Accidental whistleblower

(L-R) Lawyers Andrew Lokan and Chris Paliare, representing the South Shore Conservancy, and Graham Andrews and Eric Gillespie, representing the Prince Edward County Field Naturalists, work together to argue the Ostrander Point project would have devastating effects on the Blanding’s turtle.

Ministry expert warned that Ostrander Point wind project posed a high risk to Blanding’s turtles before it issued permit to developer to “harm, harass and kill” the endangered species

It was three days into eye-wateringly dull expert testimony, technical language and lawyer-speak. Three days in a hot, humid room with three ineffectual fans lazily turning above a wilting crowd, with barristers in their shirtsleeves as jackets hung over chairs. Then, without warning, the room was seized by high drama. Suddenly, the very credibility of Ontario’s Renewable Energy Approvals process was thrust into the spotlight.

Last Wednesday morning, as far as the eye could see, Demorestville was lined with parked cars. The town hall of the tiny hamlet was hosting the second Environmental Review Tribunal for the proposed wind turbine project at Ostrander Point.

Although the original Tribunal ruled against the turbines, Gilead Power Corporation and the Ministry of the Environment and Climate Change (MOECC) had appealed the ruling, arguing that the Tribunal did not have the chance to see their updated plan, one that would mitigate damage to the endangered Blanding’s turtle, which makes its home at the point.

More than 100 people crammed into the hall to hear the Tribunal, scheduled over three days and set to end on Friday.

Each day brought new expert testimony. On day one, Dr. Fred Beaudry, an expert on Blanding’s turtles, testified that he did not believe Gilead’s mitigation plan of building artificial turtle habitat would be effective. On day two, researcher Kari Gunson, an expert on road migration, cast a doubt on the company’s plan to prevent damage to turtles by gating the project site.

On day three, the MOECC introduced their witness, but the heat, the flies, tedious expert testimony and other commitments caused folks to slowly drift away, leaving a half-empty gallery, some jotting notes, others knitting or shuffling papers to pass the time.

Joe Crowley is a researcher for the Ministry of Natural Resources and Forestry (MNRF). He began the day with his testimony, discussing Gilead’s mitigation plan of building a gate around the site. It wasn’t until the afternoon, near the end of the day, when the Tribunal had aimed to wrap up that Eric Gillespie’s examination suddenly erupted with a dramatic turn of events.

Gillespie questioned Crowley on his involvement in the project earlier, when the MNRF was deciding whether to grant a permit to “kill, harm and harass” endangered species. Crowley, a herpetologist with both a personal and professional interest in turtles, seemed, according to Gillespie, an unlikely candidate to recommend such a permit if he thought serious harm would come to the Blanding’s turtle. Something didn’t fit.

Gillespie questioned Crowley’s report on artificial nesting habitats studied for the project, which saw a total of four turtles over two years use the site. Gillespie referred to Dr. Beaudry’s testimony, that Blanding’s turtles are not predictable in their nesting habitat, and it would be hard to entice them to artificial sites.

“Two turtles is not strong evidence. If that was strong evidence in science, we would save a lot of time with some of these human health hearings that we have to go through,” said Gillespie.

“Two turtles in one year using a mound, I’m going to suggest to you, very clearly is not strong scientific evidence,” said the PECFN lawyer.

When Gillespie confronted him on the fault in his logic, Crowley paused a long time before responding.

“I never stated that the Fournyea study shows that Blanding’s turtles will use artificially created habitat, I was speaking to all freshwater turtle populations,” Crowley answered carefully. “It was a general statement.”

Crowley went further. He said he didn’t think the artificial nesting sites would attract the endangered turtles, just that they would use the sites if they found them.

Gillespie asked if that meant that the roads being created by the project would be attractive to the turtles, increasing the risk to the endangered species. Crowley said it did. Then Gillespie asked if Crowley had recommended the project be allowed to go ahead. Crowley said he hadn’t.

That was the showstopper.

“I expressed significant concerns with the fact the roads, because they were open to the public, would have a relatively high risk of road mortality for Blanding’s turtle, comparatively to the current risk now,” Crowley admitted. “So I did express concerns about the potential level of mortality on the road.”

There was a noticeable stirring as the revelation come out. Suddenly everyone was sitting straighter and leaning in to listen.

Where was the documentation, Gillespie wanted to know.

When Gillespie asked where his recommendation was, Crowley answered that it had been given orally in a meeting or via email at the MNRF. It was not available. Gillespie turned to the Tribunal adjudicators, Heather Gibbs and Robert Wright, insisting that documentation referring to Crowley’s recommendation be made available.

MOECC lawyer Sylvia Davis protested, arguing Gillespie was on a fishing trip, that his request was unreasonable. She argued that the information Gillespie was seeking was based on the original project, not the subject of the current phase of the Tribunal hearing and was, in any case, in the past.

Gillespie responded by saying the revelation from Crowley called the whole process into question.

“You’ve just been told that you conducted a 40- day and 40-night hearing, and it went through all of that exercise two and a half years ago, and this matter went to the divisional court, it went to the court of appeal, and the Ministry of the Environment concealed the fact that one of their key reviewers was recommending against this project,” Gillespie told the Tribunal adjudicators. “The parties didn’t know that, and the Tribunal didn’t know that.”

The adjudicators agreed with Gillespie, ordering the MNRF to produce any written or typed documents, including emails, connected to the project and to the turtles. The Tribunal was put on hiatus, and will resume on September 23.