Turtle victory

PHOTO: JOE CROWLEY

Appeal court stops Ostrander Point wind project

The Court of Appeal for Ontario ruled on Monday that the Environmental Review Tribunal (Tribunal) that examined an industrial wind turbine development at Ostrander Point was reasonable and justified in its deliberations, and has restored the Tribunal’s decision to revoke the developer’s permit. The Court upheld the Tribunal’s decision that the project would cause serious and irreversible harm to the Blanding’s turtle. In doing so, however, it left a door partway open for the developer.

The historic decision was celebrated by the Prince Edward County Field Naturalists, environmentalists. the South Shore Conservancy and those who believe massive 45- storey machines should not be constructed in sensitive natural habitats. But the story is not yet at an end.

After the Tribunal rendered its decision in July 2013, the developer, Gilead Power, prepared a plan it said would address the issues raised in the Tribunal’s decision. In the appeals that followed, the company argued that it should have been given the opportunity to bring this remedy to the Tribunal.

In its ruling the Court of Appeal agreed. So the Tribunal, comprising Robert Wright and Heather Gibbs, will be reformed to hear the developer’s plan. It involves gates and fencing to restrict vehicle operation on the Crown land on which the project is located. No date or location has been set for this hearing.

“This decision shows that with careful thought, the Court of Appeal has recognized the serious consequences that would result in the development of Ostrander Point Crown Land Block,” says PECFN spokesperson Cheryl Anderson in a statement. “The decision also shows that even though the structure of the Green Energy Act imposes almost impossible odds against environmental protection, determined people can succeed in making their case heard.”

Anderson says the Field Naturalists will carry the fight to its conclusion.

“PECFN is more than willing to show the Tribunal how putting gates on the very access roads which will cause the irreversible harm is no remedy at all.”

According to Eric Gillespie, PECFN’s legal counsel,this is the first case in Ontario in which a Tribunal has overturned an industrial wind project. Now, its decision to revoke the permit has been restored.

An earlier Divisional Court ruling had determined that the Tribunal had erred in its findings because it didn’t know how many turtles there were in the area and therefore couldn’t conclude the seriousness of the impact of the development.

But the Appeal court rejected the Divisional Court’s interpretation, noting that the Tribunal had heard expert witness testimony that said this data was unnecessary to support the conclusion the harm would be serious and irreversible.

“The number of Blanding’s turtle, no matter what that number is, satisfies the criteria for the turtle to be classified as ‘threatened’ under the ESA and ‘endangered’ by the International Union for Conservation of Nature,” wrote Justice Russell Juriansz in his decision, along with Justices Eleanore Cronk and Gloria Epstein.

The Divisional Court also had difficulty reconciling the decision made by the Ministry of Natural Resources to grant the developer a permit to harm, harrass and kill an endangered species under the Endangered Species Act (ESA). The earlier court said the Tribunal had not attached enough weight to the ESA permit.

But the Appeal Court made it clear that the Tribunal was not bound by the ESA permit.

“The Tribunal carefully considered the mitigation measures required by the ESA permit and concluded they were incomplete and would not be effective. The Tribunal exercised its independent judgement and found that the evidentiary value of the ESA permit was outweighed by the expert evidence introduced.”

The Appeal Court also found, contrary to the earlier court, that the Tribunal understood and properly adjudicated the distinction between serious and irreversible harm.

The decision was lauded far and wide.

“Gilead Power cannot proceed with construction and many months will likely go by before a Tribunal hears the evidence in question and arrives at a decision on that point alone,” said Garth Manning of the County Coalition for Safe and Appropriate Green Energy (CCSAGE). “Meanwhile, Gilead Power has no renewable energy permit.”

The developer has 60 days to decide if it wishes to appeal this decision to the Supreme Court of Canada. At least one legal professional sees it as highly unlikely the Supreme Court would agree to hear this case, particularly since a lower court has prescribed a potential remedy.