Environmental Review Tribunal

Tribunal de l’environnement

ISSUE DATE: November 6, 2015

CASE NO.: 15-068

PROCEEDING COMMENCED UNDER section 142.1(2) of the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended

Appellant: John Hirsch (File No.15-068)

Appellant: Alliance to Protect Prince Edward County (File No.15-069)

Approval Holder: wpd White Pines Wind Incorporated

Respondent: Director, Ministry of the Environment and Climate Change

Subject of appeal: Renewable Energy Approval for White Pines Wind Project

Reference No.: 2344-9R6RWR

Municipality: County of Prince Edward

ERT Case No.: 15-068

ERT Case Name: Hirsch v. Ontario (Environment and Climate Change)

Heard: October 14, 2015 in Wellington, Ontario

APPEARANCES:

Parties

Counsel/Representative^+^

John Hirsch

Self-represented

Alliance to Protect Prince Edward County

Eric Gillespie

wpd White Pines Wind Incorporated

Patrick Duffy

Director, Ministry of the Environment and Climate Change

Andrew Weretelnyk

Presenters

Prince Edward Point Bird Observatory

Kathy Felkar^+^

Christopher Currie

Self-represented

Hastings and Prince Edward Land Trust

Richard Bird^+^

Roxanne MacKenzie

Self-represented

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 “Approval Holder”) 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”). The Director’s decision to issue the REA did not include approval of two proposed wind turbines included in the Approval Holder’s application for the REA. The REA states that these wind turbines were refused “to ensure that impacts to identified cultural resources and protected properties are mitigated sufficiently and appropriately.”

2On July 29, 2015, John Hirsch filed a notice of appeal of the REA with the Environmental Review Tribunal (the “Tribunal”), pursuant to s. 142.1 of the Environmental Protection Act (“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. A third appeal, by the Prince Edward County South Shore Conservancy (“PECSSC”), was withdrawn and dismissed by the Tribunal in its Order dated September 30, 2015.

3Also on July 31, 2015, the Approval Holder filed a notice of appeal with the Tribunal pursuant to s. 139 of the EPA seeking an amendment to the REA to increase the total number of wind turbines in the Project to 29. The issues in that appeal relate to the protection of cultural resources and heritage properties. The Tribunal has assigned that appeal Case No. 15-071.

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 appeals brought by Mr. Hirsch, APPEC and PECSSC and in the appeal brought by the Approval Holder in Wellington, Ontario. The preliminary hearings were continued by TCC on September 18, 2015. The Tribunal issued two Orders on September 30, 2015 addressing the issues raised at those preliminary hearings.

6On October 14, 2015, the Tribunal held a continuation of the preliminary hearings in the appeals in Case Nos. 15-068, 15-069 and 15-071. In the Hirsch and APPEC appeals, the Tribunal granted presenter status to several persons. This Order provides the reasons for those determinations.

Issue

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

Relevant Rules

8Rules of Practice of the Environmental Review Tribunal

Naming of a Party

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.

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.

Analysis and Findings

9The Prince Edward Point Bird Observatory (“PEPtBO”) requested presenter status. PEPtBO is located on the eastern tip of Prince Edward County. Its members act as caretakers of the Prince Edward County South Shore Important Bird Area, where they have been monitoring and collecting data on avian migration and species at risk for 20 years. PEPtBO wants to provide evidence about the species and numbers of birds migrating through the area, stopover sites and breeding areas, and the impacts of the Project on them. No party objected to the granting of presenter status to PEPtBO and the Tribunal granted that status to it. The Tribunal is satisfied that PEPtBO has a genuine public interest in the subject matter of the appeal and will make a relevant contribution to the Tribunal’s understanding of the issues.

10Christopher Currie requested presenter status. He and his wife own property on the south shore of Prince Edward County and he has spent extensive time observing the landscape and wildlife in the area close to the Project site. Mr. Currie wants to present evidence concerning hydrology, wetlands, animal life and habitats in the area. No party objected and the Tribunal granted presenter status to Mr. Currie. The Tribunal finds that he has a genuine interest in the subject matter of the hearing and will make a relevant contribution to the Tribunal’s understanding of the issues.

11The Hastings and Prince Edward Land Trust (the “Land Trust”) requested presenter status. The Land Trust has a long-standing interest in natural heritage protection on the south shore of Prince Edward County and, in 2012, purchased 490 acres adjacent to the Project site. The Land Trust wants to present evidence on the ecosystems in this area. No party objected to the Land Trust having presenter status, but there were some questions raised about how the representatives of the Land Trust would present certain expert reports. The Tribunal granted presenter status to the Land Trust. The Tribunal finds that the Land Trust has a genuine interest in the subject matter of the hearing and will make a relevant contribution to the Tribunal’s understanding of the issues.

12Roxanne MacKenzie requested presenter status. She lives near Bloomfield, in Prince Edward County, and wants to make a presentation about the impacts of wind turbines on human health, birds, tourism and property values. No party objected to her being granted presenter status; however, the Director pointed out that the impacts of the Project on tourism and property values are outside the scope of the appeals. The Tribunal granted presenter status to Ms. MacKenzie. The Tribunal is satisfied that she has a genuine interest in the subject matter of the hearing and will make a relevant contribution to the Tribunal’s understanding of the issues. The Tribunal believes that the scope of her presentation can be addressed through the imposition of the conditions required of all participants and presenters, which are set out below.

ORDER

13The Tribunal grants presenter status to the Prince Edward Point Bird Observatory, Christopher Currie, the Hastings and Prince Edward Land Trust, and Roxanne MacKenzie.

14The Tribunal orders that those granted status:

a. keep their presentations within the scope of the Tribunal’s jurisdiction as defined by the EPA and as set out in the notices of appeal;

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

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

d. limit their oral presentations at the hearing to 30 minutes, unless that time is extended by direction of the Tribunal; and

e. coordinate with other participants and presenters raising similar issues, if directed to do so by the Tribunal.

Presenter Status Granted

“Marcia Valiante”

MARCIA VALIANTE

MEMBER

“Hugh S. Wilkins”

HUGH S. WILKINS

MEMBER

If there is an attachment referred to in this document, please visit www.elto.gov.on.ca to view the attachment in PDF format.

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