Bay of Fundy tidal turbines case opens in Halifax court

A legal fight to halt the deployment of two five-storey tidal turbines on the seabed of Nova Scotia's Minas Passage opened in a Halifax court on Thursday.

The Bay of Fundy Inshore Fishermen's Association has applied for a stay on the installation of the two tidal turbines by Cape Sharp Tidal Ventures.

The association claims the turbines will cause irreparable harm to marine life and fisheries in the Bay of Fundy.

David Coles, a lawyer retained by the association, wants Nova Scotia Supreme Court Justice Jamie Campbell to stop the deployment until February. That's when there will be a full hearing on the association's application for a judicial review of the Nova Scotia Environment Department approval.

Questions over environmental monitoring

Coles said it was unreasonable for the department to approve a program monitoring environmental effects that did not include "relevant baseline data" as required under the original 2009 assessment.

"You can't ignore the very parameters that were fixed to the project authorization," Coles told the court.

He said federal fisheries scientists "condemned" as grossly inadequate the environmental monitoring done and planned.

The judge asked for evidence of what irreparable harm would be caused if the turbines were installed and then removed if needed in February.

"I am desperately looking in these scientific reports to find that conclusion," Campbell said.

'No evidence' it would harm Cape Sharp

Coles also argued there would be little inconvenience to Cape Sharp Tidal if the installation was delayed because the company has not announced an installation date. 

"There is no evidence of economic loss, no evidence of any harm that befalls Cape Sharp," Coles said.

Cape Sharp Tidal dismissed the importance of what it called a "mythical" baseline, saying the whole point of the installation was to test the impact of turbines in the water.

"The purpose of the demonstration is to see if there will be harm," said Harvey Morrison, a lawyer for Cape Sharp.

Officials watching proceedings

He argued that if there was a serious risk, the Nova Scotia Environment Department and Fisheries and Oceans Canada would not have approved the deployment.

"If they felt this could not proceed without adverse effects, they would have said so," Morrison said.

Company officials refused to answer questions outside the courtroom, including when it wants to put its turbines in the water.

Cape Sharp Tidal is a partnership between Emera and Open Hydro of France. Both companies had officials watching proceedings.

Turbines destined for 1 of 5 berths

A lawyer for the province warned the judge that if he grants a halt, it will grind Nova Scotia's environmental assessment process to a halt.

Ryan Brothers said accepting conditions for an environmental effects monitoring program is entirely at the discretion of the minister.

The tidal turbines are destined for one of five berths under the control of the Fundy Ocean Research Center for Energy, a non-profit corporation overseeing tidal power development.

Minimal but acceptable risk, regulators agreed

Scott Campbell, a lawyer for the corporation, argued there was no evidence of irreparable harm caused by knowledge gaps in baseline surveys. The surveys do not include things like fish populations and movement in the area, but Fisheries and Oceans Canada decided that could be done later.

Campbell said regulators agreed there is a minimal but acceptable risk and the installation should proceed.

"If there are significant adverse effects occurring, the approval holder must remove them," Campbell told the court.