR (the “REA”) to wpd White Pines Wind Incorporated (the “Appellant”) authorizing the construction, installation, operation, use and retiring of a Class 4 wind facility consisting of 27 wind turbines, two transformer stations, underground electrical cabling, distribution lines and associated infrastructure, to be located in Prince Edward County, Ontario (the “Project”).

2On July 31, 2015, the Appellant filed a notice of appeal with the Environmental Review Tribunal (the “Tribunal”) pursuant to s. 139 of the Environmental Protection Act (“EPA”) seeking an amendment to the REA to increase the total number of wind turbines in the Project to 29. The issues in the appeal relate to the protection of cultural resources and heritage properties.

3Two days prior to the Appellant’s filing of its appeal, on July 29, 2015, John Hirsch filed a notice of appeal of the REA with the Tribunal, pursuant to s. 142.1 of the EPA seeking revocation of the REA on the grounds that the Project will cause serious and irreversible harm to plant life, animal life and the natural environment. On July 31, 2015, the Alliance to Protect Prince Edward County (“APPEC”) filed a notice of appeal with the Tribunal seeking revocation of the REA on the grounds that the Project will cause serious and irreversible harm to plant life, animal life and the natural environment and will cause serious harm to human health. The Tribunal has assigned those appeals Case Nos. 15-068 and 15-069 and will treat them as one proceeding. Also on July 31, 2015, the Prince Edward County South Shore Conservancy (“PECSSC”) filed a notice of appeal with the Tribunal seeking revocation of the REA on the ground that the Project will cause serious and irreversible harm to animal life. Subsequently, on August 11, 2015, PECSSC informed the Tribunal that it wished to withdraw its appeal and on September 30, 2015 the Tribunal issued an Order dismissing it (Tribunal Case No. 15-070).

4The Tribunal held telephone conference calls (“TCC”) on August 18 and September 1, 2015 to discuss procedural matters affecting the two proceedings.

5On September 9, 2015, the Tribunal held preliminary hearings in the appeal brought by the Appellant and in the appeals brought by Mr. Hirsch, APPEC and PECSSC in Wellington, Ontario. The preliminary hearings were continued by TCC on September 18, 2015. This Order addresses the issues raised at the preliminary hearing in the appeal brought by the Appellant. As noted above, the Tribunal has issued a separate Order addressing the issues raised at the preliminary hearing in Case Nos. 15-068, 15-069 and 15-070, dated September 30, 2015.

Relevant Rules

6Rules of Practice of the Environmental Review Tribunal

Naming of a Party

62. The following persons are Parties for the purpose of the Rules:

(a) persons specified as Parties by or under the statute under which the proceeding arises;

(b) persons otherwise entitled by law to be Parties to the proceeding; and

(c) persons who request party status and are so specified by the Tribunal as parties for all or part of the proceeding, and on such conditions as the Tribunal considers appropriate.

63. In deciding whether to name a person as a party to the proceeding, the Tribunal may consider relevant matters including whether:

(a) a person’s interests may be directly and substantially affected by the Hearing or its result;

(b) a person has a genuine interest, whether public or private, in the subject matter of the proceeding; and

(c) a person is likely to make a relevant contribution to the Tribunal’s understanding of the issues in the proceeding.

Role of a Party

64. A Party to the proceeding before the Tribunal may:

(a) bring motions;

(b) be a witness at the Hearing;

(c) be questioned by the Parties;

(d) call witnesses at the Hearing;

(e) cross-examine witnesses;

(f) make submissions to the Tribunal, including final argument;

(g) receive copies of all documents exchanged or filed by the Parties;

(h) participate in a mediation;

(i) attend site visits; and

(j) claim costs or be liable to pay costs where permitted by law.

In proceedings other than those under section 142.1 of the Environmental Protection Act, a person granted Party status under Rule 62(c) may raise an issue that has not already been raised by persons referred to in Rule 62(a) and (b) with the permission of the Tribunal.

Naming of a Presenter

69. 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

70. 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.

71. 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.

Issue

7The issue is whether to grant party and presenter status to persons in the proceeding.

Analysis and Findings

Whether to grant party and presenter status to persons in the proceeding

Requests for party status

8The Municipality of Prince Edward County (the “County”) requested party status. The County was represented by Wayne Fairbrother. He stated that the County was involved in the process leading up to the REA’s issuance and made submissions in that process to the Director on heritage impacts. He noted that since 1984, the County has passed several by-laws seeking to protect heritage attributes of the area in the vicinity of the proposed wind turbines. None of the parties objected to the granting of party status to the County and the Tribunal granted party status to it. The Tribunal is satisfied that the County has a genuine interest in the subject matter of the appeal and will make a relevant contribution to the Tribunal’s understanding of the issues.

9Elizabeth Driver and Edwin Rowse requested party status. They are represented by counsel, who was unable to attend at the preliminary hearings but authorized Mr. Fairbrother to speak on their behalf. Mr. Fairbrother stated that Ms. Driver and Mr. Rowse own a designated heritage property in the area near the Project location and, like the County, they were involved in the process leading up to the REA’s issuance. Both have expertise in cultural heritage matters. On August 26, 2015, Ms. Driver and Mr. Rowse filed an Application for Judicial Review seeking an order setting aside the Director’s decision to issue the REA.

10None of the parties objected to the granting of party status to Ms. Driver and Mr. Rowse and the Tribunal granted party status to each of them. The Tribunal is satisfied that Ms. Driver and Mr. Rowse each has a genuine interest in the subject matter of the appeal and will make relevant contributions to the Tribunal’s understanding of the issues.

11APPEC also requested party status in this proceeding. It was represented by counsel, Eric Gillespie. Mr. Gillespie advised the Tribunal that APPEC was requesting party status to enable it to address procedural matters that may arise but it did not intend to lead evidence on the merits of the appeal or otherwise participate in relation to any substantive aspect of the hearing. This is similar to the request for party status made by the County, Ms. Driver and Mr. Rowse in Case Nos. 15-068 and 15-069. Mr. Gillespie argued that APPEC’s interests will be directly affected because there may be overlap between the hearing in this proceeding and the hearing in Case Nos. 15-068 and 15-069 and procedural decisions in this proceeding may substantially and directly affect APPEC’s interests in the other proceeding. He submitted that as an appellant in the other proceeding, APPEC has a genuine interest in the subject matter of this appeal and is not an “interloper” or “busybody”. None of the parties objected to APPEC’s request for party status.

12At the preliminary hearing, the Tribunal reserved its decision on whether to grant party status to APPEC.

13The Tribunal finds that granting party status to APPEC for procedural purposes is not necessary at this time. To date, the Tribunal has facilitated the involvement of all interested persons in procedural decision-making in both proceedings. It has held TCCs involving all parties and interested persons to address these issues and will continue to do so, as needed. At the request of the parties in both proceedings, the Tribunal has agreed to hear the two proceedings one immediately after the other. The same panel of members will conduct both hearings. To date, the parties have cooperated by coordinating scheduling and other procedural matters to ensure that these two proceedings move forward in an efficient manner. For this reason, the Tribunal considers that the need for APPEC to have party status has not been demonstrated at this time. There is no imminent problem or issue identified by anyone that would necessitate that parties in one proceeding be given status in the other in order to protect their interests or to contribute to the Tribunal’s understanding of the issues. Even if a problem or issue were to arise, it is not self-evident that the Tribunal would be unable to resolve it in a fair manner without APPEC participating as an added party. However, the Tribunal confirms that APPEC may renew its request for party status if circumstances change in the future. The Tribunal will continue to facilitate inclusive procedural discussions with the parties to both proceedings as necessary to ensure that procedural issues are dealt with fairly.

Request for presenter status

14The Architectural Conservancy of Ontario (the “ACO”) requested presenter status. It was represented by Stanley Jones, co-chair of the Quinte Region of the ACO. Mr. Jones explained that the ACO is a non-profit corporation that seeks to preserve Ontario's architectural and environmental heritage and that it has concerns regarding the impacts of the Project on the cultural and landscape heritage of the area. None of the parties objected to the ACO’s request and the Tribunal granted ACO presenter status on the conditions set out in the Order below. The Tribunal is satisfied that the ACO has a genuine interest in the subject matter of the appeals and will make a relevant contribution to the Tribunal’s understanding of the issues.

Procedural directions related to the continuation of the preliminary hearing and to the hearing of the appeal

15Prior to the preliminary hearings, problems arose with service of the Notices of Preliminary Hearing and Hearing, so that some individuals entitled to notice did not get timely notification of the preliminary hearings. This left some individuals without sufficient time to submit requests for status in the hearings before the deadline set out in the Notices. As a result, the Appellant agreed at the preliminary hearings on September 9, 2015 to serve revised notices of the continuation of the preliminary hearings and the hearings in the two proceedings.

16The Tribunal and the parties agreed to continue the preliminary hearings in the two proceedings at 10 a.m. on October 14, 2015, at the Wellington Community Centre, 111 Belleville Street in Wellington, Ontario. At that time, the Tribunal will consider any additional requests for status. In addition, the Tribunal at that time will hear any motions brought by the parties.

17The parties presented a proposed schedule for the hearing and for the procedural steps leading up to the hearing and agreed that this proceeding and that in Case Nos. 15-068 and 15-069 will be heard one immediately after the other, with the proceeding in Case No. 15-068 and 15-069 commencing first. The Tribunal confirmed the schedule, as set out below, subject to any further direction from the Tribunal, as required.

ORDER

18The Tribunal grants party status to the County, Ms. Driver and Mr. Rowse.

19The Tribunal denies party status to APPEC.

20The Tribunal grants presenter status to the ACO, subject to the following conditions:

a. comply with the Tribunal’s directions regarding the date for filing its written presentations and supporting documents;

b. if expert qualification is requested, file a resume, a signed Form 5 Acknowledgement of Expert’s Duty, and a statement of the qualification sought; and

c. limit its oral presentation at the hearing to 30 minutes, unless that time is extended by direction of the Tribunal.

21The Tribunal orders that this proceeding and that in Case Nos. 15-068 and 15-069 will be heard one immediately after the other, with the proceeding in Case Nos. 15-068 and 15-069 commencing first.

22The Tribunal confirms the following schedule:

October 2, 2015 Appellant’s disclosure, documents to be relied on at the Hearing, witness lists, witness statements and statements of proposed qualifications of expert witnesses to be served on the other parties

October 2, 2015 Motion records for any motions to be heard on October 14, 2015 to be filed with the Tribunal and served on the other parties (if applicable)

October 9, 2015 Responding motion records to be filed with the Tribunal and served on the other parties (if applicable)

October 9, 2015 Additional requests for status to be filed with the Tribunal

October 13, 2015 Reply motion materials to be filed with the Tribunal and served on the parties (if applicable)

October 14, 2015 at 10 a.m. Hearing of any motions and continuation of the Preliminary Hearing at the Wellington Community Centre, 111 Belleville Street, Wellington, Ontario

October 23, 2015 Respondents’ documents to be relied on at the Hearing, list of witnesses, witness statements and statements of areas of proposed qualification for expert witnesses to be served on the other parties

October 23, 2015 Added parties’ and presenter’s documents to be relied on at the hearing, witness statements and statements of areas of proposed qualification for expert witnesses to be served on the parties

October 30, 2015 Appellant’s reply documents, list of supplementary witnesses, supplementary witness statements, documents to be relied on at the Hearing, and statements of areas of proposed qualification for expert witnesses to be served on the other parties

October 30, 2015 One electronic copy and two hard copies of all witness statements, documents to be relied on at the Hearing, and statements of areas of proposed qualification for expert witnesses to be filed with the Tribunal

Immediately after the conclusion of hearing in Case Nos. 15-068 and 15-069 Hearing to commence at the Wellington Community Centre, 111 Belleville Street, Wellington, Ontario

County, Driver and Rowse Requests for Party Status Granted APPEC Request for Party Status Denied ACO Request for Presenter Status Granted Procedural Directions Given

“Marcia Valiante” MARCIA VALIANTE MEMBER

“Hugh S. Wilkins” HUGH S. WILKINS 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