Tidal Challenge

Inshore fishermen from the Bay of Fundy made a last-ditch plea to the Supreme Court of Nova Scotia yesterday to stall the placement of two massive, five-storey-high turbines on the bottom of the Minas Passage near Parrsboro until an appeal of the Environment Minister’s decision can be heard next February.

There are very big bucks on the line — as well as a clash between a small number of traditional fishermen and the allure of a shiny new industry promising to employ hundreds of people building underwater turbines at home and for export.

The cost to consumers for tidal power, if and when a break-though comes, will initially be three to four times higher than other fuel sources.

The fall lobster season which opened last week in the Bay of Fundy should be worth $100 million in landings, according to Chris Hunter, president of the Bay of Fundy Inshore Fishermen’s Association. That represents about three dozen boats in the larger Minas Basin area. Fishermen don’t want their season disrupted by the arrival of two doughnut-shaped turbines, 16-metres wide atop bases weighing 1,000 tonnes, which will be placed on the ocean floor.

Each install is double the size and undoubtedly more than twice the price of the original $10-million demonstration turbine that had its blades chewed up by the fierce Fundy tides within  three weeks.

That was seven years ago. Finally — after building two sturdier turbines in Pictou and some burps and delays on the construction front — Cape Sharp Tidal  got the green light from the provincial Minister of the Environment in June and is fixed on the narrow window of November 6-8 when neap tide conditions favour lowering the dream machines from  a custom-built barge. It’s a joint partnership between Emera and the French-owned company OpenHydro, a global company that appears anxious to have something to show its investors.

“The request for a stay (of proceedings)  is interfering with a multi-million dollar project,” Cape Sharp lawyer Doug Tupper told Judge Jamie Campbell. “We have the ability to deploy right now.”

Campbell has reserved his decision until sometime later next week. The turbines remain in Saint John, New Brunswick where an equipment flaw in a fastener was fixed.

The key issue for the judge is whether allowing the turbines in the water would cause “irreparable harm” to lobster, fish, and marine mammals before an  appeal  of the  Minister’s decision will take place in February. The lawyer for the fishermen’s association argues that when Minister Margaret Miller approved an Environmental Effects Monitoring program to protect the fishery, she failed to live up to a condition in the provincial Environment Act that requires the program use “relevant baseline data.”

“There will never be an accurate baseline once you interfere with that site,” said lawyer David Coles on behalf of the inshore fishermen. “My client is not opposed to the development of Fundy tidal power. They are opposed to the rolling of the dice without a proper baseline to figure out the effects, if there needs to be remediation later.”

Fisherman Colin Sproule worries that without accurate starting numbers around fish populations and fish movement, any changes from a small number of turbines may be overlooked or underestimated, leading to a rapid and full scale deployment of hundreds of  devices in the Minas Passage to harness an astounding flow of water roughly equal to all the rivers in the world, twice a day.

Coles pointed out  scientists with the Department of Fisheries who had reviewed the Environmental Effects Monitoring program developed for the Cape Sharp project had “condemned” the program for lacking adequate monitoring and consideration of the impact from turbines on fish, lobster, and marine mammals. DFO has a responsibility to protect fish. After alerting the province to criticism raised by its scientists and subsequent consultations with the provincial Department of the Environment, DFO eventually signed off on the Environmental Effects Monitoring program. The federal department did so after the province adopted something called an “adaptive management approach.” This allows the Department of Environment to relax or stiffen regulations as more information becomes available — what  Coles characterized as “a risky, learning-as-you-go thing.”

Not so, according to the legal team for Cape Sharp Tidal, noting the two turbines could be pulled out of the water in only 12 hours if something goes wrong.

“What we have here is an incremental and phased-in approach under constant scrutiny of the regulator to determine if there is a future for tidal energy in Nova Scotia,” said Harvey Morrison, a lawyer for Cape Sharp Tidal. “It’s an overstatement to says it’s a risky game of chance or roll of the dice. The regulators have agreed there is a minimum but acceptable risk. In order to get more information, the demonstration should proceed and the research should continue.”

The application by the fishermen’s group to delay the turbines led to duelling expert opinions  — but oddly, no cross-examination. The case did expose an uncomfortable rift between two respected marine biologists who had been friends and collegues for 40 years at Acadia University. Professor Mike Dadswell says porpoises and white sharks are at “extreme risk” from turbines and the Fundy Ocean Research Center for Energy (FORCE) which developed the Environmental Effects Monitoring program needs to do more work before any turbine hits the water. Dadswell’s opinion supports the concerns raised by the  fishermen.

Acadia Professor emeritus Graham Daborn is an unpaid member of FORCE’s Environmental Effects Monitoring Committee, and the man many consider as “the dean of environmental scientistis” is also the founder of the Acadia Tidal Energy Institute. Cape Sharp solicited an opinion from Daborn about whether launching the turbines in November would cause “irreparable harm” to the fishery.

In an interview outside the courtroom, Daborn said “no.” He says his opinion is based on studies of turbines in British Columbia, Maine, Ireland, and Scotland that show not a single marine mammal or fish has yet been struck by an operating  turbine. He also says there is no evidence to support a claim by fishermen that the Bay of Fundy is a major spawning ground for lobster or that the devices would impact lobster — that’s because, said Daborn, the shellfish are bottom-feeders well below the depth of the turbine wheel suspended in the water. Daborn shrugged off a suggestion from the fishermen’s lawyer his opinion is tainted because he had helped draft the monitoring program.

It’s left to Justice Campbell to decide if the fishery could be forever harmed if the tidal turbines approved by the provincial government go into the Bay now, a few months prior to the appeal of that decision. Lawyer Harvey Morrison for Cape Sharp pointed out that the fishery had not suffered “irreparable harm” following the first deployment back in 2009, when a trail-blazing  turbine spent the winter in the ocean before it could be safely retrieved.

“The Bay of Fundy is changing all the time,” said Graham Daborn. “Tides are becoming higher and the idea of a baseline is an illusion in this type of an environment. We need to get them in the water now so we can do further study.”