Overuled on Ostrander
A divisional court has ruled in favour of an industrial wind energy developer clearing the path to construct nine industrial wind turbines on Crown Land at Ostrander Point in Prince Edward County. The decision is here.
Last year an Environmental Review Tribunal revoked the permit awarded to Gilead Power Corporation to proceed with its project at Ostrander Point. It concluded that the threat posed by the development to Blanding’s turtle was likely to cause serious and irreversible harm to the an endangered species, Further they felt the developers proposed mitigation measures were untested and the consequences too grave.
The developer appealled to the Ontario Superior Court arguing, in part, that the issue of its right to “harm, harass and kill” the endangered species had been settled as part of the Ministry of Natural Resources Endangered Species Act assessment. They argued that the Tribunal didn’t have the authority to review it.
While the court didn’t go that far, it agreed that the Tribunal gave insufficient weight to the ESA process.
“In my view, the Tribunal ought to have assumed that the MNR would properly and adequately monitor compliance with the ESA permit,” wrote Justice Ian Nordheimer the decision. “The Tribunal ought to have accepted the ESA permit at face value.”
The court found other errors with the Tribunals decision including the failure to consider other remedies than revoking the permit.
Prince Edward County Field Naturalists lawyer Eric Gillespie says this isn’t necessarily the end of the road. His client can ask for leave to appeal to higher court. He says he and PECFN are examining the decision to consider their options.
“A number of commentators have already pointed out inconsistencies with [Divisional court’s] decision,” said Gillespie.
Meanwhile MPP Todd Smith says the court’s decision demonstrates justice is out of reach to average Ontarians.
“The deck is stacked.” Prince Edward-Hastings MPP Todd Smith stated. “Across Ontario we’re talking about small, rural municipalities with small budgets being asked to defend their citizens from the money of major multinational wind developers and the province of Ontario. Even when they win, they’re going to lose because they’ll keep getting dragged into court until the side with the most money wins.”
Smith says it remains within Kathleen Wynne’s ability to stop this project.
“This is a project on Crown Land,” wrote Smith. ” The government can pull the plug on it whenever they want. I can’t believe that they would use taxpayer dollars to fight the people of Prince Edward County in court.
“When Kathleen Wynne came to Quinte a few months ago and said she was going to listen to local voices on these projects, what she forgot to tell the people of Prince Edward County was that she was only going to listen to their voices if they said what she wanted to hear.”
More to come.