“Significant” Midland Painted Turtle habitat (as defined by the Ontario Ministry of Natural Resources and Forests, OMNRF) at the northern extent of their range went unidentified by OMNRF and developer throughout the REA process. Though not designated as an endangered species this nesting and loafing area, classified as protected habitat, has now been altered by the Bow Lake/Nodin Kitigan Windfarm construction and may serve to illustrate why species have become endangered under the management of the OMNRF.
The Environmental Review Tribunal (ERT) appeals against the Bow Lake/Nodin Kitagan Windfarm gave us a local perspective into the way Justice in this Province has turned turtle for the Green Energy Act (GEA). But the perversion of administrative law which claims “natural justice” as its guide has been a wide-spread green phenomenon.
In the US the Energy & Environmental Legal Institute issued a series of reports based on the examination of environmental policy pulled from public records and FOIA requests to State and Federal agencies, this extraction often requiring tenacious litigation. They have observed extensive “agency capture” in a system which almost defies description. In the words of Forbes contributor JV DeLong:
“It is far from the American ideal of the Rule of Law, and it makes particular mockery of the concept of Administrative Law as a body of doctrine that prevents agencies from running amok.”
While every premise of Ontario’s GEA is demonstrably false, the agencies know, or should know, there is no possible planet-saving public good in industrial wind. Here as well Freedom Of Information requests have become an essential of public scrutiny and bureaucratic avoidance and mockery is rampant.
Our own Wood Turtle FOI frustrations, under the Freedom of Information and Protection of Privacy Act (FIPPA), showed that the OMNRF now fights more fiercely to protect data about turtles than it does to protect the turtles themselves. The ongoing saga of Ostrander Point’s endangered Blandings Turtles recently and very publicly exposed the depths to which captured agencies will stoop. Pertinent information came to light not under disclosure but only through questioning of Canadian Herpetological Society Executive member and OMNR researcher, expert witness Joe Crowley. He admitted,
“I expressed significant concerns with the fact the roads, because they were open to the public, would have a relatively high risk of road mortality for Blanding’s Turtle, comparatively to the current risk now,”
In a press release Eric Gillespie, legal counsel for the Appellant asked
“How was this information concealed for so long?” explaining, “This case went through Tribunal hearings, then appeals up to the Court of Appeal. The government must immediately explain why critical information seems to have been hidden.”
The paper trail has yet to be produced, government rarely does “immediately”, but there has already been one delay requested so this could be like Hillary’s emails…
Justice Turned Turtle…
All of this makes the idea of getting at the very root of the poisonous greenery more and more appealing. Lawyer Alan Whiteley, acting for the County Coalition for Safe and Appropriate Green Energy (CCSAGE), considers the GEA an assault on fundamental rights and freedoms as well as environmental statutes expressly instituted to protect citizens from Government overreach. There is finally hope that the healthy young minds of 5 Osgoode Hall law students: Stephen Gray, Sabrina Molinari, Timon Sisic, Amanda Spitzig and Imelda Lo and their York University Professor Stepan Wood will succeed in “Fixing a bad law“.
Albert Engel, (partner at Fogler Rubinoff LLP) a Toronto lawyer who represents wind developers, finds excuses, justifies the unusually “high test”, or burden of proof, for ERT appellants and deflects responsibility saying
Mr. David Marston, former US attorney general, in his book entitled ‘Malice-Aforethought: How Lawyers Use Our Rules to Get Rich, Get Sex, Get Even, and Get Away Wth It’ refers to lawyers who turn a blind eye to a bad lawyer, play along and don’t buck the system, as “Unindicted Co-Conspirators”
There may be more than a few victims of the GEA in rural Ontario who are of the opinion that term should be applied to those who profit from a bad law.