Turtle goes back to court

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

Ontario’s highest court agrees to hear PECFN appeal on behalf of Blanding’s turtle

The fight to defend Ostrander Point and the endangered species that reside in this rare habitat will go on. The construction of nine industrial wind turbines on CrownLand will have to wait. For at least another few months, the Blanding’s turtle, the whippoorwill, and the myriad migrating birds that travel through and rest along the south shore of Prince Edward County will be spared the incursion of giant 50-storey machines into their domain.

On Friday, the Ontario Court of Appeal said it would hear the case for the Blanding’s turtle in the highest court in the province. It is another victory for the Prince Edward County Field Naturalists (PECFN), a small but determined volunteer group of bird watchers and conservationists who have successfully battled developer Gilead Power Corporation to a standstill for more than a year. Fewer than three per cent of Ontario Court of Appeal cases are appealed and heard by the Supreme Court of Canada, so this is likely the last courtroom in which the fate of the Blanding’s turtles at Ostrander Point will be debated.

THE JOURNEY SO FAR
Last spring, PECFN persuaded an Environmental Review Tribunal (ERT) that risks to the Blanding’s turtle posed by the project and the road network required to service the industrial wind turbines, were too great. Further, they were unconvinced that mitigation measures proposed by the developer were either sufficient or adequately tested.

The panel concluded that the impact of the project on the Blanding’s turtle was, in its view, serious and irreversible. The ERT revoked the developer’s permit for the project.

It was a landmark ruling. Since the Green Energy Act was enacted in 2009, no ERT had overturned a Ministry of Environment issued permit. The decision sent shockwaves through the industrial wind sector.

The developer appealed the decision to the divisional court. Gilead was joined in the legal fight by CanWEA, the wind industry’s lobby group.

PECFN was joined its fight by the South Shore Conservancy.

The Divisional Court appeal was heard over three days this past January. The three-member panel ruled in favour of the developer, arguing, among other things, that it was inappropriate for the ERT to have opened up the plight of the Blanding’s turtle in its hearings, since the Ministry of Natural Resources had examined the developer’s plans as part of the permit approval process. It was not the ERT’s place to second-guess this ministry, admonshed the Divisional court.

It seemed the Blanding’s turtle and PECFN were at the end of the line. There was one path still open—an appeal to the Ontario Court of Appeal. But unlike previous stages of this battle, an appeal to the court was not automatic. Only a select few cases are granted leave to appeal. The court alone would decide if the issues in this case merited reconsideration.

In April, PECFN received encouraging news when Justice Robert Blair imposed a stay on development on the site—until the higher court decided whether it would hear the appeal.

In his ruling, Justice Blair painted a large opening for the court.

He wrote there is a “sufficiently serious” argument that the Divisional Court failed to give deference to the ERT—despite particular specialized expertise in the field at question, as contended by PECFN.

He went further, writing that “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 [Renewable Energy Approval].”  It was a clear signal, at least in Justice Blair’s view, the matter should be heard by the Court of Appeal.
Last week, the appeal court agreed to hear the case. It will, however, be several months before the matter is heard in a courtroom. In the meantime, the stay on development will remain in effect.

Once again, PECFN and their lawyer Eric Gillespie will be arrayed against some of the most powerful legal minds in the country. Gilead is represented by senior partners at McCarthy Tetrault, while Can- WEA’s arguments to the Divisional Court were made by Torys’ partner John Terry.

It is unclear the role the Ministry of Environment will play in the upcoming appeal. The government agency was side by side with the developer through the ERT hearings and the Divisional Court appeal— but it was conspicuously absent from the hearings April to determine if a stay should be lifted.

Meanwhile, PECFN is pleased it will get another opportunity to defend Ostrander Point.

“This is an important step forward in the public’s efforts to protect one of the province’s most ecologically sensitive habitats” said Myrna Wood, representing PECFN.

For information about how to support or aid PECFN in this battle, please go to saveostranderpoint.org.