Fate of Higgins Mountain wind farm rests with Supreme Court judge

A group that has taken the provincial Environment Department to court to oppose the May 4, 2023, approval of a 17-turbine wind farm in the Wentworth Valley awaits with fingers crossed a Nova Scotia Supreme Court judge’s decision.

“Our group is supportive of renewable energy; we understand that the province needs to meet its goal with respect to energy and getting us off coal,” said Nancy Frame, who lives in nearby Folly Mountain and is a member of the Protect Wentworth Valley volunteer group that opposes the Higgins Mountain Wind Farm project.

“Many people have asked the province to do a provincial landscape assessment to determine where these projects are best located, and they haven’t done that.”

Frame said the driver of people moving to the Wentworth Valley and enjoying the area is recreation, including the ski hill and hiking and biking trails.

“It’s the devastation that this type of development will require for roads and to blasting and to the environment,” she said.

“We’ve got a unique, biodiverse ecosystem here and it’s home to or part of the habitat of the endangered mainland moose. It doesn’t seem that the province has done its homework with respect to where these projects should be located.”

Decision reversal

Jamie Simpson of Juniper Law, representing Protect Wentworth Valley, and a lawyer for the province made arguments in front of Justice Timothy Gabriel on Jan. 2.

“Two things,” Simpson said of his argument.

“The fact that it was proposed for an area of mainland moose habitat that’s been identified in the Mainland Moose Recovery Plan as core habitat and there is no evidence in the record that the minister reviewed the Mainland Moose Recovery plan,” Simpson said. “We thought that was a shortcoming in the decision-making process.

“The other thing that was concerning is the fact that the minister had approved and even signed a decision letter to not approve the project but rather to require more information from the proponent. 

“Then in the late evening of May 3, the day before the decision was to be released, he changed his mind on that, he flip-flopped and signed a whole new decision letter that he was going to approve it.”

Documents submitted to the court by the Environment Department show a series of staff emails on April 28, 2023, that support a drafted letter signed by Environment Minister Tim Halman and dated for May 4. The letter, addressed to James Houssian, director of Higgins Mountain Wind Farm Ltd., stated that “additional information is required on the potential environmental effects of the proposed undertaking.”

The letter outlined the additional information required included a socio-economic impact study conducted by a qualified expert consultant that would consider the effect of the project on local and regional economic conditions, populations and employment, provide a further evaluation of the impact on residential property values and the potential effect of the project on recreational and resource land uses.

The revised May 4, 2023, letter sent from the minister to Houssian and the company advises that Halman had approved the project.

“Following a review of the information provided by Higgins Mountain Wind Farm Limited Partnership and the information provided by the Mi’kmaq of Nova Scotia and the public during consultation on the environmental assessment, I am satisfied that any adverse effects or significant environmental effects of the undertaking can be adequately mitigated through compliance with the attached terms and conditions,” reads the Halman-signed letter, available on the department’s website. 

‘Concerning’

“We are concerned that the whole decision-making process led up to one result, and a few hours or the night before it was to be released, all of a sudden, there’s a different result, so it calls into question the integrity of the decision-making process,” Simpson said.

Frame said her group received and reviewed the court documents. 

“That’s really concerning,” she said of the apparent decision reversal.

“A lot of people in the community, a lot of experts, had provided really legitimate comments, facts and details that would say that (the minister) should not be approving this project. There appeared to be a lot of information from government sources and people who said they had concerns and I think that is why it appeared initially that the recommendation and the minister’s decision was not to approve it.”

Why then was the decision reversed?

“I can’t answer that but it certainly is concerning that with the weeks of work and information provided that within a couple of days that decision could be changed,” Frame said. 

“I have no answers to that but that is certainly something that concerns our group and part of what prompted the decision to proceed with the judicial review.”

Before the court

Asked about the change of direction, a spokeswoman for the Environment Department said the department could not comment on a matter before the court.

“The court had all of the relevant documents before them and all parties had the opportunity to make their arguments at that time,” said the department statement. 
“Out of respect for the courts and the court process, we will await the justice’s decision before saying anything further.”

Gabriel can rule that the minister’s decision can stand or that the application be sent back to the minister for determination in accordance with the judge’s order.

The department site shows it received an application on March 15, 2023, from Higgins Mountain Wind Farm General Partner Inc., the Sipekne’katik First Nation and Elemental Energy Renewables Inc. for an environmental assessment for the wind farm project.

The proposed project would construct and operate up to 17 wind turbines that would be up to 195.5 metres in height to the tip of the blade and produce between 5.9 and seven megawatts of electricity.

The project centre is located about 10 kilometres southeast of Westchester Station, 10 kilometres southwest of Wentworth Station and five kilometres northeast of Londonderry.

The proponents propose to begin construction this year and to operate the wind farm for 35 years, starting in 2025.

Project comments

A summary of comments regarding the project received by the department and contained in the court documents show that 187 unique comments were submitted, 88 letters of opposition and 13 in support.

Tom Taggart, the Progressive Conservative MLA for Colchester North, commented about the “potential visual effects and an apparent unwillingness of the proponent to address community concerns.”

The summary also said government reviews identified gaps in the assessment and identified potential impacts for archeological sites, migratory birds and bats, species at risk, surface water and wetlands.

The terms and conditions attached to the approval and referenced in the minister’s letter included specific provisions concerning water resources, animal and plant habitat, air quality and noise impacts. 

One of the provisions required the company to develop a monitoring program for mainland moose for at least two years following the time the turbines become operational.

Frame said she is aware that her group will be accused of a not-in-my-backyard attitude, but “that’s just an easy response to try to squash” the group’s legitimate concerns.

“That’s a pretty irresponsible response, not to have to take the energy or the time to really consider the legitimate concerns of this community.”