The Environmental Review Tribunal has quashed an attempt by a municipality to bring a Charter challenge to Ontario’s wind energy approval rules. Undoubtedly, however, the same Charter challenge will be brought soon by one or more individuals.
In Municipality of North Middlesex v. Director, Ministry of the Environment, North Middlesex served a Notice of Constitutional Question shortly before the hearing of its appeal against the K2 wind farm. North Middlesex seeks to have struck down, as unconstitutional, the parts of the Environmental Protection Act that govern renewable energy approvals (for wind farms). They argue that the legal test in the Act, requiring opponents to prove the likelihood of harm to human health, breaches the s. 7 Charter rights of their residents:
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
Numerous appeals have been launched on the grounds that wind farms threaten human health. Every one of them has failed to meet the legal test for stopping a renewable energy project. That is why wind opponents now want to change the test.
The Tribunal gave several reasons for quashing the motion, including the fact that it was brought too late:
… if the circumstances become known earlier than 15 days before a hearing (which will almost always be the case), the notice must be served when those circumstances became known, unless otherwise ordered by the Tribunal.
In addition, no corporation can assert a s.7 Charter right; such rights belong only to human beings:
[47] An appellant who is an individual human being could raise a s. 7 Charter claim relating to human health in an environmental context. Human health and security of the person can be adversely affected by environmental factors such as pollution, and there is no general reason to bar an individual from raising a s. 7 “security of the person”
claim based on adverse impacts resulting from a change to the natural environment. … the Tribunal can hear questions of law, including constitutional questions that relate to litigants and matters within its jurisdiction …
[48] … it is clear to the Tribunal that the Municipality, as a municipal corporation, cannot pursue a s. 7 claim in
its own right …
The clear answer is that the Tribunal cannot consider the Municipality’s claim that s. 47.5 and 142.1 of the EPA allow for the violation of the Municipality’s s. 7 rights because the Municipality has no such rights. …
Finally, there was no reason to allow the municipality to speak for individuals who do have Charter rights; they will do so themselves, sooner or later:
[62] In order for the Municipality itself to proceed with a s.7 claim, it would need two things to occur at this late date (keeping in mind that the hearing of the human health aspect of the appeals is commencing in less than one month and much of the written evidence has already been served and filed): (1) permission to amend the constitutional question on p. 1 of the Notice to assert a violation of individual s. 7 rights, and (2) permission, through a grant of public interest standing or some other exercise of Tribunal discretion, to raise a s. 7 claim on behalf of others …
[67] In considering the third public interest standing factor, the Tribunal does not need to make an abstract guess as to whether an individual person with standing to raise a s. 7 Charter claim directly is likely to do so in the context of a REA appeal. Individuals appeal REAs to the Tribunal regularly. Even if the K2 project is not approved, then it is likely that another individual will bring a s. 7 claim in a notice of appeal of another project. The Tribunal therefore finds, in the unique circumstances of this case, that the Municipality is not well positioned to advance a s. 7 claim in relation to individual s. 7 rights under public interest standing criteria or any other source of discretion that may apply.