Canada: Ruling: Wind Turbine Approvals Comply With The Charter

Last Updated: January 8 2014
Article by Dianne Saxe

The Environmental Review Tribunal has approved another wind farm, in Bovaird v. Director, Ministry of the Environment, Case Nos.: 13-070 to 13-075. The Dufferin Wind Power Project, in the Township of Melancthon, County of Dufferin, is now approved to build 49 wind turbines with the capacity to generate 91.4 MW of power annually. As part of its approval, the Tribunal decided, for the first time, that the Environmental Protection Act rules for wind turbine approvals do comply with the Canadian Charter of Rights and Freedoms (the "Charter"). Good news for green energy, and for those who care about climate change.

In many previous cases, wind opponents have lost because they cannot prove that wind turbines, built in accordance with the EPA and its regulations, are likely to cause harm to human health. This is the statutory test they must meet. Wind opponents therefore now argue that the renewable energy approval process established by the EPA violates their right to security of the person under s. 7 of the Charter.

Their Notice of Constitutional Question alleged:

"4. The legislative scheme for granting approvals to wind farm projects violates the Applicant's right to security of the person as guaranteed by section 7 of the Charter in that approvals can be issued to project proponents notwithstanding the known adverse health effects.

5. Industrial wind turbines (IWT's) are recognized for causing a range of serious health effects such as sleep disturbance, headache, tinnitus, ear pressure, dizziness, vertigo, nausea, visual blurring, tachycardia, irritability, problems with concentration, and so on, particularly when IWTs are erected within 2 kilometres of an occupied residence.

6. As a result of the regulatory process which does not require the project proponent to establish that there are no adverse health effects associated with IWTs, it is clear that there will be health effects that will violate the section 7 rights of the Applicant.

7. Furthermore, reversing the burden of proof in circumstances where there is evidence of adverse health effects is itself a violation of s. 7.

8. The Director has the discretion to grant or refuse approval of a renewable energy project. The Director's decision must conform to the Charter. By approving this project the Director has violated the Applicant's right to security of the person and such violation is not in accordance with the principles of fundamental justice."

 The Tribunal rejected all of these claims. While some people find wind turbines annoying, subjective annoyance is not so serious an infringement of personal security to constitute a breach of the Charter. Instead, it is the sort of stress and strain that everyone has to put up with:

"[504] ... the Appellants brought evidence in this case that some people will be annoyed by wind turbine projects. As noted in the Tribunal's findings in the health section above, whether a person will be annoyed by wind turbine noise at 40 dBA is a subjective reaction which cannot be predicted with any accuracy, and the impact of that annoyance on the person's health status is not clear.

[505] As concluded in the WHO (Europe) 2011 Report, annoyance is difficult to define. While it may be that severe and prolonged annoyance may lead to stress-related physical effects in some cases, the evidence before the Tribunal in this case does not make even that qualified a connection between possible stress-related physical effects and wind turbines, where noise is limited to 40 dBA.

[506] On the evidence before us, the Tribunal finds that the annoyance referred to in the Howe study is a subjective psychological state. According to the Supreme Court of Canada in Blencoe, an interference with psychological integrity must have a "serious and profound effect on psychological integrity", to engage s. 7 of the Charter. The Appellants in this case have not established human health effects through annoyance to be more significant than "ordinary stress or anxiety", as discussed in Blencoe.

[507] Supreme Court of Canada jurisprudence has stated that physical harm must be "serious" to engage s. 7. If annoyance were accepted to have physical effects, which was not established on the evidence, those effects would have to be serious to engage s. 7. The Tribunal finds the evidence in this proceeding does not rise to the level of seriousness required to engage s. 7.

[508] With respect to the post-turbine witness' evidence, as noted above it has not been established that the health complaints they assert are causally connected to wind turbines, including those resulting from annoyance caused by wind turbines...

[521] Assuming, without deciding, that wind turbines will cause annoyance in a percentage of the population consistent with Mr. Howe's report, the Appellants have nevertheless not established that annoyance per se constitutes serious harm to human health, or even that this Project will cause any health impacts at the set-back distances and sound pressure levels mandated.  Annoyance per se has not been proven to be a health effect, and is too vague a concept to be considered serious harm so as to engage s. 7 of the Charter.  The constitutional challenge therefore fails on the evidence."

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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Dianne Saxe
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