Bay of Fundy fishermen lose court bid to stop testing of huge tidal turbines

Fishermen lose tidal turbine court challenge

HALIFAX — Fishermen opposed to the testing of a massive tidal-power turbine in the Bay of Fundy have failed to persuade a court that Nova Scotia’s environment minister was wrong to approve the project they say is based on badly flawed scientific data.

The 175-member Bay of Fundy Inshore Fishermen’s Association had asked a Nova Scotia Supreme Court judge to quash Margaret Miller’s decision of June 20, 2016, arguing it was unreasonable.

But Justice Heather Robertson, in a decision released Monday, concluded that “extraordinary efforts” were made to evaluate the risks associated with the pioneering project.

“The project has not been undertaken lightly and follows rigorous ongoing evaluation. The minister of the environment is entitled to the deference of this court, in making these very reasonable decisions.”

David Coles, the lawyer representing the association, argued that the project’s main proponent, Cape Sharp Tidal, had drafted an environmental effects monitoring program without first compiling “relevant baseline data” about the bay’s ecosystem, as spelled out in the province’s environmental regulations.

As well, the association stressed that a review by the federal Fisheries Department pointed out “knowledge gaps” in the baseline information provided to the provincial government.

“The minister was required to consider certain things, and they’re just not in the record,” Coles told the court on Feb. 1.

However, Robertson found that even though the Fisheries Department was aware of the data gaps, it decided the project could proceed because a so-called adaptive management approach could be counted on to fill those gaps.

“With respect to the applicant’s first argument of lack of relevant baseline data, it is clear to me that environmental baseline information was available and was presented by the proponents of the undertaking,” Robertson’s decision says.

The fishermen’s association issued a statement Monday strongly condemning the decision, while hinting at alleged political interference and other vague allegations.

“This … has only served to galvanize our resistance,” spokesman Colin Sproul said in the statement.

“In the court’s decision, it is stated that the court should not be an arbiter of scientific fact, but then the court goes on to do just that. Namely, to accept industry-controlled junk science as the truth.”

The group confirmed it is considering an appeal. 

The fishermen have repeatedly stressed that the bay is a rich breeding ground for lobster, groundfish and scallops. As well, they have said the group is not opposed to renewable energy — they just want to make sure the existing turbine and the ones that follow do not cause irreparable harm to the bay.

The government has said monitoring at the other turbine sites has not recorded a single collision with ocean life, and an environmental report released by the company earlier this month suggested all was well with the turbine.

The turbine, which can generate enough electricity to supply only 500 homes, is about five storeys tall and anchored on the seabed at the mouth of a five-kilometre-wide channel near Parrsboro, where the crushing currents can travel at five metres per second.

Earlier this month, Cape Sharp said it would be removing the turbine from the water to complete repairs and upgrades.

The partnership behind Cape Sharp Tidal includes Halifax-based Emera Inc. and OpenHydro, a French conglomerate that specializes in naval defence and energy. Cape Sharp has said a second test turbine will be installed in the bay later this year.

Michael MacDonald, The Canadian Press