‘Revoked’

Eric Gillespie (with his back to the camera) address Tribunal members Heather Gibbs and Robert Wright in Demorestville.

Why the Tribunal decided it it had to save the Blanding’s turtle

He was the accidental expert witness. In fact Frederic Beaudry wasn’t even scheduled to appear at the Environmental Review Tribunal examining the approval of a nine-turbine wind project at Ostrander Point. But as it turned out, Beaudry’s testimony and expertise would prove to be essential components in the Tribunal’s decision last week to revoke the Ministry of Environment’s approval.

It was during the testimony of Ian Dubin that Beaudry’s name first came up. Beaudry is an assistant professor of environmental studies at Alfred University in New York state. During his testimony, Dubin referred to a report written by Beaudry in 2011 titled, “Comments on the Effects of the Proposed Ostrander Point Wind Energy Park on a Blanding’s turtle Population.”

Dubin’s telephone connection from his location in Hong Kong to the hearing room in Toronto was lost shortly after the reference to the report.

Prince Edward County Field Naturalist’s (PECFN) wanted Beaudry to testify about his report. The developer’s attorney’s opposed Beaudry’s testimony, saying it was too late in the hearing to add new witnesses in the time-constrained process.

On March 18 the Tribunal ruled to allow Dr. Beaudry to testify. He, along with Kari Gunson a road ecologist with Ontario Road Ecology Group, gave expert testimony on behalf of PECFN. Dr. Christopher Edge, a writer and researcher, was qualified as an expert on Blanding’s turtles. Dr. Fraser Shilling provided expert opinion on the impact of roads on the natural ecosystem. Both Edge and Shilling testified on behalf of the developer Gilead Power Corporation. But at key times in the hearing both Edge and Shilling agreed with conclusions drawn by Beaudry about the impact the project would have on the Blanding’s turtle.

The effect was to shred the plan devised by the developer’s consultants to reduce the harm to the Blanding’s turtle—an endangered species. The Tribunal concluded that the mitigation measures proposed by Stantec “would require an absolute level of certainty with respect to the impacts of a project. Such an approach is incompatible with the nature of biology, and our imperfect understanding of the impacts of human activity on plant life, animal life and the natural environment.”

The panel’s skepticism of the consultant’s mitigation plan formed the basis of the Tribunal’s shocking decision to revoke the MOE director’s approval of the project, effectively stopping it in its tracks.

A PLAN TOO THIN
Experts on both sides agreed the Blanding’s turtle is an endangered species whose chief threat comes from being crushed by vehicles on roadways. The Blanding’s turtle lives as long as 80 years and doesn’t reach sexual maturity until it is about 20 years old. This makes the species particularly vulnerable to road kill as the species lack the reproductive speed to replenish those lost.

Beaudry observed that the developer’s plan called for the construction of 5.4 kilometres of roads in the middle of a network of wetlands. He predicted turtles would be required to cross the same roads over and over again as they moved between seasonal habitats.

Both Shilling and Edge suggested signage might reduce mortality but the Tribunal was skeptical that the developer would be able to enforce the rules particularly as the site is on Crown Land.

One of the biggest holes in the developer’s mitigation plan is centred on setbacks from “critical habitat”, a concept defined by the consultant by way of a list of factors provided by Stantec but lacking a scientific source.

Both PECFN’s Beaudry and Gilead’s expert Dr. Edge found Stantec’s definition of the concept of “critical habitat” flawed. So did the Tribunal.

“Given the expertise of Drs. Beaudry and Edge, the Tribunal prefers its interpretation of critical habitat over the approach taken by Stantec, of labeling only permanent wetlands (over wintering and nursery habitat), as “critical habitat”.

The Tribunal concluded that there was no safety net in the developer’s mitigation plans. “The list of minimum impact mitigation plan elements does not include contingency measures, however, in the event the untested mitigation measures are ineffective.”

HOW MANY TURTLES?
Another seemingly pivotal issue for the Tribunal was the scale of the area being considered. The province initially permitted Gilead to “harm, harass or kill” the endangered species at Ostrander Point because the Ministry of Natural Resources considered the fate of the species as a whole in Ontario.

Gilead’s expert witness Dr. Fraser Shilling expressed confidence the Blanding’s turtle’s would survive in Prince Edward County but allowed that he didn’t know how many live there.

The Tribunal, however, found it was more narrowly constrained in its focus than either the MNR or the developer’s expert witness.

“The analysis of serious and irreversible harm is closely linked to the size of the population considered,” wrote the Tribunal in its decision. “The Tribunal is considering the status of the Blanding’s turtle population that occupies this project site and the surrounding landscape.”

Without information to guide them as to the size of the population and therefore its vulnerability, the Tribunal concluded the project would “cause serious and irreversible harm to the Blanding’s turtle at Ostrander Point and will not be effectively mitigated by the conditions of the Renewable Energy Approval.”