Canadian Lawyer InHouse

45 CANADIANLAWYERMAG.COM/INHOUSE SEPTEMBER 2015 transmission and storage issues. Green en- ergy is probably the most heavily subsidized in the world," says Gillespie. The industry organization for the wind sector in Canada agrees that it probably could have done a better job in responding to the criticisms in recent years. "That has been a lesson learned for the industry," says Brandy Giannetta, Ontario director of the Canadian Wind Energy Association. A new procurement process put in place by the province that requires community consultations when applying for an energy contract will help address concerns about public involvement, says Giannetta. The process should lead to contracts awarded later this year at prices about half of the ones already in place. The new process requires at least one community meeting when applying for an energy contract. It also includes the "Aboriginal Price Adder," which can permit a developer to increase prices by about 10 per cent if there is a First Nations stake in the project. The changes may potentially reduce the amount of litigation over wind projects, initiated by residents' groups, says Engel. "The hope is that the process will result in the awarding of contracts in locations where the developments are welcomed," he says. However, these changes are unlikely to impact disputes over potential threats to wildlife, even when the developers have taken steps to try to mitigate the impact of a wind project. In the Ostrander case, the company ob- tained an Endangered Species Act permit from the Ministry of Natural Resources. It permitted some harm to the turtles subject to certain conditions, which included set- ting aside a large area of land outside the project for a natural habitat. The permit also requires an "overall benefi t" to the spe- cies so it is better off in the province than before the project started. In the fi rst tribunal hearing, the panel focused only on the impact to the turtle on the project site and the surrounding land- scape in deciding there was serious and ir- reversible harm. The legislative framework involving wind energy projects "does not sit well with the Endangered Species Act," says Douglas Hamilton, who is representing Ostrander Point GP Inc. Obtaining a permit under the ESA "may potentially hurt you in front of the tribunal," says Hamilton, a partner at McCarthy Tetrault LLP in Toronto. In its ruling that sent the matter back to the tribunal, the Court of Appeal upheld the original decision that the project will cause serious and irreversible harm to the turtles. But it also permitted Ostrander to present fresh evidence at the new hearing and for the panel to address the issue of remedy. Hamilton says Ostrander is asking for the project to be approved, with conditions. The tribunal's ultimate decision could result in protections to the Blanding turtle far beyond that of a road sign on a heavily travelled route in one of Ontario's popular vacation destinations. IH I n d u s t r y S p o t l i g h t 2015 ONTARIO LAWYER'S PHONE BOOK With more than 1,400 pages of essential legal references, Ontario Lawyer's Phone Book is your best connection to legal services in Ontario. Subscribers can depend on the credibility, accuracy and currency of this directory year after year. 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(prices subject to change without notice) THE MOST COMPLETE DIRECTORY OF ONTARIO LAWYERS, LAW FIRMS, JUDGES AND COURTS Visit carswell.com or call 1.800.387.5164 for a 30-day no-risk evaluation CANADA LAW BOOK ® This text is the first of its kind – designed to provide a comprehensive introduction to the topic and analysis of different policy approaches to green energy. Directed towards environmental law practitioners and those involved in the development of green energy policies, its perspective is Canadian yet, as the international shift towards renewable energy intensifies, our role on the global stage is illuminated. Canadian Green Energy Law and Policy launches at a time when a thorough knowledge of the subject matter is critical. This book offers essential practical guidance on the issues involved in getting these projects organized, approved and built, providing you with a comprehensive overview of the legal and policy frameworks involved – providing context from both sides of the inherent arguments. NEW PUBLICATION CANADIAN GREEN ENERGY LAW AND POLICY FRED D. CASS SPEARHEADING RESPONSIBLE ENERGY POLICY DEVELOPMENT ORDER # 804528 $120 Hardcover approx. 425 pages March 2012 978-0-88804-528-7 AVAILABLE RISK-FREE FOR 30 DAYS Order online at www.carswell.com Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 Shipping and handling are extra. Price subject to change without notice and subject to applicable taxes.

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