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North America’s first tidal turbine was recently connected to the power grid in Nova Scotia. The turbine being tested as part of a proposed project that would eventually see turbines installed in the Bay of Fundy now provides tidal-powered energy to 500 homes in the province. As part of the test, a second turbine is slated to come online in February 2017. The project shows promise for the Nova Scotia’s burgeoning clean energy industry, but has also been challenged for its potential impacts upon marine life in the iconic Bay of Fundy.

In the months prior to the turbine coming online, a fisherman’s association (Association) sought a stay of the operation of the two test turbines placed while it pursued a judicial review of the decision authorizing their use.

The request was denied (Bay of Fundy Inshore Fisherman’s Association v Nova Scotia, 2016 NSSC 286).

The court found that the Association established that there was a serious issue to be tried. However, the Association had not established the operation of the turbines presented an immediate risk of irreparable harm.

The Court concluded that the Association failed to adduce evidence that the deployment of the turbines at this moment in time would result in harm occurring before the judicial review hearing and that the harm would persist after that. It found no evidence of environmental damage that would occur before the judicial review was disposed of and no evidence of either permanent or temporary environmental damage that would result from the study. The court further found no evidence of permanent harm from the lost opportunity to establish baseline data—that is, the opportunity to study the area in which the turbines would be in the water before their deployment.

The Association had also not established that the balance of convenience favoured granting the stay. In so deciding, the Court noted that the potential for environmental impacts in the Bay of Fundy went beyond any discussion of convenience; however, the matter at the centre of the stay proceeding involved a test site for which environmental safeguards had been put place and which could easily and quickly be removed if required.

The Association’s judicial review application will be heard next year.

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