Stay granted

Still unspoilt Ostrander Point.
PHOTO: CHRIS HALL

Work at Ostrander Point is stopped until an appeal decision is rendered

In a surprising twist of the plot, the Ontario Court of Appeal granted a stay last week, barring a developer from proceeding with construction of an industrial wind turbine project at Ostrander Point in South Marysburgh. The court went further—seemingly pushing open a wide doorway through which the Prince Edward County Field Naturalists will pursue an appeal to a Divisional Court decision in February that restored the Renewable Energy Approval (REA) permit to a unit of Gilead Power Corporation.

It has been a roller coaster ride for the folks who comprise PECFN, and for others who have followed this story closely.

GETTING HERE
Last summer, an Environmental Review Tribunal was persuaded, after 40 days of testimony and more than 180 exhibits, that the threat posed to the Blanding’s turtle, an endangered species, was “serious and irreversible”. The Tribunal revoked the REA permit. The decision sent shock waves across the country. It was the first time an REA permit had been revoked.

The developer and the Ministry of Environment— the issuer of the REA permit—appealed to the Divisional Court. They argued that the Tribunal, itself a creature of the Ministry of Environment, had overreached in reconsidering the issues surrounding the issuance of a permit to “kill, harm and harass”, issued by the Ministry of Natural Resources as part of the REA.

They claimed, too, that the Tribunal it had not provided the developer the opportunity to address its issues through mitigation or alternative measures.

The Divisional court sided with the developer and reinstated the REA permit.

“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 in the decision by the Divisional Court. “The Tribunal ought to have accepted the ESA [endangered species act] permit at face value.

The only legal avenue left for PECFN was an appeal of the Divisional Court decision. But to do this, it must persuade the court that the issues are unique and important enough to hear the appeal.

PECFN believe the issues at stake go to the very heart of environmental protection in Ontario— that if the Tribunal was precluded from adjudicating upon the fate of endangered species and the mitigation measures proposed to reduce harm to the species, then these safeguards are meaningless.

So they pressed on.

But with the developer eager to get to work, PECFN filed for a stay, to stop activity on the site until the appeal is heard, or leave to appeal is refused.

The stay was granted last week.

WHAT WAS WRITTEN
The decision written by Justice Robert Blair in granting the stay that has aroused fresh hope that Ostrander Point might yet be stopped.

First, the Ministry of Environment elected not to oppose the stay. Through every stage of the review and the Divisional Court appeal, the MOE has argued side-by-side with the developer in support of its REA permit.

But at this latest step, the MOE was conspicuously absent.

“They did not attempt to defend the wind company’s ability to go ahead,” said Eric Gillespie, lawyer for PECFN. “Certainly, some people are reading it as the ministry starting to realize that green energy does not trump anything else.”

But that may be a stretch.

Far more interesting were Justice Blair’s comments in granting the stay.

Justice Blair wrote 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, as contended by PECFN.

He went further.

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

He noted as well that “if leave is granted, the appeal to this Court constitutes the first time that either the Divisional Court or this Court will have dealt with an appeal from an REA.”

Gillespie expressed relief that his arguments had found a sympathetic recipient.

“The Divisional Court wrote a 37-page decision that focused only on vehicle traffic. In a single paragraph, the appeal court recognized that the concerns go much farther, and include not just traffic, but poaching, predators and habitat loss. In one paragraph, the court of appeal has shown a better understanding of the case than what our client sees in the Divisional court’s ruling.”

This is important for reasons that go far beyond the stay of activities on the site.

“The court of appeal has found that there are serious issues still to be tried,” said Gillespie. “The court appears to acknowledge that there are legitimate arguments that can be advanced in response to the Divisional court decision.”

Justice Blair’s decision makes it harder for the court of appeal to ignore PECFN’s motion seeking leave to appeal.

IRREPARABLE HARM
But Gillespie sees further good news in Justice Blair’s decision. PECFN had argued that to allow work to begin would cause irreparable harm to the Blanding’s turtle habitat.

In accepting this argument, Justice Blair wrote that in his view “fine distinctions” were inappropriate.

“Once a habitat is destroyed, it is destroyed,” he wrote, “for at least short-term purposes, in any event— and the species sought to be protected here is a vulnerable and endangered species.”

Gillespie sees this as a significant advancement of PECFN’s argument.

“The court of appeal has found irreparable harm— if the project proceeds,” said Gillespie. “Many people are asking how different that is—if at all—form the test of irreversible harm.”

A cheer erupted at the monthly PECFN meeting last Tuesday night on news that a stay had been granted.

“Now, Gilead Power will not be able to destroy any habitat before we can ask for leave to appeal,” said PECFN’s president Myrna Wood. “We are relieved, as early migration has begun and spring melt is starting to create the conditions needed by all the wildlife at Ostrander Point, including Blanding’s turtle.”

Gillespie outlined the path facing PECFN.

“The next step is the leave to appeal motion,” said Gillespie. “Some of these findings may be relevant to that process. The decision on that issue is likely still a number of weeks away, but clearly PECFN believes that there is good reason to move ahead.”

HOW TO HELP
Funding these legal battles remains a challenge. While the gala dinner and art auction is already sold out—there are three other fundraising events planned for the weeks ahead.

PECFN supporters may watch Mamma Mia and The African Queen with Humphrey Bogart and Katherine Hepburn on the big screen at the Regent Theatre on April 30 in joint fundraiser with the Picton Rotary Club.

On Saturday May 3, Active Arts Studio in Rednersville is screening the Bruce Cockburn documentary, Pacing the Cage. The evening includes County wine, canapés and sweets—and a performance by the Frere Bothers.

The following Saturday, May 9, Sandbanks Vacations and Terry Sprague are hosting a tour of the County’s exquisite natural areas in a comfortable coach. There are only 12 places available. The cost for this day-long excursion is $100, including a picnic lunch.

Edited to correct the ward in which Ostrander Point is located. April 12, 2014