Armow Wind hearing concludes with closing statements;
decision by April 23
By Liz Dadson
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Over a month after wrapping up testimony in the appeal against the Armow Wind Class 4 wind turbine development, the Environmental Review Tribunal was back in Kincardine Friday morning (Feb. 21), to hear closing statements by the parties and the participants.
Held at the Kincardine municipal administrative centre, the hearing opened with statements by Asha James, counsel for the appellants, Ken and Sharon Kropelin of Kincardine Township.
She argued that the Supreme Court of Canada and the Ontario Court of Appeal do not need proof of causation, with a medical professional. An inference can be made, without a diagnosis, she said.
The symptoms experienced by the post-turbine witnesses indicate that but for the turbines, they would not have suffered any adverse health effects.
With regard to the charter test, James said there is a probability that turbines cause harm to human health, which is why the Canadian government is spending money to research how turbines affect people's health.
"The appellants are asking the tribunal why the provincial government has enacted legislation (the Green Energy Act), knowing that wind turbines can cause adverse health effects," said James. "That is not complying with their charter rights."
She said the appellants are asking the tribunal to revoke the decision by the director of the Ontario Ministry of the Environment (MOE) because the Armow Wind project will cause harm to the appellants.
Bill Palmer, a participant and qualified noise and public safety expert, said he did his best to convince the tribunal that the Armow Wind project will affect human health, but it is impossible to prove this in advance of the project.
"If the setbacks (between residences and the turbines) do not protect people, then in all probability, the Armow Wind project will harm people," he said.
Jeremy Glick, counsel for the MOE director, said the evidence presented by the appellants and testimony from the post-turbine witnesses fail to meet the requirements for causation and charter rights, so the appeal should be dismissed.
He said the evidence and testimony is the same as previous appeals and all were dismissed.
Glick urged the tribunal to review the Ostrander decision, noting that the tribunal at that appeal did not rely on post-turbine witnesses to prove a threshold for causation of harm to human health from wind turbines.
"None of the testimony comes with a medical opinion from a medical professional," he said. "There is no reason for this tribunal to come to a different result in this case."
Glick said that medical experts are required to establish causation between wind turbines and adverse health effects. In this case, he said, evidence from medical experts on behalf of the MOE and the approval holder (Samsung Pattern Armow Wind Ontario GP), indicates that conditions attributed to wind turbines are common in society.
As for the appellants, the Kroeplins, Glick said their evidence cannot be relied upon because they don't know if the Armow Wind project will cause adverse health effects, since it has yet to be built. Therefore, no causation can be established, he said.
Glick said that the appellants' noise expert, Rick James, has also testified at previous appeals, and could not establish the fact that increased noise causes health effects.
"The evidence in this case does not prove wind turbines cause serious harm to human health, so the appeal should be dismissed," he said.
Daniel Huffaker, counsel for the MOE director, spoke to the constitutional question and said the evidence does not meet the statutory requirement for proof in this case either.
He said the charter challenge puts the onus on the appellant to prove increased harm to life, liberty and security of person.
Sarah Powell, counsel for the approval holder, said this appeal raises the same allegations as previous appeals, and has not proven that the Armow Wind project will cause serious harm to human health.
She said that the evidence by the MOE and the approval holder prove there is no reason to apply uncertainty to the Armow Wind project, given the regulations of the Renewal Energy Approval (REA) regime.
As to health issues, she said the medical professionals brought forward by the approval holder, state there is insufficient evidence to prove a causal link between wind turbines and adverse health effects.
"The appellants were trying to get around the requirement of proof by stating wind turbines cause annoyance, but they are still required to prove that annoyance causes adverse health effects," said Powell.
She urged the tribunal to dismiss the appeal and the charter challenge.
James countered that the medical experts for the approval holder stated there is no "scientific" cause, but a scientific cause is not the test.
She added that this tribunal is not bound by decisions made by previous tribunals.
As for medical experts, James said the appellants are not saying that the symptoms are indicative of a particular disease which would require a diagnosis. They are saying that the wind turbines are causing headaches, high blood pressure, ringing in the ears, etc.
"An inference can be drawn from the evidence of the post-turbine witnesses that the wind turbines caused adverse health effects," said James. "Their medical records will bear this out. There was no other reason for these symptoms to occur."
As to constitutional law, James said the approval holder has shown no evidence that this project will be any different than any other wind development.
She said the legislative framework in the REA process does not protect human health.
"The only recourse (for those living near wind turbines) is, if you have enough money you can move," said James. "If not, you have a life sentence."
Chairperson Maureen Carter-Whitney said the tribunal will render a decision by April 23.
The appeal, launched Oct. 23 by the Kroeplins, is against the proposed Armow Wind Class 4 wind facility, a 92-turbine, 180-megawatt industrial wind development in Kincardine. It was approved by the director of the MOE through the REA process, Oct. 9.
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Sunday, February 23, 2014