Environmental Review Tribunal

Tribunal de l’environnement

ISSUE DATE: November 19, 2015

CASE NO.: 15-084

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

Appellant: Association for the Protection of Amherst Island

Approval Holder: Windlectric Inc.

Respondent: Director, Ministry of the Environment and Climate Change

Subject of appeal: Renewable Energy Approval for Amherst Island Wind Project

Reference No.: 7123-9W9NH2

Location: Various locations

Municipality: Loyalist Township

Upper Tier: County of Lennox and Addington

ERT Case No.: 15-084

ERT Case Name: Association for the Protection of Amherst Island v. Ontario (Environment and Climate Change)

Heard: October 15, 2015 in Bath, Ontario

APPEARANCES:

Parties Counsel/Representative

Association for the Protection of Amherst Island Asha James

Director, Ministry of the Environment and Climate Change Andrea Huckins and Jessica Rosenberg (student-at-law)

Windlectric Inc. John Terry and Dennis Mahony

Participants

Cataraqui Region Conservation Authority Rob McRae and Tom Beaubiah

Amy Caughey Self-represented

Presenters

Kingston Field Naturalists Erwin Batalla

Eric Welbanks Self-represented

ORDER DELIVERED BY MARLENE CASHIN AND ROBERT V. WRIGHT

REASONS

Background

1On August 24, 2015, Ian Greason, Director, Ministry of the Environment and Climate Change (the “MOECC”) issued Renewable Energy Approval No. 7123-9W9NH2 (the “REA”) to Windlectric Inc. (the “Approval Holder”), granting approval for the construction, installation, operation, use and retiring of a Class 4 wind facility with a total nameplate capacity of 74.3 megawatts, consisting of 26 wind turbines, a transformer substation, on-site access roads, underground cabling and overhead power lines, and a temporary ready-mix Concrete Batching Plant (collectively the “Project”). The Project is to be located at various locations in Loyalist Township, County of Lennox and Addington, Ontario (the “Site”).

2On September 8, 2015, the Association for the Protection of Amherst Island (the “Appellant”) appealed the REA to the Environmental Review Tribunal (the “Tribunal”) on the grounds that engaging in the Project in accordance with the REA will cause serious harm to human health, and serious and irreversible harm to the natural environment and animal life.

3The preliminary hearing was held in Bath, Ontario on October 15, 2015. At the preliminary hearing the Tribunal granted requests for participant or presenter status made by Amy Caughey, the Cataraqui Region Conservation Authority, Eric Welbanks, and the Kingston Field Naturalists. This order provides the reasons for granting such status, and provides directions regarding procedural matters.

Relevant Rules

4Rules of Practice of the Tribunal

Naming of a Participant

66. 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

67. 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.

68. 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

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.

Issues

5The issues are:

1. whether to grant the requests for participant and presenter status; and

2. procedural directions.

Discussion, Analysis and Findings

Issue 1: Whether to grant the requests for participant and presenter status

The Parties

6The parties did not oppose the requests for status. The Director asked for clarification from the proposed participants and presenters as to whether they would be seeking qualification of an expert witness, and that the Tribunal set a date by which their materials would be filed. The Approval Holder asked that status be granted on the basis that participants and presenters: keep their written and oral presentations within the jurisdiction of the Tribunal under the Environmental Protection Act (the “EPA”) and within the scope of the notice of appeal; file information regarding their presentations in advance of the hearing; follow the Tribunal’s Rules regarding any proposed expert witnesses; give their evidence and presentations in a reasonable time frame, i.e., thirty minutes or less; and, where appropriate, avoid duplication by coordinating with the other participants and presenters raising similar concerns.

Cataraqui Region Conservation Authority

7The Cataraqui Region Conservation Authority (“CRCA”) requested participant status in the proceeding. Rob McRae and Tom Beaubiah represented the CRCA, and said that the CRCA’s primary interest in the case relates to its ownership of a portion of the “Owl Woods” on Amherst Island, which was purchased to conserve owl habitat and to provide opportunities for managed public access. He stated that the CRCA has not taken a position on the overall merits of the Project, but that it intends to present its “understanding of the island fauna, including species at risk, and the anticipated relationships between those species, their habitat, and the project.”

8The request for status was unopposed and the Tribunal found that CRCA has a genuine public interest in the subject matter of the proceeding and is likely to make a relevant contribution to the Tribunal’s understanding of the issues. The Tribunal granted the CRCA participant status in the proceeding subject to the general conditions set out in the order below.

Amy Caughey

9Ms. Caughey sought participant status in the proceeding. She is a resident of Stella, and has young children who attend Amherst Island Public School, and use the Community Center, both of which are located immediately adjacent to the proposed location of the Project’s concrete batch plant and laydown yard. She said that her interest in the proceeding is both private and public, as she is concerned not only for her own children’s health and safety, but also about the Project’s potential negative effects on children on Amherst Island. Ms. Caughey said that her presentation would focus on the lack of information regarding cumulative impacts of contaminants to be emitted into the atmosphere from the concrete batching plant and risks associated with industrial traffic, and how those factors will affect child health and safety in the vicinity of the Project.

10Ms. Caughey’s request for participant status at the proceeding was not opposed. The Tribunal found that she has a genuine interest in the subject matter of the proceeding and is likely to make a relevant contribution to the Tribunal’s understanding of the issues. The Tribunal granted Ms. Caughey participant status in the proceeding subject to the general conditions set out in the order below.

Kingston Field Naturalists

11The Kingston Field Naturalists (“KFN”) sought presenter status in the proceeding. Erwin Batalla made the request as the representative for the organization. Mr. Batalla said that the KFN is a naturalist club whose mission is to protect the natural environment. He stated that the KFN owns a nature reserve at the east end of Amherst Island and that the group is concerned that serious and irreparable harm will occur to the Bobolink bird population on Amherst Island as a result of the construction and operation of the Project. The KFN proposes to provide data about the Bobolink on Amherst Island, and provide data about mortality of the species caused by wind turbines on the adjacent Wolfe Island.

12This request for status was not opposed and the Tribunal found that KFN has a genuine public interest in the subject matter of the proceeding and is likely to make a relevant contribution to the Tribunal’s understanding of the issues. The Tribunal granted KFN presenter status in the proceeding subject to the general conditions set out in the order below.

Citizens of Amherst Island for Renewable Energy

13Eric Welbanks sought presenter status in the proceeding on behalf of Citizens of Amherst Island for Renewable Energy (“CAIRE”). Mr. Welbanks told the Tribunal that CAIRE is an unincorporated organization made up of approximately 120 people who support the Project, and that virtually all of them live on Amherst Island. He added that all of the landowners who will have Project turbines on their properties are members of the group, and that CAIRE has been involved with the Project for eight and a half years. Mr. Welbanks said that CAIRE’s presentation would include aspects of both health and environment issues, and will provide a chronology outlining the involvement, concerns, and eventual support of the group for the Project.

14The request for status was not opposed and the Tribunal found that Mr. Welbanks and the members of CAIRE have an interest in the subject matter of the proceeding and that they are likely to make a relevant contribution to the Tribunal’s understanding of the issues. The Tribunal granted presenter status to Mr. Welbanks on behalf of, and as the sole spokesperson for, CAIRE in the proceeding subject to the general conditions set out in the order below.

Issue 2: Procedural directions

15The parties provided a proposed schedule for the procedural steps in the proceeding. By this order, the Tribunal confirms the schedule as set out below, and subject to further direction from the Tribunal as required, with some changes confirmed with the parties, participants and presenters by email through the Tribunal Case Coordinator subsequent to the preliminary hearing on October 15, 2015.

ORDER

16The Tribunal confirms the granting of participant status to CRCA and Amy Caughey, and presenter status to KFN and Eric Welbanks. The participants and presenters are directed to: keep their presentations within the scope of the Tribunal’s jurisdiction under the EPA, and the notice of appeal; comply with the Tribunal’s directions regarding the date for filing their presentations and supporting documents; limit their oral presentations at the hearing to approximately 30 minutes, subject to further direction of the Tribunal; and comply with the Tribunal’s Rules regarding any expert witnesses.

17The Tribunal orders the following schedule for the proceeding:

Oct. 26, 2015 Appellant’s witness statements to be served on the other parties, participants and presenters and filed with the Tribunal

Oct. 28, 2015 Participants’ and presenters’ witness statements to be served on the other parties, participants and presenters and filed with the Tribunal

Nov. 24, 2015 Hearing of motions at the Tribunal’s office at 655 Bay Street in Toronto

Nov. 25, 2015 Respondents’ witness statements to be served on the other parties, participants and presenters and filed with the Tribunal

Dec. 1, 2015 Reply witness statements of the Appellant (if any) to be served on the other parties, participants and presenters and filed with the Tribunal

Dec. 3, 2015 Hearing of the appeal begins and continues on December 4, 8, 9, and 10, with December 11 as a potential additional date

Jan. 8, 2016 Appellant’s and participants’ written closing submissions to be served on the other parties, participants and presenters and filed with the Tribunal

Jan. 26, 2016 Respondents’ written closing submissions to be served on the other parties, participants and presenters and filed with the Tribunal

Jan. 29, 2016 Appellant’s written reply submissions to be served on the other parties, participants and presenters and filed with the Tribunal

Week of Feb. 8, 2016 Oral final submissions to be scheduled during this week

Requests for Participant and Presenter Status Granted

Procedural Directions Ordered

“Marlene Cashin”

MARLENE CASHIN MEMBER

“Robert V. Wright”

ROBERT V. WRIGHT VICE-CHAIR

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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