Law Times

Page 9 Law TiMes ��� March 25, 2013 Wind turbine appeals blowing across Ontario Despite loss in Haldimand case, lawyer believes one success would affect other matters BY SIOBHAN McCLELLAND For Law Times A s more wind turbines pop up on the Ontario landscape, the trend of unsuccessful appeals of renewable energy approvals continues. On Jan. 31, 2013, the Environmental Review Tribunal released its decision dismissing the appeal of the approval of a wind generation farm in Haldimand Wind Concerns v. Director, Ministry of the Environment. The tribunal concluded the appellants failed to show the project would cause serious and irreversible harm to plant life, animals or other aspects of the natural environment. The tribunal also found the appellants hadn���t established that the project caused serious harm to human health. It recommended the appropriate agencies conduct studies to monitor the impact of wind turbine projects over time on the migratory staging and foraging habits of tundra swans along the northern shoreline of Lake Erie. The case is just one of a number of appeals of renewal energy approvals that have arisen recently in Ontario and there are more to come. ���There���s going to continue to be some litigation in this area for a little while yet as these projects are going through the various levels of approvals,��� says Adam Chamberlain, counsel for Capital Power GP Holdings Inc. in the Haldimand Wind Concerns appeal. ���I think there are understandably concerns about infrastructure development whenever large infrastructure is being built near where people live or work. I think the wind sector, in Ontario anyways, has been the subject of probably more appeals and more judicial attack than wind projects outside of Ontario.��� As noted in the Haldimand Wind Concerns appeal, the appellants can succeed only if they provide sufficient evidence that the wind turbine project will cause serious harm to human health or have serious and irreversible effects on plant life, animals or other aspects of the natural environment. Eric Gillespie, counsel for Haldimand Wind Concerns, notes the challenge of bringing forward all of the ���What that means is if even one factual evidence at the hearing to of these appeals is successful, it apmeet either test. The six-month pears that that will have direct imtime frame under the legislation plications for every project that���s has had a significant effect on the been approved so far or that���s under ability of appellants to bring their consideration by the government,��� cases forward at appeals, he says. says Gillespie. ���The statutory time frame di���If the government were to say rectly affected a number of the prethat no trucks in Ontario should vious hearings because if witnesses operate at more than 90 kilomehave health issues or if counsel has tres an hour, that would apply to conflicts [in their schedule], that not only trucks that might be built doesn���t stop the clock.��� Rather, the in the future but trucks that have tribunal has to release its decision already been constructed that are within six months. already on the road today. So if Chamberlain notes the sixit���s determined that wind turbines month period addresses concerns shouldn���t be permitted to operate that wind farm projects would ���die at the current sound levels and on the vine��� and languish if apsetback distances, that would appeals were to delay matters. ply not only to whatever project The latest in a series of appeals that finding is made in relation of renewable energy approvals are to directly, but since all the other happening now in Prince Edward County, Ont. Gillespie says the Short time frames for hearing appeals have made renewable energy approvals have tribunal recently began hearing it difficult to present all of the evidence, says Eric been granted using that same setback, that same sound level, that evidence on the appeals. He antici- Gillespie. same speed limit so to speak, that���s pates the hearing will wrap up by the end of May and the tribunal will release its decision why many people believe that a finding at any one of these hearings will directly impact all of the existing by the end of June. ���In order to be successful with an appeal, the appel- projects as well as future projects.��� Chamberlain disagrees that one appeal would affect lants believe that the next step is showing direct linkages to existing projects that are operating within the same all of the other cases that have gone before it. ���The Ministry of the Environment already sets out range of distance and sound levels as the current approval process is permitting. That���s where the evidence on the the setback distances for turbines and other things. If a decision was going to be made to change setback rehuman health side is focused.��� Gillespie hopes to introduce all of the evidence on quirements, that would have to be made by the reguthe harm to humans and the environment at the hear- lator. It���s not within the power of the tribunal to make ing. If the appeal is successful, he says the decision those changes. Unless somebody would be able to prove could affect not only the approval under appeal but ��� which nobody has yet ��� that based on the designs other cases as well. He notes that the current standard is and the regulations that are in place now either of those to build wind turbine projects with a 550-metre setback tests are met, you���re not going to see anybody changing distances.��� LT and a 40-decibel sound level. Government seeking SCC hearing on consultation, accommodation BY SIOBHAN McCLELLAND For Law Times T he Yukon Court of Appeal is giving First Nations greater protection to ensure consultation and accommodation when it comes to mining exploration claims. In a Dec. 27, 2012, decision, the appellate court in Ross River Dena Council v. Government of Yukon made two declarations in relation to the Crown���s duty to consult with First Nations. First, it found the government has a duty to consult with the Ross River Dena Council on whether mineral rights on Crown lands in the Ross River area should be available to third parties such as mining exploration companies. Second, it found the government has a duty to notify and, where appropriate, consult with and accommodate the Ross River Dena before allowing any mineral exploration activities to take place within the Ross River area to the extent that they may prejudicially affect aboriginal rights. The appeal court noted that while a weak claim may only require the Crown to notify the First Nation of the proposed activity, a strong case or one where the proposed activity has a significant effect requires deeper consultation and more likely will require accommodation. However, the appeal court didn���t say how the Yukon regime was to do this, leaving uncertainty as to what must happen for consultations to be meaningful. The court left it to the government to develop a regime in the one year during which the declarations are on hold. Stephen Walsh, counsel for the Red River Dena, sees the case as just ���one more in a long line of cases that confirm that when you have Crown conduct that might adversely affect asserted but unproven claims of aboriginal title or other Court of Appeal says, you have to sort of agree right off the bat what part of the territory is open for staking before you allow any staking.��� On Feb. 25, 2013, the Yukon government filed an application to seek leave to appeal to the Supreme Court of Canada. The Red River Dena will be filing responding materials around the end of this month. Ullyett is hoping the Supreme Court In other jurisdictions, the Class 1 activities would trigger the duty to consult because they require permits. aboriginal rights, [governments] have a duty to consult prior to the conduct of those activities.��� Tom Ullyett, assistant deputy minister of Legal Services at the Yukon Department of Justice, acknowledges the government has a duty to consult First Nations before mining exploration activities take place. But what interested him most about the decision was the question as to at what point the government���s obligation to consult with the First Nation arises in the context of a mineral claim. He notes the appeal court said that prior to recording any mineral claims, the government had to consult the Red River Dena about which parts of the Ross River area were open for staking before allowing the activity to take place. ���Is it before mineral staking? Is it after a claim has been staked? Or, as the will grant leave to appeal and help clarify when the duty to consult kicks in. ���This is more than just a question of law. This is about the economy of the Yukon. It���s about relationships, government-to-government relationships, between the Yukon government, the Ross River Dena Council, and even other First Nations governments. There are a number of things at stake here.��� In his reasons on behalf of the majority, Justice Harvey Groberman noted the open-entry system ���has considerable value in maintaining a viable mining industry and encouraging prospecting��� and that ���there is a long tradition of acquiring mineral claims by staking and that the system is important both historically and economically to Yukon.��� However, he also said there must be changes in order for www.lawtimesnews.com the Crown to act in accordance with its constitutional duties. Ullyett says that since other provinces in Canada also have free-entry systems to address mining claims, this isn���t just an issue that concerns the Yukon or the Red River Dena. ���We think what we���ve asked the Supreme Court to provide clarity upon will impact outside of the Yukon and will provide guidance for governments across Canada in terms of the interrelationship between their freeentry systems and mineral claims that either fall on First Nations land or land that First Nations have asserted title to.��� However, Walsh disagrees that the decision applies to other jurisdictions to the extent the Yukon government suggests. He notes that ���in other socalled free-entry jurisdictions ��� British Columbia and Ontario come to mind ��� Class 1 activities that could be conducted in the Yukon with no notice, no permit, no consultation, no environmental screening, all require permits in those other jurisdictions.��� ���In other jurisdictions, the Class 1 activities would trigger the duty to consult because they require permits,��� he says. He adds that in some other freeentry jurisdictions in Canada, ���there aren���t any claims to aboriginal title because they���ve been surrendered through treaties and land-claim agreements. That aspect of this decision wouldn���t have much significance in a number of other jurisdictions.��� LT

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