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.
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: