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.”
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.