PECFN and APPEC are represented by Eric Gillespie and Natalie Smith. The MOE is represented by Sylvia Davis and Sarah Kronkamp. Gilead Power’s case will be argued by Doug Hamilton, Chris Wayland and Sam Rogers of Mc- Carthy Tetrault.

Ostrander Point victory to be tested in appeal court next week

There are many people will be nervously watching developments in a Toronto courtroom beginning next Tuesday. It is here that likely the last chapter of the industrial wind turbines on Ostrander Point is to be written.

HOW WE GOT HERE
In 2009, the Green Energy Act was made law. The sweeping legislation comprised an array of measures designed to ease the development of more renewable energy projects in the province. It reduced or eliminated regulations and processes used by its safeguarding agencies, including the Ministry of Environment, the Ministry of Natural Resources and the Ontario Energy Board. It replaced several regulatory appeals with one—the Environmental Review Tribunal.

Politicians, such as former MPP Leona Dombrowski, assured anxious rural Ontario residents, communities and their local leaders that the ERT, or Tribunal, would be independent, thorough and their conclusions would be final. Many residents were unsettled by the assurances—viewing the ERT as merely the last checkbox for a developer to tick before being released to plunder the provincial treasure and lay waste to the rural countryside. It was viewed as a cynical contrivance by a government fixated on seeing thousands of industrial wind turbines spinning in the provincial countryside. It would be Premier Dalton McGuinty’s legacy to Ontarians.

To ensure ERT adjudicators weren’t being led astray by sympathetic arguments by those defending their communities, livelihoods and natural environment, the Green Energy Act dictated that the legal test for the ERT would be impossibly high.

To be successful an appeal to this panel would have to prove “serious harm to human health” or in the case of birds, animals and their habitat the requirement is to prove “serious and irreversible harm.”

OSTRANDER POINT
Late in 2011 the Ministry of Environment issued a Renewable Energy Approval to Gilead Power Corporation, enabling it to proceed with its plan to erect nine industrial wind turbines, each soaring 423 feet into the flight path of the millions of birds that migrate through the region each spring and fall. It granted the approval on Crown Land—essentially industrializing a rugged and largely wild bit of the south shore of Prince Edward County.

Two appeals were made to the province’s ERT.

The Alliance to Protect Prince Edward County presented witnesses who described the damaging effects of living near industrial wind turbines. They presented scientific and medical evidence to support their position that wind turbines were hurting Ontario residents and that no other project should be permitted until a thorough and independent study of the health effects was conducted and shown to be safe.

The Prince Edward County Field Naturalists presented expert evidence on the rare and sensitive alvar habitat at Ostrander Point. Evidence showed that a number of endangered species of birds and animals shared this unique ecosystem, and that tipping the balance to industrial development would put the survival of endangered species in peril.

The Tribunal sat for more than 40 days— entering 188 exhibits to the evidentiaryrecord. The Tribunal was nothing—if not thorough.

On July 3, the Tribunal found that while the medical testimony was credible, the individual circumstances were unique. It ruled that APPEC had failed in making a causal connection between the industrial wind turbines and the health of those affected. Further the Tribunal noted that when a causal link is established—criteria will need to be developed to determine the relative risk to the surrounding population. APPEC’s appeal was turned down.

But the Tribunal wasn’t done. It found that that indeed the threat posed by the indus-trial wind project would cause “serious and irreversible harm” to the Blanding’s turtle— an endangered species that had been shownto nest in and around the project site. The Tribunal was unconvinced by the devel-oper’s plan to mitigate the harm posed tothe turtles, particularly by the road network to be developed to service the soaring windmachines.

In a landmark ruling—the Tribunal revoked the developer Renewable Energy Approval in order to protect the Blanding’s turtle. It was a stunning outcome that sent seismic quakes reverberating through the entire wind energy sector in Canada.

In August the developer, Gilead Power Corporation, appealed the decision to the Ontario Superior Court. That was expected. What wasn’t expected was that the Minstry of Environment (MOE) would join the developer in appealing the decision of its own Tribunal. Throughout the Tribunal hearings, many were shocked to see the MOE using its taxpayer-funded might and resources to challenge a small group of environmentalists and nature lovers seeking to protect the wildlife and natural habitat on Crown Land.

Shock has turned to outrage as the MOE has lined up with Gilead in this legal challenge of a decision of its own administrative panel.

Next week, three Ontario Superior Court judges will hear why it should overturn the Tribunal’s ruling, let it stand, or even expand it.

If you can assist PECFN or APPEC financially you may make a contribution online at: saveostranderpoint.org or appec.wordpress.com

THE ARGUMENTS

The developer, the MOE and the wind industry will try to persuade the Ontario Superior Court judges of two key arguments. First, they will seek to undermine the Tribunal’s authority by arguing that its members, Robert Wright and Heather Gibbs, strayed beyond their mandate. Specifically they will argue that the fate of the Blanding’s turtle was sealed with the Ministry of Natural Resources granting the developer the ability to “harm, harass and kill” the endangered species. This was done as part of the project approval process. The Tribunal had no authority to question this, according to the developer and the MOE.

Gilead and the MOE will also argue that the ruling of the Tribunal denied them “natural justice”, that is that in ruling to revoke the developer’s permit—Wright and Gibbs failed to give Gilead the opportunity to proposed a remedy to the Tribunal’s concern.

So the first order of business next Tuesday will be a motion by the developer seeking to introduce new evidence— evidence the developer believes will nullify the issue that stands in the way of their project.

Eric Gillespie, representing the Prince Edward County Field Naturalists, will argue that it is much too late for the developer to table new plans to protect the Blanding’s turtle. He will point out that the developer had more than two years, and 40 days of hearings, to show that it could protect and mitigate the harm this project will impose upon this endangered species.

PECFN will argue that the Tribunal’s decision didn’t go far enough—that the arguments for the sake of the Blanding’s turtle apply equally to other endangered species at risk at Ostrander Point.

Meanwhile APPEC has also chosen to appeal the Tribunal decision as it relates to the health of humans.