August 1, 2016
by Paula Peel, APPEC
At the end of June everything was on track for the remedy hearing. We were encouraged to see our Tribunal members, Marcia Valiante and Hugh Wilkins, endorsing key findings in the Ostrander decision in their June 30 Order including the use of the Precautionary Principle and the ecosystem approach, its finding that harm should be evaluated based on the balance of probability and its finding that the Tribunal can “stand in the shoes of the Director” with full access to the scope of the powers given to the Director under the relevant part of the Environmental Protection Act and other regulations and policies.
However on July 12 the Tribunal issued a procedural statement that was highly prejudicial to APPEC. In a July 27 teleconference with the Tribunal identified 11 issues of concern with the process the Tribunal had put forward for the Remedy Hearing, including allowing the Ministry of the Environment and Climate Change and WPD to introduce reply evidence after all APPEC’s evidence was served, filed and cross examined. This process is directly contradictory to the process the courts have established in the Rules of Civil Procedure.
The following day the Tribunal suspended its schedule and requested submissions from the parties on process. One of our submissions deals with the “clock stop challenge”. At this point in time there are only four hearing days left. While the ERT is adjourned and technically the clock is stopped, Mr. Gillespie pointed out that legal work is still on-going with submissions, motions, qualifications of witnesses, evidence preparation, disclosure and many other tasks that typically take hearing time.
Other submissions will include requesting full disclosure from the Ministry of the Environment and Climate Change. Mr. Gillespie noted that according to the rules the Ministry should have been disclosing information to the Appellants on an ongoing basis these past five months. We are also requesting that the Ministry provides the actual wording in the revised REA up front, at the start of the hearing. This is to ensure a fair hearing, which it clearly would not be if the Ministry and WPD are permitted to revise and add more mitigations “on the fly” during the hearing.
At this time there is a big question mark whether it will be an oral or a written hearing. In its July 12 procedural statement the Tribunal only set aside one day for a hearing of final oral submissions in the County with the remainder of the hearing done in writing.
Needless to say the remedy hearing is delayed. In the mean time APPEC is reviewing over 300 pages of material from wpd and the Ministry on the Blanding’s turtle and on Little Brown Bats. APPEC will call our own expert witnesses to respond to their proposed mitigations.