Hanna will appeal

By Wind Concerns Ontario
Lawyers for Prince Edward County resident Ian Hanna said they will seek leave to appeal the recent Divisional Court decision in Mr. Hanna’s application for judicial review of provisions introduced by the Green Energy Act.

Ian Hanna is the person behind one of Ontario’s most important legal challenges to the Canadian Wind Industry. The challenge revolves around the lack of scientific evidence that the legislated 550 metre setback between industrial wind turbines and residences protects human health.

Mr. Hanna’s decision to seek leave to appeal is based on a fundamental concern, said Eric Gillespie, lawyer for Mr. Hanna.  “The standard of proof and adequacy of evidence submitted by the Minister of the Environment is the issue” Gillespie said.

The review of the evidence of the Minister of Environment show a complete absence of reports to the Minister from any medical experts.  Although the Minister included scientific references, no actual medical advice was sought and none was accepted. The Minister failed to show precaution or evidence that human health issues were assessed prior to the setbacks being established.
Conversely, as part of his application, Hanna filed evidence of medical doctors from Canada, the United States and England who identified numerous risks to human health when wind turbines are located too close to human habitation.

The Ian Hanna case has been a rallying cry for communities who believe that the process introduced by the Ontario government is broken. Mr. Hanna spoke at the Annual General Meeting of Wind Concerns Ontario March 19th at the University of Western Ontario to encourage concerned citizens to continue to strive for justice.

It is expected that the Ontario Court of Appeal will rule on the motion for leave to appeal later this year.
– Wind Concerns Ontario
http://windconcernsontario.wordpress.com/2011/03/18/legal-challenge-continues/
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Ian Hanna, in consultation with his lawyer Eric Gillespie, is considering whether to appeal last Thursday’s wind energy program ruling of the Divisional Court.

Hanna, of Prince Edward County, took the government to court focusing on the principles and process followed by the Ministry of the Environment in establishing 550-metre setbacks between the turbines and homes under the Green Energy Act.

The Ontario Divisional Court sided with the Attorney General in dismissing Hanna’s challenge.

The Court ruled the process followed by the ministry was acceptable.  The court did not rule on whether the setbacks are sufficient to protect human health; rather, it referenced the opportunity to appeal individual project approvals to an Environmental Review Tribunal (ERT) on grounds of serious harm to human health.

Gary Mooney, of the Concerned Citizens of Prince Edward County reports the first appeal to an ERT of a wind project approval is currently under way in Chatham-Kent (Suncor’s Kent Breeze project), with Eric Gillespie acting for the appellants.

Wind Concerns Ontario reports the following:

The Ontario Divisional Court released its decision today in the Ian Hanna judicial review, which challenged the 550m setback for industrial wind turbines established by the Minister of the Environment. The decision by the three-member panel was that the Minister of Environment complied with the process mandated by Section 11 of the Environmental Bill of Rights.

In doing so the panel did not accept the Attorney General’s argument that the decision was not reviewable by the courts.  Instead, the panel recognized that the decision could only be reviewed “if the Cabinet has failed to observe a condition precedent … or if the power is not exercised in accordance with the purpose of the legislation” and then proceeded to analyze the action of the Minister for compliance.

The court went on to state, that the minister was “cognizant of the possible health concerns” when he made his decision but also “knowing the adequacy of the minimum setback could be challenged in any particular case before a specialized tribunal.”  Here, the court was referring to the Environmental Review Tribunal, “which has the mandate to determine, on a case by case basis, whether a renewable energy approval would cause serious harm to human health.  Thus, if the Tribunal is persuaded by evidence that the 550 metre minimum setback is inadequate to protect human health from serious harm, the Tribunal has the authority to revoke the decision of the Director, or at the request of the applicant increase the minimum setback …”

“The court’s decision to proceed to rule on the Minister’s legislation is a major step as it appears to indicate that the Statement of Environmental Values (SEV) is in fact a condition precedent or otherwise legal binding on the Minister.  This is a significant outcome that will allow future reviews of a wide range of Ministerial decisions as the SEV’s apply to many Ministries.  More specifically regarding this case, the court has left the entire 550 metre setback issue as an open question to be decided by the ERT” said Eric Gillespie, whose firm is currently acting in an appeal before the ERT related to this issue in Chatham-Kent.

“This is not the outcome we had hoped for” said Ian Hanna but at the same time he respects the court’s decision.  However, he is also concerned that it does not appear to address a central point raised by the application.   “Where is the evidence that the Minister of Environment consulted persons with medical expertise?”

Today’s decision will be carefully reviewed as there is the option to seek leave to appeal within 15 days of the decision.