Law Times

PAGE 14 But industry confident evidence is on its side in ongoing matters FOCUS Wind challenge not over yet BY ROBERT TODD Law Times case involving a challenge to re- quirements for wind turbine setbacks, but opponents to the regulations say the issue is still very much alive. Th e application for judicial T review in Hanna v. Ontario (Attorney General) came from Ian Hanna, a Prince Edward County resident who argued the government failed to com- ply with the precautionary he province recently celebrated a victory in a crucial Divisional Court principle when devising the renewable energy approvals regulation that came into ef- fect in October 2009. Th at principle, found in s. 11 of the Environmental Bill of Rights, states that the Ministry of the Environment must use a "pre- cautionary science-based ap- proach in its decision making to protect human health and the environment." Hanna off ered evidence from three medical doctors who said the ministry's back- ing of a 550-metre setback for industrial wind turbines from a residence was unsupported Henderson Structured Settlements: Your Partners in Service® by scientifi c evidence. "Th e gist of their opin- ion evidence is that there is medical uncertainty about the impact on human health of living in proximity to an industrial wind turbine and that the 'precautionary prin- ciple' mandates resolution of this scientifi c issue before setting regulatory standards," wrote Justice David Aston on behalf of the panel that also included Associate Chief Jus- tice Douglas Cunningham and Justice John Jennings. As the panel noted, "Th e health concerns for persons living in proximity to wind turbines cannot be denigrated but they do not trump all other considerations." It went on to explain that any Ontario resi- dent has the right to challenge the approval of an industrial wind turbine at the Environ- mental Review Tribunal. "Th us, if the tribunal is per- No Cost /Obligation Services www.henderson.ca | 1.800.263.8537 suaded by evidence that the 550-metre minimum setback is inadequate to protect human health from serious harm, the tribunal has authority to revoke the decision of the director, or at the request of the applicant increase the minimum setback prescribed for the proposed wind turbines," wrote Aston. Th e panel noted the gov- Proud Sponsor of ernment undertook full public consultation before announc- ing the setback requirement. Th e review included scientifi c evidence, such as World Health Organization reports and the views of acoustical engineering experts. "In the context of the broad policy issues at play, the ntitled-11 1 Canadian Lawyer's 2011 9/21/10 2:45:22 PM LegaL Fees suRvey Fill out our short survey for a chance to win a Kobo e-reader & matching Roots leather cover at most requested survey takes just minutes to complete, , and will provide valuable information about what the nation's lawyers are charging for many common transactions and legal services. Survey closes April 15 Gillespie, who represents the appellant in that matter, noted that as the Divisional Court didn't issue fi ndings on a motion from the attorney general to dismiss evidence, he suggests all of the information in Hanna will also be available to the tribunal. In addition, Gillespie says the attorney general's primary position was that the regula- tion and statement of environ- mental values weren't justicia- ble issues but notes the court did review those matters. "Th is appears to indicate The decision shows the statement of environmental values is reviewable by the courts, says Eric Gillespie. alternative protections provid- ed by the Environmental Re- view Tribunal and the absence of clear evidence the 550-metre setback requirement is neces- sarily insuffi cient, we fi nd that the minister did comply with the requirement in s. 11 of the [Environmental Bill of Rights], notwithstanding the 'precau- tionary principle' in the state- ment of environmental values," the panel concluded. Hanna's that the statement of envi- ronmental values is legally binding on the minister and reviewable by the courts," says Gillespie. Torys LLP's John Terry, who represented the Cana- dian Wind Energy Associa- tion in Hanna, notes a rul- ing against the province would have put the regulatory frame- work in question. "Th e path that the court lawyer, Eric Gillespie of Cunningham & Gillespie LLP, says the outcome was clearly not what his client, who's now seeking leave to ap- peal from the Ontario Court of Appeal, was looking for. "Th e standard of proof and adequacy of evidence submitted by the minister of the environ- ment is the issue," said Gillespie in a prepared statement announc- ing the application for leave. Despite the application, Gillespie believes there are posi- tive aspects to the Divisional Court decision. He tells Law Times the 550-metre setback re- quirement remains a "complete- ly open question" for the review tribunal to decide. It's currently hearing an appeal over a Class 4 wind facility in the township of Camden in the municipality of Chatham-Kent. took in their decision is con- sistent with what we thought the court should have taken," he says. "Th e importance of the decision is really in reiterat- ing that the policy and various regulations for the regulation of wind energy in Ontario in the building of wind turbines is consistent with appropriate standards being adopted with respect to health, environment, et cetera." In the meantime, the tribu- nal is expected to fi nish hear- ing submissions in the Camden wind project matter in early April. It must provide its deci- sion no later than May 29, says Gillespie. Robert Hornung, president of the wind association, says his organization is following those proceedings closely. "It is something that we're monitoring, and we'll see where the decision comes forward," he says. "At the end of the day, we remain quite confi dent that the balance of scientifi c and medical evidence clearly indicates that there's no link between wind tur- bines and human health." March 28, 2011 • Law TiMes Untitled-2 1 www.lawtimesnews.com 10/8/10 9:59:52 AM It's back www.canadianlawyermag.com/surveys Canadian Lawyer's

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