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Council defers agreement with turbine developer to digest new information

Mayor Robert Quaiff received thunderous applause and a standing ovation from the public in the chamber gallery.

Mayor Robert Quaiff received thunderous applause and a standing ovation from the public in the chamber gallery.

Prince Edward County council has deferred its decision on a Road Users Agreement (RUA) with industrial wind turbine developer White Pines, wpd Canada, to its April 26 council meeting.

The decision was made before a packed gallery at Tuesday’s Committee of the Whole meeting to allow time for councillors to digest new information from Mayor Robert Quaiff and review details from the agreement they have not seen.

The deferral motion, made by councillor Steve Ferguson, and seconded by the mayor, also allows legal council and senior staff to provide text changes within the proposed agreement.

mayor-quaiff-full-galleryCouncillors want legal council to investigate research the mayor completed with a friend on FIT (Feed-in-tariff) dates and extensions that they feel, because milestone dates to be operational have not been reached, could show wpd and the other south shore project by Gilead Power “are so close to having their contracts cancelled.”

Using numerous dates in his report, Quaiff believes wpd would have until June 2016 to be complete and connected to the grid.

“Bottom line is I think that the terms of the FIT contract creates an opportunity to fight this project on a new level,” said Quaiff, noting he will give a copy to the County’s solicitor to investigate the findings.

“The Auditor General has stated that FIT contracts like the one for White Pines cost double what is being paid in other juridictions. My reading of the FIT contract suggests that the performance of wind is bad, and the opposition of the local group has been so effective that it has created an opportunity for the OPA (Ontario Power Authority) to get out of the contract with very little exposure to legal costs. It is not as if the province needs the generating capacity at this time,” said Quaiff.

Quaiff spoke briefly of his work since joining council to fight turbines in the County, of meetings with local politicians and broken promises of meetings from the province. “Everything combined has such a distasteful distrust with me. I don’t trust the Green Energy Act and I don’t trust that the RUA will not be used in their favour.” His comments sparked thunderous applause and a standing ovation from the gallery.

A Community Benefits Agreement was also on the agenda until it was withdrawn last week by wpd Canada president Ian MacRae after reading several press reports “so that council can focus their deliberations on the road use agreement which is the time sensitive matter.”

Earlier in the meeting, Quaiff officially withdrew his “bribe and blood money” comments made in a letter to fellow councillors, and shared by local news media before last week’s meeting was cancelled due to freezing rain.

“I realize that those comments are not correct,” said Quaiff. “But my opposition nonetheless, remains and I continue to believe that industrial wind turbines should not be allowed in municipalities that are not willing hosts and especially here in Prince Edward County.”

Wayne Fairbrother, the County’s solicitor, told council and the full gallery of mostly opponents to turbines on the County’s south shore, why the issue is before council today, while Environmental Tribunal hearings and appeals are still under way.

“The genesis of the RUA is found in the municipal comments submitted before the Renewable Energy Approval (REA), was granted. The municipality wanted to have a say, in that if this was to be approved, we wanted to have a say in how our roads are used and how the taxpayers of this county would be protected. The (MOE) director issuing the REA did not grant to the county that request, but rather, gave wpd six months to use its best efforts to come into an agreement with this county.

“The answer to why today is the six months expired in February. All that wpd has to do now is to go to the (MOE) director and say Condition N said we were to use our best efforts to enter into an agreement with the County; we’ve done that, we’ve negotiated an agreement that wpd could live with. If it’s council’s position to deny it, the could go back and say ‘we can’t achieve anything further, please give us our check mark’. We did use our best efforts.”

A deferral, he said would allow wpd to do the same thing, but later in the meeting noted a deferral that relates to the workings of the proposed agreement, he believes should be acceptable to wpd.

“It seems clear they have timelines from a corporate nature that we have no right to object to,” said Fairbrother.

An Environmental Review Tribunal appeal was upheld February 26, ruling the 27-turbine development would cause serious and irreversible damage to Blanding’s Turtles and Little Brown Bats. Future, not yet announced, mitigation hearings are to be held.

“The RUA agreement has nothing to do with the ERT or any outstanding approvals,” said Fairbrother, to groans from the gallery. “It is a document negotiated at the request of the County for the protection of its ratepayers in terms of a tax base.”

“Regardless of which side of the issue you are on, the process of the Green Energy Act pretty much strips the municipalities bare of any legal rights to say no, or to slow the process down,” said Fairbrother.

The other consequence, he said, was that in November wpd applied to the Ontario Energy Board (OEB) saying we need one final permission from you to put our distribution lines along the road network. It’s really important to know that Section 41 of the Electricity Act says wpd can make its application and doesn’t need the consent of the County.

“The OEB has given previous approvals to wpd and other energy providers over the strong objections of the County,” he said. “There’s no reason to suspect they won’t do exactly the same thing here.

“If the RUA is deferred or if it’s denied by council I fully expect that wpd will go to the OEB and get their approval and we will have no say and no protection. They will go back to the (MOE) director on Condition N saying we have used their best efforts and they’ll get their check mark, and the County, at the end of the day, and its ratepayers, will have no protection offered in the agreement… In the absence of that agreement, bluntly, the county gets nothing.”

“We need to defer and put pressure on the province to get rid of this crazy Green Energy Act,” said councillor Jim Dunlop, to applause from the gallery.

To more applause, councillor Dianne O’Brien said wpd was “bullying the County. We’re an unwilling host.”

All were in favour of motion, except councillor Jamie Forrester, of Athol.

“I’m hoping this doesn’t end up costing the County, and all of us, a whole lot of money in the end,” he said.

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  1. Sacha says:

    LET IT BE KNOWN . . . your civil rights have been violated. Your municipality has been rendered “persona non grata” . . . a totalitarian government is forcing its will on your community Prince Edward and your city cousins are the cause for voting in Wynnetario. When are you going to get sooooo MAD that will not take it any more? Or is Vaseline really the only alternative? Stand up and be counted with your Mayor and Council!

  2. Mark says:

    It seems to me that a reasonable Premier would come here, visit and see the County and meet local residents and politicians. Our concerns should be her concerns. I doubt that will happen however as we are Smith’s Tories in a Liberal province.

  3. Borys says:

    I found it a bit odd that County legal counsel Fairbrother’s initial position was that wpd would walk away if there were a deferral and later he stated that wpd would more than likely accept a deferral that Council members voted on.

    I do understand the Council’s deferral is until April 26 and not until the end of the ERT hearings.

  4. ADJ says:

    According to the recent article in the Intel it appears Mr.Whiteley and County legal counsel Fairbrother are in disagreement about signing the RUA. Personally I feel if the agreement is signed we are SELLING OUT! Mayor Quaiff has made a stand on this and I support him. We are not a willing host as stated months ago. We and other Counties in Ontario have stood together on this. Why would we even consider changing our stand? Does Fairbrother offer up any support for not signing the RUA? I’m waiting to hear what other Counties that are “unwilling hosts” will do.
    Are they in the same pickle?
    What was councillor Forrester reason for not voting for a defferral? Stick to your guns Councillors!

  5. Dennis Fox says:

    While I am no lawyer it appears to me that Mr. Whiteley’s comment is similar to that of Garth Manning’s(QC) – as he wrote in this week’s Times. As a resident and onlooker, I am left wondering why would our council even entertain the idea of signing anything – when we have the legal Tribunal decision on our side? No, signing anything (under protest or not) that would give this developer any angle to work is totally unnecessary and it would only complicate our position later. How can council take the position of being an “unwilling host” and yet sign on agreeing to it? What sometimes takes place is often outside the legal system and common sense – it is the political system. As we know, it is the latter that makes up the rules to satisfy themselves – they lack honour and are the people who have created this mess for us. Sign nothing and keep your position clear!

  6. Gary Mooney says:

    For those who don’t know, Alan Whiteley is the lawyer representing CCSAGE in its Judicial Review application against the Green Energy Act. This application cites various pieces of legislation, including the Charter of Rights and Freedoms. He has considerable experience in contract law.

    Regarding Alan’s comment that agreeing to cooperate means that the County becomes a willing host, I ask the question: Is it not possible that someone might accept the need to cooperate even if they disagree strongly with the project — especially if there is a situation involving duress? Also, can the implications associated with cooperation not be neutralized by including a statement indicating disagreement with the project?

  7. Fred says:

    If most everyone in this province stood up and marched upon Queens Park you would see change. But we are a soft lot here and tolerate wrongs! We really deserve what we get.

  8. Mark says:

    Good point. I welcome Gary Mooney to advise how such a restrictive law as the Green Energy Act can take away local decisions and pass that Charter test?

  9. Susan says:

    What truly surprises me is the fact that the Green Energy Act can meet the test of the Charter of Rights.

  10. Gary says:

    It’s ok Lou, the Province rigged it that way so municipalities have virtually no say. The only prayer is the “Turtle”! Perhaps slow and steady can win the race.

  11. lou says:

    ohh i see (too bad though)…..thanks Gary.

  12. Gary says:

    Because it doesn’t work that way. WPD just has to show they made their best effort to get an agreement.

  13. lou says:

    ok maybe im not getting this………..
    but

    if council, does not want to have WPD here
    then why cant they make policies etc in the road user agreement that make it near impossible for wpd to use the roads , cant procede.

    other municipalities have road bans or by laws, polices for weight restrictions for commericial and industry.

  14. Alan Whiteley says:

    Hidden away in the “Miscellaneous” section on page 18 of the WPD RUA is clause 23.6, which reads as follows:

    23.6 The County shall cooperate with other Public Authorities and with affiliates of or contractors retained by the Proponent that may require the approval of the County for any work associated with the Wind Project.

    In the first recital on page 1 ”Wind Project” is defined as 27 IWTs known as White Pines Wind Project.

    Thus, if PEC Council signs the RUA it automatically becomes a “Willing Host”.

  15. Dennis Fox says:

    The negotiations with wpd should not be driven by who pays for the lawyer or who pays for the road damage. Instead, like all development, it should be depended upon good planning principles being agreed to… in this case, the ERT has ruled against wpd – as far as council is concerned (or should be), wind development is not permitted – any violation to that decision and any damage committed by the company in defying the ERT ruling is held 100% their responsibility. In other words a RUA is not required at this time and council should not even be considering one until the ERT ruling is overturned by the Province. If this takes place, then this is where the political game playing must kick in. It is time for our council to start thinking a lot more deeply about their long term plan on how top fight this. The game is afoot! Right now wpd is playing us like a yo-yo. Not a good thing at all.

  16. Gary says:

    Follow the $$$$. It answers all.

  17. Jackie Soorsma says:

    Correct me if I am wrong, but, I think the County Lawyer Wayne Fairbrother said that the legal fees for these negotiations, regarding the RUA and the County, will not cost the County of Prince Edward anything, as the Wind Company WPD is paying for the legal costs. Does this sound right?

  18. Emily says:

    I think we all can agree on that.

  19. Borys says:

    Something does not seem to be adding up.
    The County should be wary and take its time before signing any agreement.
    As citizens, we must hope the Superior Court of Justice can direct Ontario back to some sense of order and decency.

    ‘something is rotten in the state of Denmark’

  20. Emily says:

    So you would suggest to do nothing and therefore allow WPD to do whatever with our municipal roads and any costs as a result being picked up by the ratepayer.

  21. Dennis Fox says:

    This situation of having the Road Users Agreement (RUA) coming forward at this time shows that council does not have control of their staff – including their lawyer. This matter should have and could have been dealt with quickly and quietly behind closed doors, with council telling wpd where shove the RUA – without all the public upset and another unnecessary meeting. The fact that it hasn’t been handled better only makes me wonder who is leading the charge on this – staff? lawyers? wpd? or a few of the out of control council members? If this is how council really wanted to handle this, then they have no concept of the politics at stake here. Like it or not, this is not just a legal exercise taking place – it has been from the beginning a political one with Queen’s Park. Despite our recent designation of being an ‘unwilling community” – Q.P. knows not even that is a unanimous decision within our council. A game is being played here and I support the mayor on this one -it is time for him to take control of this issue – and fast! Doesn’t a deferred decision imply that it will come back again to council for a decision – when it shouldn’t? There should be no negotiations about the RUA – period!

  22. Gary Mooney says:

    Regarding the relationship between the RUA and the ERT remedy hearing, I now believe that it is necessary for Mr. Fairbrother to reconsider the implications of signing the RUA as is.

  23. Bill Roberts says:

    I agree with you Gary.

  24. Gary Mooney says:

    The Committee of the Whole meeting was long and tense, but useful in getting everyone’s views out on the table. Here are my personal views (not those of CCSAGE).

    County staff and legal counsel (Wayne Fairbrother) have taken undeserved heat for negotiating a Roads Use Agreement (RUA). In fact, Council requested last December that this be done. And negotiation of a Community Benefits Agreement was initiated by Council, not wpd.

    I agree with Fairbrother that the County needs an RUA. Without it, the County will have no control over alterations to the roads being used, no certainty of reimbursement for damage caused, and will have potential liability for accidents resulting from the condition of the roads. I also accept his legal advice that signing an RUA does not prejudice our legal challenges.

    Councillor Hull got it right when he said that we need the RUA as an insurance policy against the possibility that all of the legal challenges fail. Without it, we will have nothing to protect us. Council has a fiduciary responsibility to find the best or, in this case, the least worst solution for taxpayers.

    Treat also made a good suggestion in recommending that the motion to approve include a statement to make it clear that the County is doing so under protest.

    Committee of the Whole voted for a short deferral, to April 26. This was entirely appropriate, to give some time for answers to questions by Members of Council about the wording of the draft agreement and, in particular, to update it to include a number of missing exhibits.

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