Turtlegate

Ostrander wind developer to argue that gates can protect Blanding’s turtles

The developer seeking to construct nine 50-storey industrial wind turbines at Ostrander Point is now proposing to erect a series of gates on provincially owned crown land—in a last ditch maneuver to persuade a provincial court to overturn an Environmental Review Tribunal decision that took away the developer’s permit to build the project in a landmark ruling issued earlier this year.

LANDMARK DECISION
In July, after more than 40 days of hearings, the Tribunal revoked a Ministry of Environment approval of the project in which Gilead Power Corporation proposed to develop a nine-turbine wind project on Crown land on the shores of South Marysburgh. The twomember panel ruled that the project would cause serious and irreversible harm to the Blanding’s turtles that reside in this rare alvar habitat at Ostrander Point. The Tribunal concluded, too, that measures proposed by the developer to lessen the impact of the development on the turtles were untested and unlikely to be effective. Given that the Blanding’s turtle is an endangered species, they decided the potential harm was too great, and once inflicted could not be undone.

It was a precedent-setting decision— not since the provincial government had enacted legislation to reduce the administrative and regulatory hurdles for wind and solar energy developers had an environmental review tribunal revoked an approval permit. Conservation groups and environmentalists rejoiced— as did everyone else opposed to Ontario’s natural heritage being spoiled by 500-foot towers of carbon and steel structures.

The developer appealed the Tribunal decision, along with the Ministry of Environment, seeking to uphold the approval of the project.

THE APPEAL
Among other things, the developer and the MOE will argue that the Tribunal exceeded its jurisdiction. They will argue that the Ministry of Natural Resources had given the developer the ability to “kill, harm or harass” the endangered species. And that the Tribunal lacked the authority to secondguess the provincial ministry.

Gilead Power has a lot riding on the appeal, scheduled to be heard in January in Toronto. It is clearly not willing to risk the outcome of this project on jurisdictional interpretation. Instead it is seeking to take away the issue raised by the Tribunal— specifically the well-being of the creatures at the centre of the Tribunal’s decision—the Blanding’s turtle. Once again, it has the Ministry of Natural Resources on its side.

On January 20 the developer will seek to present new evidence to the appeal hearing. Specifically it will ask the court to consider a plan to erect a series of gates securing access to the road network it wants to build on Crown land at Ostrander Point.

“Restricting public access to the access roads would also provide enhanced protection for wildlife, including species at risk, from traffic mortality,” wrote Mike Lord to the Ontario Ministry of Resources (MNR) in August.

In September a MNR official agreed it would issue a lease of the Crown land to the developer to enable it to build the fence, pending the approval of the project. The MNR also sought a “Project Access and Control Plan” for the access roads. That plan calls for six double swing gates to be erected at key points, one at the entrance and at five other locations where preexisting trails intersect with the proposed access road. The gates would be locked from May 1 to October 15. Gilead staff will monitor and enforce access restrictions.

Gilead staff will report monthly on issues of public motor vehicles bypassing the gates.

Quoting from the Gilead access control plan: “Project staff will be trained on how to answer questions from the public regarding the need for gated access on the Project access roads.”

In its motion the developer will argue that it has taken these steps in order to resolve the Tribunal’s “stated concern”. They will argue the Tribunal should have given it the opportunity to address the issue, rather than revoke the permit. And, that the provincial court should consider this new evidence to satisfy “natural justice.”

Myrna Wood says the developer and the MOE have come far too late in the process to present new evidence. Worse, she says, the developer and the MNR struck this deal with MNR behind closed doors—without any public consultation about this use of Crown Land.

She argues, too, that a few gates will not eliminate the threat the project poses to the Blanding’s turtle’s habitat.

“Gilead’s emphasis on road mortality is an attempt to avoid the Tribunal’s main concern, said Wood. “that is, the destruction of the whole habitat.”

Upping the ante, the developer has also asked the court to make the Prince Edward County Field Naturalists pay the costs of making its motion should the Field Naturalist oppose it.

Undeterred, Wood says Gilead’s and MOE’s intimidation tactics have not stopped her organization so far, nor are they likely to now.