CCSAGE NATURALLY GREEN

Court File No.: 15-2162

Mayor Higgins Hearing of My Motion

October 21 2016

My motion to intervene in this case is based on my following justification.

The rules for a move to leave to intervene are based on the following.
A person who is not a party to a proceeding may move for leave to intervene
as an added party if the person claims,
(a) an interest in the subject matter of the proceeding;
(b) that the person may be adversely affected by a judgment in the
proceeding; or
(c) that there exists between the person and one or more of the parties to the
proceeding a question of law or fact in common with one or more of the
questions in issue in the proceeding.
My following remarks are intended to justify my application to intervene.
Although there have been no renewable energy approvals (REA) in North
Frontenac as of today, North Frontenac has been exposed to the process and
there is the potential for future engagement of this process through future
applications for large renewable energy project proposals.
The connection between our Township and that of Prince Edward County is
that we all go through the same process when Proponents apply for LRPs.
There are currently now113 other known municipalities who have
experienced the similar issues when it comes to dealing with this process. My
intervention application is not related to this specific REA but is about the
exclusion of municipal government from being able to be involved in the
process of green energy implementation which is our democratic right and
responsibility.
Our key interest in this matter is related to the applicant who is seeking to
challenge the constitutionality of statutory and regulated provisions. If
approved as an intervenor I will provide arguments that the Green Energy Act

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is unconstitutional as per the Charter of Rights and Freedom which I will

elude to here today.
As the Mayor of a municipality threatened with the installation of IWT
projects against the objections of the Township, and without regard for the
interests of the community or the impact on its local economy, I Mayor
Higgins, on behalf of the Township, has an interest in this proceeding in that:
(a) the subject matter of the proceeding includes the constitutionality and
institutional bias of the statutes and regulations that allow such
installations;
(b) I, Mayor Higgins, may be adversely affected in the conduct of my office by
a finding that the statutes and regulations are constitutional and
unbiased;
(c) there exists between Mayor Higgins and the Respondents a question of
law concerning the constitutionality and institutional bias of the statutes
and regulations at issue in this proceeding
As an intervenor in this matter I will bring to the proceeding the particular
concerns of municipalities unwilling to accept IWT installations because of
incompatibility with the Official Plan, its landscape, infrastructure, natural
environment, local economy and sources of revenue and the expertise of a
municipal official charged with the well-being of its residents. These
incompatibilities are a result of the content of the Green Energy Act which by
its nature overrides official plans, zoning bylaws, municipal development
approvals process and more importantly removes Municipal Government
from the democratic process.
As per North Frontenacs Council resolution I have been appointed to apply to
the Divisional Court in Ottawa as an Intervenor on the constitution question
using the Mayor's position paper. In a subsequent resolution Council
approved that the Mayor shall represent Council and the Township of North
Frontenac as an intervenor. These two resolutions have been provided in my
application.

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The following questions are relevant factors to consider when determining

whether to grant intervener status. My answers to these questions provide the
relevancy of my request to intervene.
1. Will the intervener be directly affected by the appeal;
a. Yes. If the courts rule in favour with the respondent in this matter
it will allow the current application of the Green Energy Act to
continue to be implemented in manner that will continue to
remove one level of government in the democratic process. In our
democracy we have three levels of government to ensure a
democratic process is adhered to. That being the Federal,
Provincial and Municipal governments
2. Is the presence of the intervener necessary for the court to properly
decide the matter;
a. Yes. If allowed to intervene I will bring to the hearings our
Townships perspective and experience in dealing with
Proponents, Provincial Government and other bodies from the
viewpoint of a Township that addressed this issue which resulted
in no REA granted for our Township. I believe this is important in
that the courts will hear from the applicant in this case who have
had a Proponent receive an REA. By being allowed to intervene
we can provide our experience and conclusions based on a
municipality that did not have a Proponent receive an REA. I
believe that by doing so provides two situations and provides a
balanced approach for the Court to use in its decision making in
the case.
3. Might the interveners interest in the proceedings not be fully protected
by the parties;
a. Possibly
4. Will the interveners submission be useful and different or bring
particular expertise to the subject matter of the appeal;
a. Yes. It will be useful, if allowed to intervene I will bring to the
hearings our Municipalities perspective and experience in dealing
with Proponents, Provincial Government and other bodies
involved in the promotion and implementation of an industry that
does not comply with our official plans and zoning bylaws. In the
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hearing I plan to present evidence that shows that the Provincial

government failed to communicate and/or collaborate with our
Township for their plans to develop an Industrial Wind Turbine
generation facility nor did they agree to meet to discuss a solution
that would meet all our needs.
b. It will be different because our Municipality has not yet been
awarded an REA. As a result I can provide a perspective unlike
any other that has come before the courts to date. The perspective
that I intend to submit will outline concerns with the intent to
avoid future litigations and/or tribunals such a Prince Edward
County and others have to engage. My perspective will be to try
and convince the court that if a democratic approach is utilized as
per our constitution, then the costs and workload of the courts
would be reduced and municipal governments will be assured of
their position in a democratic society. Removal of the Green
Energy Act is to me the only way restore democracy in Ontario
related to this issue.
c. It will also be different in that the applicant is presenting a case
that rural municipalities are being treated different than urban
municipalities. I do not intend to duplicate that position but rather
present a different perspective that questions the
constitutionality of the Green Energy Act as it relates to the
democratic process of governance.
d. I do bring particular expertise to the subject matter of the appeal.
As mayor I have dealt with this issue hands on and as a result I
can provide expert arguments from a Head of Council perspective
and how the Green Energy Act has prevented, and continues to
prevent, me from being able to carry out my duties as an elected
official that our residents elected me to do.
5. Will the intervention unduly delay the proceedings;
a. No

6. Will there possibly be prejudice to the parties if intervention is granted;

a. No
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7. Will intervention widen the lis between the parties; and

a. No
8. Will the intervention transform the court into a political arena?
a. No
As per my affidavit I have provided evidence in my position paper that I wrote
in March of 2015 that clearly shows there was no engagement by the
Provincial government in relation to municipal engagement by the Province
when there were plans to implement renewable energy (RE) in our
municipality as required by differing acts and the Premiers mandates. This in
itself removed our municipality from the democratic process. The first we
heard about RE being planned for our municipality was when the Proponent
approached us about their intent to establish two wind farm projects in our
Township.
As part of the process a Proponent has to meet Mandatory requirements and
Point rated requirements. The point rated requirements in this proposal were;
Municipal Support Resolution from Council
Community Benefits Agreement
$1,750 per installed MW of generating capacity ($175,000/year
for 100 MW)
$1,750 per kilometer of transmission line installed in municipal
rights of way
Road Use Agreement
Outlines the projects responsibilities regarding road maintenance
and upgrades.
From a sustainable land use perspective, environmental protection of our
natural resources and our strategic and economic development plan
perspective the following was not addressed during our discussions.
1.
2.
3.
4.
5.

Road infrastructure
Deforestation
Scenic beauty
Wildlife
Potential for wind turbine fires

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6.
7.
8.
9.

Devaluation of property (which has already started)

Decommissioning of turbines after life expectancy
The wishes of all our residents
Our strategic vision or our direction/intent for economic development
and resident attraction.
10. Impact to our Dark Sky Preserve
The above are the minimal requirements that we use to assess proposed
projects in our Municipality. We have an application process that ensure due
diligence and adequate studies and reports are in place to assist in the
decision making process. The Green Energy Act overrides not just our official
plan and zoning bylaw but also removes our ability to properly assess a
project before approval. In the case of the REA proponents are granted
approval before these studies are completed. I understand these approvals are
conditional on some studies being completed but not all requirements of a
specific municipality are considered. As the Green Energy Act overrides
municipal processes to ensure control and protection of our municipalities, it
causes municipalities to have to bring their issues to the courts such as we are
seeing here today.
From the perspective of municipal support I was taken aback by the
community benefits agreement being proposed. The Proponent offered us a
fund if we provided them with a letter of support. When asked if the fund
would still be available if we did not support the answer was, no it would not
be available. My interpretation of this response is that it is an outright bribe of
government officials to try and increase their points. We were firm in our final
decision in that we would not provide municipal support as it would go
against the wishes of residents. Other municipalities did not take this stance
as they felt they were forced into the possibility of the wind turbines going
into their Townships as the GEA overrides any municipal plans and bylaws so
they took the benefits agreement.
Our road infrastructure is not suitable to large heavy equipment that was
being proposed. The equipment would have destroyed our roads. In addition
the size of new roads and their close proximity to rivers, lakes and wetlands
we felt it could have a negative effect on phosphorous runoff into our water
bodies, our environment and our wildlife.
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We were not offered any details on a road use agreement that would ensure
our interests were addressed and that there would be no cost to the
Township.
After our assessment of this proposal we felt that providing an agreement to
support before knowing key requirements did not make sense. The LRP
process is not the way you should be approving a development project. The
minimum requirements we see that need to be addressed before approval are;
Project Description Report including Description of Potential
Environmental Effects
Natural Heritage & Environmental Impact Study
Assessment of Species at Risk
Wetland Study
Construction Plan
Design & Operations Plan
Decommissioning Plan
The fact that the Province provides approvals before these are completed is
wrong. In fact some of the requirements we listed here are not a Provincial
requirement of the final go ahead for these projects. The fact that the
Provincial Government uses the Green Energy Act to forge ahead without
consideration of these and other criteria is not only wrong it is a recipe for
disaster.
In summary, I want to say that my application to intervene is to focus
primarily on the constitutional question as it relates to the removal of
municipal democratic rights. In the Charter of Rights and Freedoms it states
The Canadian Charter of Rights and Freedoms guarantees the rights and
freedoms set out in it, subject only to such reasonable limits prescribed by law
as can be demonstrably justified in a free and democratic society.

What is a democratic society?

Parliament of Canada - Democracy Defined

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The word democracy describes a political system. In a democratic country, all

eligible citizens have the right to participate, either directly or indirectly, in
making the decisions that affect them. Canadian citizens normally elect
someone to represent them in making decisions at the different levels of
government. This is called a representative democracy. Countries like
Canada, the United States of America and the United Kingdom all have
representative democracies
Source http://www.lop.parl.gc.ca/About/Parliament/Education/ourcountryourparli
ament/html_booklet/democracy-defined-e.html
The level of Canadian Government is Federal, Provincial and Municipal
Source http://discoveryportal.ontla.on.ca/en/about-parliament/howparliament-works/parliamentary-traditions/what-parliament/canadas-levels
Municipal Act
Purposes
Municipalities are created by the Province of Ontario to be responsible and
accountable governments with respect to matters within their jurisdiction and
each municipality is given powers and duties under this Act and many other
Acts for the purpose of providing good government with respect to those
matters. 2006, c. 32, Sched. A, s. 2.

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PART II
GENERAL MUNICIPAL POWERS
Scope of powers
9. (1) The powers of a municipality under this or any other Act shall be
interpreted broadly so as to confer broad authority on the municipality
to enable the municipality to govern its affairs as it considers
appropriate and to enhance the municipalitys ability to respond to
municipal issues. 2006, c. 32, Sched. A, s. 8.
As outlined in my factum my application to intervene it states;
As the Mayor of a municipality threatened with the installation of IWT
projects against the objections of the Township and without regard for the
interests of the community or the impact on its local economy, Mayor Higgins
has an interest in this proceeding in that:
(a) the subject matter of the proceeding includes the constitutionality and
institutional bias of the statutes and regulations that allow such
installations;
(b) Mayor Higgins may be adversely affected in the conduct of his office by a
finding that the statutes and regulations are constitutional and unbiased;
(c) there exists between Mayor Higgins and the Respondents a question of law
concerning the constitutionality and institutional bias of the statutes and
regulations at issue in this proceeding.

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