The Ontario Environmental Review Tribunal has rejected two more anti-wind appeals, Cham Shan Temple v. Director, Ministry of the Environment (13-140) and County of Lambton v. Director, Ministry of the Environment (14-065). Citing the Divisional Court decisions in Dixon v Director, the Tribunal upheld the renewable energy approvals granted by the Ministry of the Environment to the 10 MW wpd Sumac Ridge Wind Project and to the 100 MW Cedar Point Wind Project.
These cases again raised the well-worn grounds of appeal that the Tribunal and the Divisional Court have previously rejected:
- whether engaging in the Project in accordance with the REA will cause serious harm to human health (because of alleged effects of, e.g. noise or vibration or flicker); and
- whether the statutory harm test set out in EPA 142.1(3) and s. 145.2.1(2) infringes the right to security of the person under s. 7 of the Charter.
In addition, the County of Lambton argued that the wind farm would cause serious harm to human health by increasing the risk of vehicle collisions with electricity transmission infrastructure in or adjacent to County road allowances. Two poles would be unusually close to the travelled roadway, on a little used road, as requested by the property owners. The Tribunal found that “the risk of a collision with a pole will be very small along this stretch of roadway, amounting to “no material risk”.
Cham Sham Temple appellants argued that the wind farm would:
- cause serious and irreversible harm to:
- water features and water resources within and near the Oak Ridges Moraine;
- Species at Risk, including birds and butternut trees; and
- bird and wildlife habitats, including Savannah and Hedgerows; plus
- interfere with
- the freedom of religion of worshippers at the Buddhist Cham Shan Temple, 11.8 kilometres away, because pilgrims to the temple could pass less than a kilometre from the wind farm, and could be distracted from their devotions by a visible and audible structure, and
- the treaty rights of certain First Nations, contrary to s. 35 of the Constitution.
The Tribunal found that these objections had not been made out on the evidence. As to the freedom of religion claim:
“It is not the purpose of the EPA to prevent every change in the status quo so as to protect an idealized concept of a silent and beautiful environment, but rather to ensure that changes that are introduced are consistent with the “protection and conservation of the natural environment.” On a REA appeal, under the Environmental Test, the Tribunal’s scope is narrower, as it can only revoke or modify a REA if it the Appellants prove that the Project will cause “serious and irreversible harm” to the natural environment. The Tribunal has held in several cases that sound levels equivalent to those expected here do not cause “serious” harm to human health. On the evidence presented here, the Tribunal finds that building a large structure on land that is visible a kilometre or more away and adding a facility that is audible at the level of a loud whisper is not enough to constitute “serious” harm to the natural environment.
…In this case, the CST claims are subjective and selective about which distractions should be treated as violating freedom of religion and which should not. This is not consistent with the Supreme Court’s guidance in S.L.. The Tribunal finds that there is not sufficient objective evidence before it that demonstrates that the Project will cause more than a trivial or insubstantial interference with the CST’s pilgrimage. Thus, the Tribunal finds that the Project will not interfere with CST’s and its members’ right to practice their religion.”