Fundy fishermen vow to continue legal challenge to tidal turbines

Colin Sproul

Colin Sproul

A spokesman for the Bay of Fundy Inshore Fisherman’s Association says the fishermen will press ahead with their legal challenge to tidal turbines in the Minas Passage in spite of yesterday’s loss in the first round of their court battle.

In a statement e-mailed to Warktimes, Colin Sproul says the association respects Mr. Justice Jamie Campbell’s decision to allow installation of turbines to go ahead this fall.

“But we are saddened that he failed to recognize the difference between irreparable harm to the entire Bay of Fundy and harm to the potential to gather baseline science at the FORCE site,” the statement says referring to the judge’s rejection of claims that deployment of the turbines could cause irreparable harm and prevent the gathering of more baseline data on marine life in the Minas Passage.

The association had asked the Nova Scotia Supreme Court judge to block turbine deployment until the fishermen return to court on February 1-2 to challenge the provincial environment minister’s decision to approve installation of two Cape Sharp turbines at the FORCE test site near Parrsboro. (Cape Sharp Tidal Inc. is a partnership between Emera, parent company of Nova Scotia Power and OpenHydro, now owned by a French company.)

“We may be robbed of the fruits of our legal action in February,” Sproul’s statement continues, “and the chance to gather accurate science in the undisturbed Minas Passage may be lost to all Nova Scotians.”

Sproul adds, however, that the association is happy the judge recognized that the fishermen’s case has merit “and that we have a legitimate complaint to be reviewed in February with respect to the minister’s decision being unreasonable.”

Uphill battle

Although Mr. Justice Campbell’s ruling did say that the fisherman’s association has a  serious argument to be made at the hearing in February, he also suggested that the environment minister’s decision to approve turbine deployment had been weighed carefully.

“There was nothing cavalier about the approach that was used,” his ruling says. “Scientists may differ on the proper approach to testing but this was not in any sense a rolling of the dice. There have been extensive studies. The deployment of the turbines with ongoing monitoring of their effects is part of the process of study and assessment.”

The fisherman’s association is arguing, in part, that the minister’s decision was unreasonable because she did not consider concerns about the potential effects of the turbines expressed by members of the public or by aboriginal people. The association contends that the Environment Act along with Environmental Assessment Regulations required Minister Margaret Miller to weigh such concerns before she approved turbine deployment last June.

However, lawyers for the province, Cape Sharp Tidal Inc. and FORCE, the non-profit corporation overseeing the test site in the Minas Passage, argued that those regulations applied only to initial approval of the overall tidal demonstration project in 2009 after an environmental assessment had been conducted. (In 2009, a smaller OpenHydro turbine was deployed at the site, but its blades were soon wrecked by the force of the tides.)

In yesterday’s ruling, Mr. Justice Campbell said he was not prejudging the issue, but did add that applying the regulations each time the minister makes an administrative decision like the one in June “could result in a process that would be difficult at best.”

He also noted that the case “pits the Association’s broad interpretation against a more plain reading of the statute and regulation.”

It would appear that the fisherman’s association will have an uphill battle ahead if the judge in February interprets the legal issues in a similar way.

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Judge denies fishermen’s request to block tidal turbines

N.S. Supreme Court judge Jamie Campbell

N.S. Supreme Court Judge Jamie Campbell

Cape Sharp Tidal Inc. is free to deploy two turbines this fall in the Minas Passage, near Parrsboro.

In a decision released today, a Nova Scotia Supreme Court judge rejected an application from the Bay of Fundy Inshore Fisherman’s Association asking him to keep the turbines out of the water until the fishermen can present their full case against them in February.

Mr. Justice Jamie Campbell says there’s no evidence the turbines would cause irreparable harm between now and then and therefore, there’s no reason to block their deployment.

Campbell notes that he weighed expert reports from Michael Dadswell and Trevor Avery, two scientists from Acadia University who oppose installation of the turbines until more baseline studies are conducted on marine life in the area.

“The reports of Dr. Dadswell and Dr. Avery do not indicate that over the period from October to February there would be significant damage to commercial fish stock that would impact the livelihood of the members of the [Fisherman’s] Association,” the ruling says.

The decision also states that the fisherman’s association “has not shown that the temporary installation of the turbines would prevent the determination of baseline data to be used in assessing environmental impacts.”

Serious concerns

“The concern about the environment in the Bay of Fundy has to be taken very seriously,” the judge says adding, “The potential implications of getting this wrong are massive. There are potentially catastrophic consequences.”

But he also suggests the provincial environment minister acted reasonably in June when she approved installation of the two turbines on the grounds that testing them would establish whether they have detrimental effects on the environment.

“Scientists may differ on the proper approach to testing but this was not in any sense a rolling of the dice,” the judge says.

“There have been extensive studies. The deployment of the turbines with ongoing monitoring of their effects is part of the process of study and assessment.”

Cape Sharp getting ready

A statement from Cape Sharp Tidal indicates the company is moving ahead with plans for deploying the turbines this fall:

“We’re glad to have this behind us and look forward to continuing our deployment plans,” the Cape Sharp statement says.

“A date has not been finalized, although final preparations are underway. We’ll be sure to communicate a timeline and details when those plans are firm.”

Both of the Cape Sharp turbines are now in the harbour at Saint John, N.B.

The Bay of Fundy Inshore Fisherman’s Association is scheduled to return to court on Feb. 1 and 2 to challenge the environment minister’s decision to approve installation of the two turbines.

To read today’s court decision click here.

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N.S. judge promises decision soon on whether to block tidal turbines

Fishermen Colin Sproule (L) and Chris Hudson

BOF fishermen reps Colin Sproul (L) and Chris Hudson are asking a judge to block turbines this fall.

A lawyer for the Bay of Fundy Inshore Fisherman’s Association spent several hours in a Halifax courtroom yesterday tilting at turbines.

David Coles was trying to persuade a skeptical Nova Scotia Supreme Court judge to temporarily block deployment of two, 1,000 tonne tidal turbines this fall.

That would give the fishermen time to return to court in February to challenge provincial permits allowing the turbines to be lowered into the Minas Passage near Parrsboro.

Cape Sharp Tidal Inc. could deploy its turbines as early as November 6th.

Coles argued that the tidal machines could cause “irreparable harm” to marine life in the Minas Basin including lobsters, fin fish, porpoises and white shark.

He said that installing the turbines now would prevent the gathering of accurate “baseline data” on the marine environment including information about the numbers and species of fish and marine mammals in the area where the turbines would be operating.

“My client is not opposed to the development of Fundy tidal power,” Coles said. “They are opposed to the rolling of the dice without a proper baseline to figure out the effects.”

But Mr. Justice Jamie Campbell kept asking for proof that deploying turbines this fall would cause irreparable harm and prevent the gathering of data if the fishermen are successful in getting the turbines removed as a result of their court challenge in February.

“I am desperately looking in these scientific reports to find that conclusion,” the judge said at one point.

Coles responded that once the turbines are in the water, they would alter the marine environment so much that the opportunity to gather accurate data on conditions before their deployment would be forever lost.

“There will never be an opportunity for an accurate baseline [measurement] once these turbines are installed,” Coles said.

Cape Sharp counterattack

Harvey Morrison, one of Cape Sharp’s lawyers, told the judge he should not overrule Nova Scotia’s environment minister who issued permits in June allowing installation of the two turbines.

Morrison said that even though an April scientific report from the federal department of fisheries identified gaps in baseline data, provincial and federal officials had concluded that the project posed minimal risk and that more information could be gathered after the two test turbines are in the water.

“The purpose of the demonstration turbines is to see if there will be harm,” Morrison said. “Turbines are not going to obliterate the eco-system overnight or even within 15-minutes.”

He argued that the turbines could be hauled out of the water within 12 hours if they were found to be damaging the eco-system.

Millions at stake

Although Cape Sharp Tidal says it has no firm dates for deployment, Doug Tupper, a lawyer for the company, suggested that another delay could jeopardize the multi-million dollar project and he urged the judge to make his decision “sooner rather than later.”

Outside the courtroom, Fisherman’s Association President Chris Hudson responded that deployment in November would come in the midst of this year’s lobster season.

“They’re complaining that they have a multi-million dollar setup that they have to deploy,” Hudson said. “Guess what, they’re going to deploy them not knowing what’s going to happen to the lobster stocks currently sitting on the bottom.”

Hudson added that fishermen have millions at stake too since the lobster industry is worth $100 million each year.

Association spokesman Colin Sproul added that the situation is urgent since both of the five-storey high turbines are now in the harbour at Saint John, N.B., ready for deployment.

Duelling experts

Dr. Graham Daborn

Dr. Graham Daborn

Meantime, the judge is being asked to weigh three reports from scientific experts associated with Acadia University.

Two from scientists Trevor Avery and Mike Dadswell support the fishermen’s argument that more studies must be done and more information gathered before the turbines are lowered into the Minas Passage. Otherwise, ocean life could suffer irreparable damage.

However, Graham Daborn, an ocean scientist with 40 years of experience, argues that the notion of an accurate set of baseline data in such a turbulent environment is a scientific illusion.

In an interview outside the courtroom, Daborn explained it’s an illusion because the Bay of Fundy has been changing continuously for 4,000 years.

“The tides are getting bigger; we have global warming which is affecting movements of fish around; we have long-term cycles, such as the 18-year cycle, which affect the populations and we have changes in the populations themselves that come from good reproductive years and bad reproductive years,” Daborn said.

“So, what constitutes a constant baseline? I don’t think there is one in the Bay of Fundy.”

Daborn said there’s also no evidence these relatively small turbines will damage marine life adding that studies at other tidal sites, for example, have not shown any direct impact on fish.

“There’s no evidence whatsoever that any of them ever got hit by a blade…or came into contact with it at all,” he said.

Click to listen to my six-minute interview with Graham Daborn:

To read previous stories, click here, here and here.

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Bitter questions surface about demolition of historic Sackville church as legal battle continues

Sackville's now-demolished United Church

Sackville’s now-demolished United Church

Sackville’s historic United Church may be gone, but the bitter feelings surrounding its demolition last year were apparent once again on Friday at the Moncton courthouse.

A half-dozen people, who fought unsuccessfully to save the church and its unique stained glass windows, came to the Court of Queen’s Bench to witness the latest chapter in the ongoing legal battle between former heritage board member Louis Béliveau and the Town of Sackville.

At yesterday’s hearing, Béliveau sought to appeal the $2,400 in disbursements he has been ordered to pay the town mainly to cover its photocopying costs.

The disbursements arose from a court decision last June in which a judge ruled that Sackville Town Council was within its rights to remove Béliveau from the heritage board in January. Aside from the disbursement fees, Judge George Rideout ordered Béliveau to pay an additional $9,000 to cover the town’s court costs.

Meredith Fisher

Meredith Fisher at Moncton’s Palais de Justice

Meredith Fisher, one of Béliveau’s supporters who attended yesterday’s hearing, says she’s appalled that an unpaid, volunteer member of the heritage board is now on the hook for more than $11,000 because he challenged town council’s decision to remove him from the board.

“It’s just an incredibly unbelievable, nonsensical situation for anyone who is a citizen of Sackville to find themselves in,” Fisher said, adding that it’s time for town council to stop spending thousands fighting Béliveau in court.

“There has been no attempt by the Town of Sackville to come to some kind of a sitting-down and talking together and rectifying this situation and coming to some kind of an agreement to stop this nonsense,” Fisher said.

On Friday, the judge decided she did not have jurisdiction to hear Béliveau’s challenge to the $2,400 in disbursement fees because the matter is now before the New Brunswick Court of Appeal in Fredericton where Béliveau has launched another challenge to his dismissal from the heritage board and the $9,000 in court costs he has been ordered to pay.

Court files sealed

Meantime, Béliveau says his latest appeal was hampered when the court clerk in Moncton refused to let him see court files from his earlier case on the grounds they had been sealed by a judge.

“In trying to avoid going to court any more than I have to, I wanted to know what I was fighting, so I wanted to look at the file in order to see what was going on and they wouldn’t show me the file,” Béliveau said.

He added that it’s outrageous, in a case like this, when a person can’t get access to his own court files, documents that are normally public.

Béliveau said he finally did get to see the files this week after they had been sent to the Court of Appeal in Fredericton.

When Warktimes called the Moncton courthouse a few weeks ago asking to see the files, we were also told that a judge had ordered them sealed.

Secret report

It appears that in denying public access to the files, court officials were reacting to complaints from the Town of Sackville. Town officials were apparently concerned that parts of a secret report contained in the court files had begun to appear on Facebook even after a judge had ruled that while Louis Béliveau could see the report, it must otherwise, for some reason, be kept confidential.

That confidential report was written by Moncton lawyer Kathleen Lordon who was hired by the town to investigate the circumstances surrounding the many controversies that arose in connection with demolishing the church.

After the heritage board finally decided to issue a demolition permit in March 2015, a citizen’s group fighting to save the church challenged that decision before New Brunswick’s Assessment and Planning Appeal Board (APAB).

Louis Béliveau testified during the APAB’s hearings alleging, among other things, that town council had interfered with the heritage board’s work.

Although it can’t be known for sure, since Lordon’s $47,000 report is still secret, it appears that it may have criticized Béliveau’s decision to testify at the APAB hearings, giving Sackville Town Council a reason for removing him from the heritage board.

[Editor’s note: Apologies for the vagueness of my reporting about the Lordon Report, but secrecy breeds confusion and I don’t know why the report is being withheld from public view.]

Heritage building

Meantime, Jean Cameron was also among those supporting Louis Béliveau at Friday’s hearing in Moncton.

In 2011, she conducted extensive research on the historic and architectural significance of the Sackville United Church to support an application asking the province to give the church “special provincial heritage place status” under the New Brunswick Conservation Act.

Cameron says she doesn’t know why the province failed to act, and wonders why the town itself did not intervene to save the church.

“If the town had put all the resources that it has spent on legal costs into saving and preserving that structure, the downtown of Sackville would today be totally different,” she said.

“Instead of two square, Lego-Box apartment buildings totally surrounded by pavement, you would continue to have a public green space in the heart of the town and a building with the steeple rising above the community that could have easily been re-purposed,” Cameron added sadly.

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Councillors idling on 506 drive-thru; more study, maybe?

robinsSackville Town Councillors voted Tuesday to delay decisions on a controversial coffee drive-thru at TransCanada highway exit 506 while they consider studying overall business development in the area.

The vote means that Wendy and Kelly Alder will have to wait at least another month to find out if council might eventually allow them to open a Robin’s Donuts drive-thru at their Tantramar Gas Bar near exit 506.

“It’s very frustrating,” an emotional Wendy Alder told council during the question period after Tuesday’s meeting. She added that the town had stopped buying fuel from her Ultramar switching to the Esso station instead.

“I just feel like everywhere we go in this town, you don’t want us to succeed,” she said.

“You don’t want to help us by buying fuel from us and now you won’t give us a drive-thru. It’s just one more thing. And you know what?  Normally, I’m pretty level-headed, but I’m pissed off.”

Legal hurdles

Although a majority of councillors appear to favour allowing a Robin’s drive-thru at exit 506, it became clear during Tuesday’s meeting that they feel caught in a maze of legal and zoning restrictions.

In July, when the Alders’ application first came before council, a majority voted against amending the town’s 15-year-old bylaw banning new drive-thrus.

Councillors said then they feared that changing the bylaw could open the way for more drive-thrus at exit 504 where the ones at McDonald’s and Tim Hortons already generate considerable traffic.

Now, under provincial law, council is unable to re-open the issue for a full year unless a proposed bylaw change is substantially different from the one in July.

“It’s the law,” Mayor John Higham said. “You cannot have the same question for another year, that’s the law. There’s not much more we can do about that, we can’t break the law.”

The mayor added that councillors have not yet reached a consensus on how to come up with a substantially different bylaw change partly because they don’t want to repeat mistakes made in the 1990s when the highway commercial zone at exit 504 was developed.

Great potential

Allison Butcher

Allison Butcher

Councillor Allison Butcher said that while she would love to see the Alders open a drive-thru, it’s important to plan carefully for development at exit 506.

“This whole process has really, for me, shown how under-developed exit 506 is,” she said adding that commercial development at exit 504 had proceeded too rapidly.

“There’s so many businesses up there,” she said, “and for years we had a lot of issues around traffic flow, there was so many safety concerns up there and it’s because it all happened like that.”

Coun. Butcher told Alder she feels that exit 506 has great potential and the town clearly needs more businesses and more jobs.

“So this is an opportunity for us to look at it and figure out a way to lay it out so that if and when you put in a drive-thru, or anybody puts in a hotel or increases their propane business, or whatever it is they’re going to do to bring in more jobs and more business, that it’s going to be done safely and in a way that will work really well there.”

Ultramar hurting

Wendy Alder warned council again on Tuesday that without a drive-thru, she may have to close the Tantramar Gas Bar.

And single-mother Kerry Simpson told council her 16-year-old daughter, who works part-time at the gas bar, has already had her hours cut because of a drop in business.

“As part of a low-income family who experiences struggles every day, how do we not allow business to expand and create more jobs and more hours in our town?” she asked council.

Later, during an interview, Simpson added that her daughter has lost the equivalent of a full shift per paycheque meaning she has less money to help her save for university, pay for her clothing and phone bills while contributing some grocery money to the family budget.

Simpson says council should stop delaying the Alders’ request for a Robin’s drive-thru that would keep jobs in Sackville.

“Talking about economic growth and Moloney [Electric] shutting down and the cost of groceries going up and the cost of everything going up, it’s a no-brainer,” she said.

To read the motion council passed concerning highway exit 506, click here.

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Yes sir, yes sir, three bags full: New rules for Sackville garbage

Eco360 graphic showing blue, green & clear bags

Eco360 graphic showing blue, green & clear bags

Sackville residents will be required to switch to a three-bag garbage system later this month using blue bags for recyclable items, green ones for compostable waste and clear bags for everything else including glass.

Under the new system, green bags containing such items as rotting food, used tissues and coffee grounds will be collected every week, while the blue recycling bags and the clear bags for other garbage will be picked up on alternate weeks. The three-bag collection system will start during the week of Monday, October 24 to Friday, October 28.

At its meeting last night, Town Council gave first reading to a new bylaw to implement the changes. The bylaw is expected to receive third and final reading at council’s next meeting on October 11th.

The three-bag system was devised earlier this year by Southeast eco360, the new name for the solid waste division of the Southeast Regional Service Commission. In a statement on its website, the commission explains the new system is designed to make sorting easier and to separate recyclable and compostable materials from other garbage that will go to the landfill.

The statement quotes interim commission chairman, Jacques LeBlanc, as saying that the three-bag system is more “intuitive” than the blue/green one.

“With a two-bag system, there has been some confusion around those materials that we know are not compostable or recyclable, and finding the right bag for them,” LeBlanc said.

“With the 3rd bag system, we will be asking residents to simply do their best to put recyclable items in a blue bag, organic material in a green bag, and everything else in the 3rd bag…If they are not sure, the material can be placed in the 3rd bag. We are just asking people to do their best.”

For full details on what goes in each bag, click here.

To find out your collection schedule, click here and type in your address.

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Mi’kmaq chiefs express frustration over Fundy tidal projects


The Assembly of Nova Scotia Mi’kmaq chiefs say they feel increasingly frustrated that tidal projects appear to be going ahead in the Minas Passage near Parrsboro, N.S. in spite of their economic and environmental concerns.

In a news release issued on Wednesday, the chiefs call on the provincial government to address their concerns about a range of issues including the potential effects of tidal turbines on fish, fish habitat and fish migration; the potential effects on sea mammals and the displacement of Mi’kmaq fishing.

The release quotes Chief Carol Potter of the Bear River First Nation in southwestern Nova Scotia: “This project will impact our ability to fish in an area that has been used for generations,” Potter says. “We need to have a voice in the decision-making process for this project.”


Illustration from N.S. Marine Renewable Energy Strategy 2012, pg. 12.

The chiefs say they’re also concerned that traditional ecological knowledge is not being included in assessing the potential effects of installing big tidal turbines at the testing site in the Minas Passage as well as smaller ones in Digby Gut, Petit Passage and Grand Passage.

The Mi’kmaq chiefs say they want to meet with provincial environment and energy ministers to discuss their concerns.

Government’s position

Last June, Environment Minister Margaret Miller approved the installation of two, 1,000 tonne, 2MW turbines in the Minas Passage as a way of gauging their effects.

“If we are to advance our collective knowledge of the turbines’ impact on our fish and marine mammals, demonstration turbines need to be in the water,” she was quoted as saying.

The two turbines in question are owned by Cape Sharp Tidal Inc., a partnership between the Irish/French company OpenHydro and Emera Inc., parent company of Nova Scotia Power.

According to Cape Sharp Tidal spokeswoman Sarah Dawson, the first of the turbines is still in the harbour at Saint John, N.B. awaiting repairs to fastening components that were found to be defective. The company has applied for federal permission to use a foreign-owned, heavy-lift vessel to help with those repairs.

The second turbine’s fasteners have already been repaired in Pictou, N.S. where both of the five-storey high tidal machines were assembled.

Court challenges

Meantime, the Bay of Fundy Inshore Fisherman’s Association has launched two sets of legal challenges in their attempt to block installation of the turbines.

On October 20th, a Nova Scotia Supreme Court judge will hear the fishermen’s application to stop any turbine deployments this fall.

Then in February, the association plans to challenge the environment minister’s decision to OK the first two turbines.

The fishermen argue that the minister should not have authorized deployment until baseline scientific studies are conducted to measure the presence of sea life including fish, marine mammals and lobster at the turbine testing sites. The association says such studies would take at least a year.

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