Cape Sharp photo showing turbine deployment in November

A lawyer for the Bay of Fundy Inshore Fishermen’s Association appeared to have a tough time this week persuading a Nova Scotia Supreme Court judge that a 1,000 tonne tidal turbine should not have been lowered into the Minas Passage in November.

David Coles argued during Wednesday’s court hearing that installing the turbine violated environmental regulations because provincial officials did not have enough baseline scientific information to predict potential adverse effects on marine species and their habitats.

Coles asked Judge Heather Robertson to overturn the environment minister’s June 20th approval of proposed environmental monitoring plans allowing for deployment of two Cape Sharp tidal turbines.

But the judge repeatedly questioned whether more scientific information was needed before the tidal project could proceed. She also suggested the province is genuinely trying to understand the environmental impact of the “fledgling” tidal industry and that scientists will gather more information after turbines go into the water.

“I’m not here to promote the industry or say it has to go ahead,” the judge said. “My judicial duty is to analyze the reasonableness of the minister’s decision.”

Earlier in the hearing, the judge referred to the already installed tidal device when she said, “You don’t have scientists saying, ‘shut that turbine off.'”

Routine decision

Sean Foreman, a lawyer representing the Environment Department, told the judge the approval of the first two turbines was a routine administrative decision that arose out of initial approval of the whole tidal demonstration project in 2009.

“There is no serious disconnect in how this process unfolded,” Foreman said. “We’ve had seven years of extensive study. Is it perfect? Absolutely not. Is it required to be perfect? Absolutely not.”

Scott Campbell, a lawyer for the Fundy Ocean Research Centre for Energy (FORCE) the non-profit organization which oversees the tidal site near Parrsboro, N.S. said, “We are talking about a very small-scale demonstration project with one turbine deployed.”

Campbell acknowledged that scientists at the federal Department of Fisheries and Oceans had identified gaps in scientific knowledge about potential turbine effects, but said there was no evidence in their report of serious harm and no suggestion that turbine deployment should not proceed.

Precautionary principle

Fishermen’s lawyer, David Coles also argued that under the terms of the provincial Environment Act, the minister was required to follow the precautionary principle in the face of scientific uncertainty about potential turbine effects on fish in the Minas Passage. He suggested that under that principle, the minister should have refused to approve turbine deployment until more scientific information had been gathered on turbine effects.

But Cape Sharp lawyer Harvey Morrison countered that the minister’s approval was based on a careful evaluation of risk and that it’s not possible to determine whether fish will collide with turbines until the machines are actually in the water.

Fishermen’s Association spokesman Colin Sproul at the Halifax courthouse

Later, outside the courtroom, Colin Sproul, a spokesman for the fishermen’s association, said complete baseline information is required before turbines are deployed so that scientists can compare conditions before and after deployment. He added that federal and provincial politicians decided to go ahead with the project based on political considerations, not scientific evidence.

“I think the province set out on this project with good intentions,” Sproul said, “and if they had followed their own advice to have meaningful, transparent consultation with the fishing industry that we wouldn’t be here today.”

He added that his association, the largest fishermen’s organization in the Bay of Fundy, was never approached by the government, FORCE or Cape Sharp about the tidal project.

“The onus is on proponents and regulators to meaningfully consult with Bay of Fundy stakeholders and it’s something they failed to do,” he said.

At the conclusion of Wednesday’s court hearing, Madame Justice Robertson said she was reserving her decision. It will be released at a later date.

If, as seems likely, the judge refuses to overturn the government’s approval of the two turbines, the second one will probably be deployed this spring.