On November 10, 2010, Suncor Energy Services Inc.'s Kent
Breeze 20 MW eight-turbine wind farm in Chatham-Kent, Ontario,
received the first Renewable Energy Approval (REA) pursuant to
Ontario's Green Energy Act. The REA has been appealed
to the Ontario Environmental Review Tribunal (ERT), and the hearing
is scheduled to begin February 1, 2011. We will provide updates to
you about the appeal.
To succeed, the applicants (local residents) must meet an
onerous test under the Ontario Environmental Protection
Act. Specifically, the applicants must establish that it is
more likely than not that the wind farm will cause (i)
serious harm to human health, or (ii) serious and
irreversible harm to plant life, animal life or the natural
The applicants will be presenting evidence to show that serious
harm to human health will occur because of exposure to the
infrasound and/or low frequency noise and shadow flicker from wind
turbines. There may also be evidence regarding the impact to human
health resulting from the visual impact of wind turbines, as well
as exposure to ice throw and turbine failure.1 The
applicants have indicated they intend to call nine witnesses from
around the world, including the United States, Australia, New
Zealand and the United Kingdom.
In response, we understand that Suncor Energy and the Minister
of the Environment's Director will present evidence from
experts in the United States and the UK.
If the ERT were to conclude that serious harm to human
health will result from the wind farm, it could: revoke
the REA; direct the Director to take such action as the ERT
considers appropriate; or substitute its own decision for that of
the Director. If the ERT were to conclude that no such harm will be
caused, it would have to confirm the Director's decision.
The appeal hearing is scheduled to start on February 1 in
Chatham, Ontario, and is expected to conclude by March 31 (with 16
hearing days scheduled). Pursuant to the Environmental
Protection Act, the ERT is required to issue its decision by
May 30, 2011 (i.e., six months from the date of the notice
The six-month timeframe for issuance of the ERT's decision
may impact the ERT's obligation to ensure that its process is
fair for all parties. In this regard, the Director's counsel
has already mentioned that the condensed process, in combination
with an alleged lack of timely disclosure of evidence on the part
of the applicants, has hampered her ability to prepare for the
Fairness in the process may be further impacted by the
applicants' request for confidentiality over their main
expert's study. Confidentiality has been sought by the
applicants to protect the expert's ability to preserve the
rights to future publication in peer-reviewed journals. We are not
aware of any such claim being made in the past, and would be
surprised if the ERT were to grant this request. If the ERT were to
grant the confidentiality request, it would likely need to hold
portions of the hearing in camera (i.e., in
private, without public access).
Regardless of what happens, we expect that this matter will not
end at the ERT. An appeal to the Divisional Court is available for
questions of law, and judicial review is always a possibility.
Despite the appeal, Suncor Energy commenced construction on
November 11, 2010, which it had (and has) the right to do.
Construction is ongoing and is expected to be complete by May 2011,
about the time the ERT's decision may be released.
It is noteworthy that there is an unrelated challenge at the
Ontario Divisional Court, currently ongoing, regarding the setback
requirements for wind projects.
1. These topics are listed in the Applicants' Notice
of Appeal, but only William Palmer, who has been granted Presenter
status, intends to speak to these issues. The Minister of the
Environment's Director and Suncor Energy are of the view that
Presenters do not have the legal authority to broaden the scope of
the hearing (beyond the topics that will be addressed by the
Applicants' witnesses). No ruling by the ERT has been made on
this issue yet.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Canada is a constitutional monarchy, a parliamentary democracy and a federation comprised of ten provinces and three territories. Canada's judiciary is independent of the legislative and executive branches of Government.
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