Nation Rise developers prevail in court; Minister was “unreasonable” in cancelling project

The construction seen at one of 29 turbine sites in North Stormont, photographed in the winter of 2019-2020. Zandbergen photo, Nation Valley News

BERWICK — Decried by opponents and celebrated by the developer, the Ontario Superior Court (Divisional Court) has reinstated Renewable Energy Approval (REA) for the 29-turbine Nation Rise Wind Farm in the Township of North Stormont, quashing the Environment minister’s abrupt cancellation of the 100-megawatt, $450-million project.

EDP Renewables Canada Ltd. (EDPR) had appealed the December 2018 decision by Ontario Environment, Parks and Conservation Minister Jeff Yurek revoking the project’s REA. The minister had cited protection of bat species in his surprise kiboshing of Nation Rise halfway through construction. Yurek’s decision followed an appeal to his office made by the local Concerned Citizens of North Stormont, led by Margaret and Tom Benke, after the group earlier failed to persuade an Environmental Review Tribunal to halt the project.

In yesterday’s decision reviving the development, the Court found the minister’s decision was “not reasonable and does not deserve deference. The decision does not meet requirements of transparency, justification, and intelligibility, as the minister has failed to adequately explain his decision.”

“This is a rare case in which the minister’s decision should be quashed and the decision of the ERT should be reinstated,” the Court concluded.

“The Province respects the decision of the Divisional Court” granting the application for judicial review, said Yurek’s press secretary, Andrew Buttigieg, “however, we are disappointed with the outcome. At this time, we are reviewing the decision and are carefully considering our next steps.”

“Everyone lost” with this decision, says Wind Concerns Ontario (WCO) in a Facebook comment. “The judges told the minister he had no authority to act, when he clearly stated his decision was based on a need to ‘exercise precaution’ where endangered wildlife is concerned.”

The decision, asserts the headline on WCO’s press release, “denies minister’s ability to protect Ontario environment.”

“I could only say that we are very disappointed,” remarked Margaret Benke, when asked for her reaction. The judgment, she asserted, “puts all of the responsibility for environmental protection in the province on the backs of local citizens who are often without the financial resources and expertise to deal with every concern.”
“We had opposed and appealed the wind project every step of the way, as a result of our serious concerns about the environment, including harm to both animal life and human health and safety,” Benke said. “This ruling leaves us feeling very vulnerable, when not even a minister has the ability to identify or rectify serious environmental concerns.  The process appears to be held in higher esteem than environmental protection.”
The Benkes intend to weigh their options before deciding on next steps.

In the meantime, EDPR says it’s “eager to recommence construction of the Nation Rise Wind Farm,” adding the project “will bring much needed jobs and investment to the community.” Yurek’s delay, the firm pointedly notes, “has resulted in unnecessary expenditures to-date, at a time when governments and businesses should be focused on reducing costs and restarting the economy.”

Recently arrived turbine parts at the Port of Johnstown (left) and an aerial photo of one of the turbine sites in North Stormont, taken in September 2019. Courtesy photos

The company touts the project as “a significant infrastructure investment for the local and provincial economy which is needed now more than ever and can be readily deployed.” EDPR also tallies more than 230 local construction jobs, 10 full-time local jobs “as numerous indirect jobs during operations. Additionally, the project will inject more than $45 million over 30 years into the local community through municipal taxes, a community benefit fund, charitable contributions and landowner payments.”

“EDP Renewables stands behind the benefits of the project and its commitments to the local community,” said Miguel Prado, EDP Renewables North America CEO. “We look forward to the Nation Rise Wind Farm stimulating the local economy in the Township of North Stormont, United Counties of SD&G and the Ottawa region.”

But the project has riven the community, with local opponents pressing a frustrated township council at every opportunity, while involved landowners keenly observe and occasionally speak out as well. The township officially counts itself an unwilling host to the provincially approved project, with all members of the current council having expressed their opposition at one point or another. Continued disagreement has centred on how accommodating the municipality should or shouldn’t be to the developers on those scant areas of jurisdiction still possessed by North Stormont: A recent bone of contention concerned a potential township bylaw compelling the installation of automated fire suppression systems on the turbines, a costly addition unplanned by the developer.

Councillor Roxane Villeneuve, a vocal project opponent, expressed confidence the province will appeal the court decision. “I fully expect that this decision will be appealed, and I think the concerned ratepayers are very informed and a progressive group, so I would expect they continue their good fight.”

Deputy Mayor Frank Landry said he was waiting for more details of the decision. “I have to be fair on both sides,” offered Landry, but adding he “would not be happy either” if a turbine was located directly behind his house. When told that Wind Concerns Ontario had described the decision as a loss for everyone, the deputy mayor replied, “To be honest with you, I fully agree, but at the same time … it’s provincial. Our legal advice [to council] is saying, stay away from it.”

Councillor Steve Densham described the court decision as “very disappointing. I feel particularly bad for Margaret and Tom Benke who have worked incredibly hard, and at risk to their own expense, to fight this battle on behalf of all of the Concerned Citizens.

“To think that a minister has no power to intervene on a decision made within their own ministry, that they feel is a bad decision, is scary,” added Densham. “How else can our government correct a bad decision if they cannot appeal to the Minister overseeing the process? I hope, should the Concerned Citizens choose to appeal the decision, that the final decision is made on merit and not on procedural momentum.”

The councillor also says he wishes the minister luck if the province itself goes ahead with an appeal.

Amid the COVID-19 pandemic, the key Court hearing in front of three justices took place virtually on Zoom and simultaneously broadcast on YouTube last month — reportedly the first-time ever an Ontario court proceeding was live-streamed on the Internet, according to the involved technology contractor.

The judgment is to be made publicly available in full at the Court’s website: https://www.ontariocourts.ca/scj/decisions/.

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