White Pines October 14 Preliminary Hearing

Report on October 14 Preliminary Hearing for the White Pines Wind Project
by Paula Peel

The Environmental Review Tribunal met this week in Wellington to consider additional requests for Presenter status and to hear a motion on the “139” heritage appeal.

Kathy Felkar of the Prince Edward Point Bird Observatory (PEPtBO) advised the Tribunal that 12 wind turbines are in the South Shore Important Bird Area with another 2 turbines on its northern border. Ms. Felkar noted that PEPtBO has been collecting data for the past 15 years and that this data will be presented as evidence. Stewart Murray of Hastings-Prince Edward Land Trust (HPELT) told the Tribunal that the Miller Family Nature Reserve, located at the centre of the White Pines Wind Project Study Area, has some of the most critical and sensitive bird habitat in Southern Ontario. Mr. Murray noted that both Nature Conservancy Canada and Ontario Heritage Trust recognize the high conservation priority of the site and assisted with funding to purchase it.

In total five County residents and three groups – Hardie Wines, HPELT and PEPtBO – will provide evidence to the Tribunal that the White Pines Wind Project will cause serious harm to human health and to the natural environment.

After a short break the Tribunal reconvened to deal with wpd’s appeal of the removal of two turbines (T7 and T11) from its proposed wind project. The Tribunal heard a motion from Talia Gordner, with Blaney McMurtry LLP, legal counsel acting on behalf of Liz Driver and Edwin Rowse seeking an order to stay the “139” proceeding pending the outcome of a judicial review application to the Divisional Court. Ms. Gordner noted that an order is being sought from the Court to set aside the REA for the White Pines Wind Project on the grounds of serious deficiencies in the heritage assessment and the approval process.

Ms. Gordner observed that this is the first appeal under the Ontario Heritage Act since the passing of the Green Energy Act and that the Divisional Court would be an appropriate venue to consider the legal test. However Ms. Gordner noted that even from a practical standpoint it was unnecessary to have two separate proceedings dealing with the same facts. Samantha Foster with Wayne Fairbrother, legal counsel for the County of Prince Edward, supported the motion and argued for an adjournment. Patrick Duffy, lawyer for wpd White Pines Inc., argued that the motion for a stay should have been made immediately after the approval was issued in July and Andrew Weretelnyk, lawyer for the Ministry of the Environment, agreed. Hugh Wilkins, one of the Tribunal members, asked about the distinction between a stay and an adjournment. Ms. Gordner suggested that a stay is for a more lengthy delay but that the Tribunal can call it a stay or an adjournment at its discretion. The Tribunal is considering the motion and will issue a decision at a later date.

The main White Pines Wind Project ERT Hearing starts Monday, November 2nd.

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