To date, every Renewable Energy Approval for a wind farm has
been appealed to the Environmental Review Tribunal. The
Environmental Review Tribunal rejected the first appeal, for the
Kent Breeze wind farm, but ruled that it will allow the same or similar
evidence in subsequent cases.11-208 MIDDLESEX-LAMBTON WIND ACTION
GROUP INC. Essentially, the claim is that noise from turbines
interferes with sleep and thus causes harm to human health.The ERT
described Zephyr's argument as:
Zephyr asks that the Tribunal rule on the correct interpretation
of sections 142.1, 145.2(2) and 145.2.1 of the EPA with respect to
the scope of a hearing of a REA appeal. Zephyr submits that these
sections define the scope of permissible evidence and takes the
position that this evidence is limited by the fact that a REA
hearing is not a new hearing. As a result, Zephyr argues that the
Tribunal may only review the decision of the Director, and to do
that may only review the record that was before the Director and
any evidence that meets the test for new evidence.
The effect of this argument would have been to prevent the
appellants from bringing new evidence at the hearing, such as the
evidence already led in the Kent Breeze case. The ERT rejected this
attempt to limit its jurisdiction:
The Tribunal finds that the role of the Tribunal in a REA
hearing under section 145.2.1 is to "review" the
Director's decision and "consider only" whether the
listed harms will be caused by the approved project. Thus, the
hearing is not a full new hearing but is limited to the
consideration of a restricted set of issues. To carry out its
mandate, the Tribunal must make independent findings of fact about
the specific harms an appellant claims will be found in the
circumstances and must reach a conclusion that could very well
differ from that of the Director. ... The Tribunal finds that the
legislative scheme for an REA hearing required by a non-applicant
creates neither a "new hearing" nor a "true
appeal". The nature of the REA hearing fits somewhere on a
spectrum between these two types of proceedings, and has elements
of both. ..
Members of the public making comments on a proposal do not see
themselves necessarily as "potential appellants" and,
given the short time period in which they have to make comments, it
would be unfair to require them to marshal all their appeal
"evidence" at that stage. This means that information
relevant to the issues in appeal can be brought before the Tribunal
at the hearing as evidence even if that information was not
submitted to the Director at an earlier stage. ... The key
determinant of admissibility of evidence at the hearing should be
the relevance of the material to the issues under consideration, as
defined in the Notice of Appeal and limited by the statute....
The Tribunal, therefore, finds that the scope of permissible
evidence in an appeal of a REA pursuant to sections 142.1 and
145.2(1) and (2) of the EPA is not limited to the following two
classes of evidence: (i) evidence that was before the Director
during his decision-making process that lead to his decision under
section 47.5 of the EPA; and (ii) new evidence that was not in
existence during the Director's decision-making process, or for
reasons beyond the Appellants' control, was not obtainable
during the Director's decision-making process, and which
evidence is material to an issue to this hearing, is credible and
could affect the result of the Hearing.
In response to the ruling, the Middlesex-Lambton Wind Action
Group has announced that they will abandon their appeal against the
REA granted to the Zephyr wind farm. Instead, opponents are
gathering their forces to oppose the Mapleton Next Era wind farm
REA, in ERT appeal 11-228 PRESERVE MAPLETON INCORPORATED V.
Meanwhile, renewable energy approvals that have been granted to
build ground-level solar farms on agricultural land have NOT been
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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.
In Bank of Montreal v Bumper Development Corporation Ltd, 2016 ABQB 363, the Alberta Court of Queen's Bench enforced the "immediate replacement" provision in the Canadian Association of Petroleum Landmen 2007 Operating Procedure...
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