Ontario’s ERT (Environmental Review Tribunal), last stop in access to justice for communities facing wind factories, is a KANGAROO COURT, say appellants.
October 18 2013
“With nine of her 11 witnesses barred from testifying, or whose testimony would be severely restricted, “It’s dead. This hearing is dead,” she said as she pondered her next steps.”
Smothered in motions, turbine fighter Esther Wrightman bravely countered a battery of lawyers for MOE and turbine developer, NextEra, in London this week. With The Environmental Tribunal disqualifying 9 out of 11 witnesses, and withholding reasons because it would take too much time to explain, it appeared that Ontario’s last avenue for justice and possible turbine reversal is only a Kangaroo Court.
Prominent Chicago Appraiser, Mike McCann said: “This is a first for me. I have testified at well over 100 hearings, trials, depositions, committees, etc., and have never been barred (or failed to qualify) not even one time. Denial of the right to present expert testimony is improper and disturbing on many levels, not the last of which is the deviation from fundamental principles of democracy.”
The short history of the Environmental Review Tribunal in Ontario is fraught with frustration for anti-wind groups. Over several years, over 16 separate appeals have been launched, and to date only one, an environmental appeal led by Eric Gillespie, LLB, has proven successful. There are also currently several high profile ERT applications in place under the guidance of several lawyers, and of note Constitutional Challenges by Toronto lawyer, Julian Falconer.
But the current Adelaide ERT filed by applicant Esther Wrightman against the Adelaide project, highlights the most egregious denials of justice with the shocking failure to admit nine of eleven witnesses. International commentary on the daily reports of the ERT proceedings has registered shock and dismay, said Sherri Lange, of NA-PAW (North American Platform Against Wind Power). Adds Wrightman, “This (the ERT) is the most serious example of a kangaroo court ever witnessed in Ontario. There is no respect for the actual lives of the people in front of this Tribunal. There is every sense that the boxes of motions and the legal arguments given are to confuse, to intimidate and to delay the truth. The sheer volume of dismissed experts is a suppression of reason and truth.”
Only one of Ms. Wrightman’s 11 witnesses was approved as an “expert” (Engineer Bill Palmer), leaving the silences from ground-breaking researched and medical personnel such as Dr. Sarah Laurie from AU, and Dr. Nina Pierpont from the USA, as poignant reminders of what evidence is clearly being buried. Clearly any evidence on such complex and enduring impacts on community health, environment and economics, must be easily accessed, presented. Expert testimony from Mike McMann, a property appraiser from Chicago, was also not permissible.
Other serious affronts to justice, members of anti-wind groups point out, are apparent conflict of interest issues with the Tribunal itself. Paul Muldoon, an environmental lawyer, who is Vice Chair at this ERT appeal in London, should be impeccable with impartiality. However, as pointed out by writer Parker Gallant this past week, looking at the tribunal adjudicators shows that at least one and maybe four might not show “aptitude for impartial adjudication.”
One of the questions put to the adjudicators to address suitability and impartiality is this question under a “conflict of Interest Disclosure Statement”: “Have you been involved in any issue or controversy in the past, or that may be subject to public review in the future, in which the government may have an interest?”
Mr. Muldoon’s possible lack of clear and visible impartiality may be seen in a letter from CELA (Canadian Environmental Law Association), sent to then Premier McGuinty: Lobbying of the McGuinty government is unmistakeable. “Energy efficiency programs and renewable energy are cheap, clean, and safe ways to secure Canada’s energy future.” And, “We look forward to working with your government on appropriate energy solutions for Ontario.” (November 4, 2003)
Anti-wind groups have no alternative but to continue expensive and numbing ERT experiences, as this quasi judicious body is the first layer before higher courts may be engaged. Also problematic is the ultimate costs to communities for endurance not only of preordained conclusions from a mockery of a court, but also the penultimate cost of the life time of a project, which may be up to 20-25 years. Some residents will be financially reduced, some bankrupted, some, possibly many, will experience ill health. Landscapes will be and have been gouged, and beyond recovery for generations.
Wrightman spoke with us last evening from her home. “The way I look at it, pretty much for me the rural resident with no legal background, working to the end with a pretty decent lineup of witnesses, I can’t help but feel that this is the only way out for the Ministry of the Environment (MOE), to stop the appeal from going forward because the most damaging evidence would absolutely appear.”
For more information please contact:
CEO, NA-PAW North American Platform Against Wind Power
Executive Director, Canada, Great Lakes Wind Truth