Armow Wind appeal begins
with tribunal allowing evidence from post-turbine witnesses
By Liz Dadson
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The Environmental Review Tribunal hearing, into an appeal launched against the proposed Armow Wind facility in Kincardine, began with a bang Thursday morning in Kincardine.
Jeremy Glick, co-counsel for the director of the Ontario Ministry of the Environment (MOE), asked the tribunal to exclude evidence from a number of witnesses, participants and presenters, because it is irrelevant to the case, and beyond the scope of the tribunal.
Speaking before tribunal chairperson Maureen Carter-Whitney, and a small crowd of the public and the media, Glick said the post-turbine witnesses would present a "proliferation of collateral issues" that would mean a costly and lengthy process.
He stressed that the goal should be for a cost-effective and expeditious hearing, without any unnecessary complications.
"So, what evidence is relevant?" said Glick. "The evidence that is related to facts and issues, or establishes facts and issues. But any evidence that does not assist the tribunal in making a decision on (the appeal) under the Environmental Protection Act, should be excluded."
The witnesses that Glick said should be excluded, were listed in three categories:
Glick explained why each of those groups should be excluded, stressing again that their evidence is irrelevant to the hearing. He emphasized that none of the evidence from the post-turbine witnesses comes with documentation from a medical professional.
As for Pollard's evidence, it is simply based on the number of complaints she received about the Enbridge wind farm, also located in Kincardine, said Glick. Pollard cannot state if those complainants were actually suffering adverse health effects due to the turbines, so her evidence is hearsay.
Alexandria Pike, counsel for the approval holder, Samsung Pattern Armow Wind Ontario GP, noted the prejudicial effect that can result from assumptions based on the evidence that the MOE is asking be excluded.
"We have no diagnoses and no medical experts to weigh that evidence," she said. "It casts a pall on the proceedings without having the proper experts here. And yet, the witnesses are still eager to comment about the health impacts. The prejudice has already begun."
Pike added there is a perception that this hearing is an opportunity to air views with respect to health concerns from wind farms.
"That is not appropriate," she said. "That is not what this hearing is for. There has been a consultation period on this project during the REA approval process. There was ample opportunity for individuals from the community and beyond, to comment. And those comments are all part of the record."
Asha James, counsel for Ken and Sharon Kroeplin who launched the appeal Oct. 23, rejected the motion by the counsel for the MOE director.
She said comparing the post-turbine witnesses' evidence in this case to that of another appeal against industrial wind turbines, is not correct. And it does not make the evidence irrelevant.
James said two of these witnesses kept daily journals, documenting what was happening, as it happened, which is the same as medical doctors do when they diagnose a patient.
She said the tribunal should also be allowed to hear evidence from Pollard, Richard James and Palmer, and then determine the weight of that evidence.
Citing a Supreme Court malpractice case - Snell versus Farrell - Asha James said the appellant did not have to bring medical experts in to determine a causal link. And in this case, that will be determined by the tribunal.
Glick responded by saying the tribunal requires a medical diagnosis to determine if there is a link between wind turbines and health concerns; it cannot rely on the evidence in this case.
"Given the lack of expertise on the part of the tribunal, medical experts are necessary," he said.
James said in the malpractice case, expert evidence was required to determine a standard of medical care and whether it had been complied with. In this hearing, there is no concern about a standard of care.
The hearing adjourned for lunch, and upon reconvening, Carter-Whitney stated that the tribunal had decided to dismiss the motion by counsel for the MOE director.
However, the tribunal directs post-turbine witnesses and presenters to testify only on their personal experiences and not other people's; and comment on their situations but not on any conclusions related to cause and effect.
The afternoon session continued with the tribunal determining whether Palmer could be sworn in as an expert on public safety and acoustics, and hearing evidence from a number of participants and presenters.
The hearing continues Friday (Dec. 20), and then adjourns for the Christmas holidays, reconvening Jan. 6, 2014.
The Kroeplins' appeal is against the proposed Armow Wind Class 4 wind facility, a 92-turbine, 180-megawatt industrial wind farm in Kincardine. It received approval from the MOE director, through the REA process, Oct. 9.
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Thursday, December 19, 2013