Undone

The Blanding’s turtles at Ostrander Point are on their own now that a court has ruled that a provincial Tribunal over reached its authority in revoking a wind developers permit last year.
PHOTO: JOE CROWLEY

What the court decision means for Ostrander Point and Ontario

A divisional court has ruled in favour of an industrial wind energy developer clearing the path for them to construct nine industrial wind turbines on Crown Land at Ostrander Point in Prince Edward County.

Last year, an Environmental Review Tribunal (ERT) revoked the permit awarded to Gilead Power Corporation to proceed with its project at Ostrander Point. The appeal was made by the Prince Edward County Field Naturalists (PECFN)—a small volunteer group that fears this and other massive wind projects planned in North Marysburgh will wreak havoc upon migrating birds and wildlife in the region.

The Tribunal concluded that the threat posed by the development to the Blanding’s turtle was likely to cause serious and irreversible harm to the endangered species. Further, it felt the developers proposed mitigation measures were untested, and the consequences too grave.

THE APPEAL
The developer appealed to the Ontario Superior Court, arguing, in part, that the issue of its right to “harm, harass and kill” the endangered species had been settled as part of the Ministry of Natural Resources’ Endangered Species Act (ESA) assessment. Their lawyers argued that the Tribunal didn’t have the authority to review it.

While the court didn’t go that far, it agreed that the Tribunal gave insufficient weight to the ESA process and it should have worked harder to avoid the conflict between the two government instruments, the ESA and the Environmental Protection Act.

“In my view, the Tribunal ought to have assumed that the MNR would properly and adequately adequately monitor compliance with the ESA permit,” wrote Justice Ian Nordheimer the decision. “The Tribunal ought to have accepted the ESA permit at face value.”

The court found other errors with the Tribunal’s decision including the failure to consider remedies other than revoking the developer’s permit.

Disappointed, PECFN president Myrna Wood said the decision puts the Green Energy Act out of reach for average Ontarians.

“If it is allowed to stand as provincial law it will make any appeals to the Environmental Review Tribunal or Divisional Court obsolete,” said Wood. “And it will kill any possibility of Ontario citizens being able to protect wildlife habitats or endangered species.

Prince Edward County Field Naturalists lawyer Eric Gillespie says this isn’t necessarily the end of the road. His client can ask for leave to appeal to higher court. He says he and PECFN are examining the decision to consider the available options.

“A number of commentators have already pointed out inconsistencies with [Divisional court’s] decision,” said Gillespie. “Together we will decide whether and how to request leave to appeal this decision at the Court of Appeal.”

Gillespie adds that the decision creates a problem for the government. Specifically that its Endangered Species Act and Environmental Protection Act are seemingly in conflict with each other.

“If you have a permit system that should be given considerable weight and an Environmental Review Tribunal with its own mandate— how do you reconcile those two?”

The answer is important. If allowed to stand, this decision will likely discourage other Tribunals from examining the MNR’s processes by which it permits developers to harm, harass and kill endangered species in this province. Without this Tribunal review, ordinary residents or groups will lose the independent means to assess the impact of such projects, and to ensure the developer does what it said it will do.

In the meantime, PECFN is doing some soul-searching to determine how far it can go in this fight. It will certainly need some additional help and partners.

“We will be conferring with other environmental and conservationist organizations for their opinions on how to respond to this ruling,” said Wood, “organizations such as the Ontario Environmental Commissioner, Nature Canada and the Suzuki Foundation. We will also talk to EcoJustice which, with Ontario Nature and the Wildlife League, have a lawsuit against the province’s change to regulations that gut protection of endangered species.”

Gillespie notes that any appeal must be filed by March 12.

“Three judges will consider our submissions and decide if we will be allowed to appeal this flawed decision,” said Gillespie. “The process can take weeks.”