To harm, harass and kill

Appeal hearing considers who shall condemn endangered species in the name of green energy

By the time Heather Gibbs and Robert Wright concluded that the risk, posed by a proposed industrial wind project at Ostrander Point upon the Blanding’s turtle, was simply too great, and the damage likely permanent, the Environmental Review Tribunal (ERT or Tribunal) panel had heard more than 40 days of testimony. More than 188 exhibits had been entered into evidence. Their decision ran 140 pages.

That decision, to revoke the Renewable Energy Approval (REA) granted to Gilead Power by the Ministry of Environment (MOE), rocked the wind energy sector in this country. It sent government bureaucrats scurrying for cover.

If the fate of a turtle could block the development of an industrial wind project—the precedent could be a formidable roadblock to similar projects across the province and Canada. There are other turtles and endangered species that deserve the protection this panel afforded the Blanding’s turtle of Ostrander Point. The implications are profound.

Wright and Gibbs must have known their words, their actions, and their decision would be attacked, pulled apart and recast as naïve or simply mistaken.

An appeal to the Ontario Superior Court was the only door left open to the developer, Gilead Power Corporation, the wind energy lobby and their large team of lawyers.

So it was that the latest battle, played out in a courtroom over three days last week at Osgoode Hall in Toronto, was fought over what Wright and Gibbs said. What they wrote. What they did. And what they didn’t do.

Did Wright and Gibbs make an error in law? Or procedure? This was the narrow lens with which the three justices—Maria Linhares de Sousa, Ian Nordheimer and Kevin Whitaker—heard arguments in courtroom number three last week.

NEW EVIDENCE DENIED
Even before the appeal began, the developer’s attorneys attempted to change the ground rules by urging the justices to hear new evidence. The talented and able lawyers from McCarthy Tetrault argued that their client, in the intervening months since the Wright and Gibbs had delivered their decision, had undertaken steps it believed would address the Tribunal’s concerns.

Their argument failed to persuade the appeal court. The justices refused to widen its scope beyond whether or not the Tribunal had conducted themselves correctly and in accordance with the rules by which they are governed.

THE SETTING
Courtroom 3 is located on the west side of the ornate and grandly decorated centre square of Osgoode Hall. Ceilings soar to about 40 feet. The length and width are only a few feet greater—forming a giant cube. The three justices, cloaked in floor-length robes are perched upon a raised platform before a thick hewnwood bench. The only marker of the current century is the laptop computer each judge keeps before them—though scarcely used.

Arrayed below them are rows of lawyers. Eric Gillespie and Nathalie Smith argued the bulk of the appeal for the Prince Edward County Field Naturalists (PECFN) and the Alliance to Protect Prince Edward County (APPEC).

Environmental Review Tribunal members Heather Gibbs and Robert Wright listen to arguments from PECFN lawyer Eric Gillespie during the Tribunal hearing in Demorestville last spring.

Behind Gillespie and Smith, Chris Paliere and Andrew Lokan intervened on behalf of the South Shore Conservancy (SSC). Collectively, these four lawyers were the only voices arguing for the endangered species, the human health of neighbours to the proposed project or indeed the decision of the Tribunal.

Wright and Gibbs were never present during the appeal hearing in which their words were dissected and analyzed. Neither were they represented except for the PECFN and SSC lawyers.

In the middle row—three lawyers from the Ministry of Environment and the Attorney General’s office argued that their own MOE-appointed panel had erred.

One exchange was particularly illustrative. Sylvia Davis spent much of her energies arguing that the Tribunal looked at the fate of the endangered species too narrowly—that nine turbines at Ostrander Point couldn’t determine the outcome of a species—even an endangered species such as the Blanding’s turtle or the golden-winged warbler.

Then, with an odd bit of logistical acrobatics, Davis said: “The Tribunal had heard no evidence to show the developer’s mitigation efforts would be ineffective.”

In effect Davis, representing the Ministry of Environment, argued that the Tribunal ought to have taken as fact that the developer’s measures to protect the Blanding’s turtle would be effective—unless it heard evidence to the contrary.

The Tribunal wasn’t convinced that mitigation measures were sufficient or had been tested to prove effectiveness. They argued the risk was too great to the animals at Ostrander Point. Yet the Ministry of Environment argued that an onus was on groups such as PECFN and APPEC to prove the proposed measures wouldn’t work, rather than on the developer to show they would. It seems a stretch, but observers of the MOE’s legal energies applied to this fight are no longer surprised by the lengths the provincial agency will go to aid the developer and forsake vulnerable species and habitat.

On the right side of the courtroom sat ready a bank of lawyers representing the developer and the industrial wind energy lobby. A total of five from McCarthy Tetrault for Gilead Power, and two from Tory’s making the wind industry’s arguments.

THREE APPEALS
There were three appeals—one by the developer and the MOE seeking to overturn the ERT decision. A cross appeal by PECFN arguing that the reasoning used by the Tribunal to revoke the Renewable Energy Approval on behalf of the Blanding’s turtle applied equally to several endangered bird species. APPEC brought the third appeal arguing that the standard by which the Tribunal used in assessing the risk to human health was too high. Specifically, APPEC’s argument was that the Tribunal was looking for scientific certainty, when it ought to have been assessing the balance of probabilities, that is, whether, more likely than not, the neighbours of this project would be negatively impacted by the industrial wind turbines in their midst.

DEFINING IRREVERSIBLE
The bulk of the three days at Osgoode Hall focused on the first appeal made by the developer, the wind lobby and the MOE. Each made a wide variety of arguments, from a dizzying array of angles, but kept coming back to two issues they believe might win them back their permit.

The developer’s lawyers worked hard to suggest the Tribunal members, Wright and Gibbs failed to sufficiently describe the difference between “serious” and “irreversible” harm, and specifically the scale of the harm that would be required to meet this test. Followers of the review process will remember that the Tribunal had to find both serious and irreversible harm to the animal life and habitat in order to revoke the permit.

Gilead’s lawyers hammered away at the point that the Tribunal failed in articulating that it understood the difference and applied the correct analysis to each leg of the test in its decision.

PECFNs Gillespie and the SSC’s Paliere argued that Tribunal was fully aware of the test it was asked to measure and that the cumulative weight of 140 pages of its decision provided ample and clear support for its decision.

“When you consider the decision as a whole” said Paliere, “they correctly identified the issues, the test and the evidence of 31 experts, plus numerous other witnesses. They had the world’s leading expert in this species.”

A LIVE ISSUE
It would be who decides the final verdict to “harm, harass, or kill” an endangered species that would consume much of the oxygen over the three days—and would elicit the most interactive debate between the bench and the lawyers.

Gilead’s lawyers argued that the Endangered Species Act (ESA) permit to harm, harass and kill an identified species is the purview of the Ministry of Natural Resources. In order to win this permit, the developer had to demonstrate to the MNR that its mitigation and operation measures proposed would benefit the species overall. Gilead’s lawyers argued that the Tribunal’s job was to ensure that proper procedures are followed—not to review the quality of the MNR’s review by hearing new evidence.

Justice Nordheimer quizzed SCC’s lawyer Paliere.

“Do you see any conflict between the ESA permit and ERT decision?” asked Justice Nordheimer. “The REA says you must have an ESA. The ERT is to review the process. They followed the process in front of them. It sounds like you are questioning the validity of ESA permit.”

Paliere observed that that the ESA merely says the developer can kill endangered species without prosecution. It does not say the MNR is the final authority on the fate of these animals.

“No, granting of the permit doesn’t end the question,” said Paliere. “It is the ERT’s role to look at evidence.”

He said the Tribunal was in the best position to consider the fate of these animals in an open and transparent way.

“The MNR’s ESA is a paper exercise,” said Paliere. “It provides no ability to examine experts or to know they are consulting experts at all or just bureaucrats.”

He concluded the Tribunal was correct in hearing expert evidence on the key issue before it, and was in the best position to evaluate it.

WHAT’S NEXT?
The court did not pronounce its finding on any of the three appeals—saying its decision would follow some time later. It also put off a decision about who would pay for this proceeding until after its decision had been rendered.

It was mentioned several times during the hearing that appeal courts are reluctant to overturn the decisions made by administrative panels such as the Tribunal. The judiciary is loathe to be seen as intervening in a governmental administrative process—particularly one that was conducted by well-qualified and experienced members such as Wright and Gibbs.

The developer, the MOE and the wind energy lobby had a very steep hill to climb. Now all anyone can do is wait.