Last line of defence

Who will protect the Blanding’s turtle? PHOTO: JOE CROWLEY

Why environmental groups across the province will be closely monitoring the Ostrander Appeal

There is a great deal on the line in an appeal hearing set to take place in a Toronto courtroom this December. For many, it is the fate of the Blanding’s turtle, an endangered species, that will be at issue. For others, it is preservation of the rugged Crown land at Ostrander Point on the County’s south shore—seeking to keep a migratory bird flyway free of industrial wind turbines sweeping the sky more than 40 storeys in the air.

Yet for a growing number of people, it is the province’s own Environmental Review Tribunal system that will be on trial. At question is whether or not the Tribunal can do the job for which it was established.

And without an effective and transparent review mechanism some fear the Endangered Species Act itself will be rendered meaningless in Ontario.

A lot of eyes will be on the Court of Appeal in December.

SERIOUS AND IRREVERSIBLE HARM
In July 2013, the Tribunal, formed to examine a project to construct nine industrial wind turbines on Crown land at Ostrander Point, revoked the developer’s Renewable Energy Approval (REA). The two-person independent panel agreed with the Prince Edward County Field Naturalists (PECFN) that the risk posed by the development would cause serious and irreversible harm to the Blanding’s turtle— an endangered species in Ontario.

This had never happened before. Not since the Green Energy Act became law in 2009 had such a Tribunal revoked a developer’s REA.

The developer appealed.

In January, the Divisional Court ruled the Tribunal had overreached. Among other things, the three-member court said it was not the Tribunal’s role to re-examine the basis upon which the developer had been granted a permit by the Ministry of Natural Resources to “harm, harass and kill” endangered species. The court argued that the Tribunal had not given “sufficient deference” to the MNR’s permitting process.

The Divisional Court reinstated the developer’s REA.

PECFN decided to appeal the Divisional Court’s ruling. It was a long shot. The Court of Appeal only deems a handful of cases worthy of a hearing each year.

In his decision allowing the appeal, Justice Robert Blair wrote that there is a “sufficiently serious” argument that the Divisional Court failed to give deference to the Tribunal—despite particular specialized expertise in the field at question.

He went further.

“The issues raised on the proposed appeal are issues of broad public implication in the field of environmental law,” Justice Blair wrote.

For some, the Environmental Review Tribunal system will become a meaningless rubber stamp if it is precluded from calling witnesses, hearing evidence and evaluating this evidence regarding the protections provided for endangered species.

Myrna Wood speaks for PECFN. She says the Tribunal system is a critical environmental safeguard and must not be shackled by the narrow view of the Divisional Court.

“The Divisional Court said that the Tribunal should have taken the MNR’s permit to enable the developer to “harm, harass and kill” endangered species at face value,” said Wood. “But what will happen if they find the mitigation measures proposed by the developer aren’t working? That all the Blanding’s turtles have disappeared? Will they take down the turbines?

“It is a meaningless remedy. That is why it is so important that the Tribunal to look at these protections and draw its own conclusions about whether they are sufficient to protect the endangered species, and ultimately empowered to revoke the REA if they aren’t satisfied.”

Wood is not alone in her worry that the province is quietly abandoning its responsibility to protect endangered species. They point to recent changes in the Endangered Species Act that make it much easier for a wide array of developers to sidestep the issues around endangered species.

Ontario’s Environmental Commissioner Gord Miller has warned the changes to the Act “cast doubt on the ministry’s ability to properly manage and protect Ontario’s natural environment.”

Rather than apply for a permit to “harm, harass and kill” endangered species as the developer at Ostrander did, developers are now merely required to show they have a plan to benefit the species at risk. There is no monitoring or evaluation to ensure the plan works. It is largely up to the developer to protect the species at risk.

“By effectively exempting most of the major activities on the landscape that can harm species at risk and their habitats, the regulation thwarts the very purposes of the act, there is little to no opportunity to promote the recovery of species at risk,” said Miller.

Many folks are hoping the Court of Appeal will reinstate the Environmental Review Tribunal system with the authority to protect endangered species, particularly since other provincial agencies are increasingly abandoning them.