Wrong to assume

The Prince Edward County Field Naturalists are wrong. Ontario Nature. Nature Canada. Both wrong. Dr. Robert McMurtry is wrong. The South Shore Conservancy is wrong. So too is the Prince Edward Point Bird Observatory. Alvar, bird, butterfly, turtle and bat experts are all wrong. The municipality of Prince Edward is wrong. As are the majority of County residents who believed Crown Land at Ostrander Point should be preserved—rather than industrialized for the profit of one corporation.

And now we have learned that Ontario’s own Environmental Review Tribunal is wrong. A Toronto court has said so. This ought to keep Premier Kathleen Wynne up at night.

The Tribunal’s Robert Wright and Heather Gibbs spent more than 40 days hearing evidence, challenging testimony and witnesses and weighing competing claims. They began their task in a snowstorm in February; and delivered their decision on a hot July day last summer. Wright and Gibbs visited Ostrander Point. They walked around. They saw, with their own eyes, what was at stake.

They dug deep into the evidence. They weren’t satisfied that the Ministry of Natural Resources (MNR) had sufficiently scrutinized the developer’s plans before issuing it a permit to “harm, harass and kill” endangered species, including the Blanding’s turtle.

They discovered that mitigation measures proposed by the developer to ensure overall benefit to the species were untested and worse, according to evidence presented before them—unlikely to work, particularly for the population at Ostrander Point.

However, the Toronto court ruled that Wright and Gibbs should have given the MNR the benefit of doubt.

“In my view, the Tribunal ought to have assumed that the MNR would properly and adequately monitor compliance with the ESA (Endangered Species Act) permit,” wrote Justice Ian Nordheimer in the decision.

But Wright and Gibbs, after listening to 40 days of testimony and examining nearly 200 documents entered into evidence, concluded they could not make that assumption.

The Tribunal’s error was that it didn’t believe the MNR would adequately look out for the Blanding’s turtle.

Wright and Gibbs had gone backward and forward through the proposals prepared and submitted by the developer and accepted by the MNR. They concluded the “Blanding’s turtle at Ostrander Point Crown Land Block will not be effectively mitigated by the conditions of the REA [Renewable Energy Approval].”

The court didn’t say Wright and Gibbs were wrong about their conclusions, but that they should have “accepted the ESA permit at face value” or explained better why their conclusions were different than the MNR.

“The Tribunal was obliged to explain how the fact that the MNR had concluded under the ESA that the project would lead to an overall benefit to Blanding’s turtle (notwithstanding the harm that would arise from the project) could mesh with its conclusion that the project would cause irreversible harm to the same species,” wrote Justice Nordheimer.

This is the bit that ought to send a cold shiver through Premier Wynne and anyone else who is worries about the welfare of endangered species in this province.

The province’s own Tribunal carefully and studiously examined the MNR’s process by which developers are permitted to “harm, harass and kill” endangered species. They found it inadequate.

But the court countered, saying the Tribunal should have assumed the MNR knew what it was doing, and that the Tribunal’s conclusions should have meshed with those of the MNR’s Endangered Species Act.

The result of this case is that future Environmental Review Tribunals will surely be much narrower in scope. It is unlikely another Tribunal will be as generous and open-minded as Wright and Gibbs were. It is just as unlikely another Tribunal will challenge the MNR’s authority to permit developers to harm, harass and kill endangered species.

Yet we, as ordinary citizens, now have no way of knowing whether or not mitigation measures will work, or that the developer is complying with them. We, like the Tribunal, can only assume they will. This isn’t nearly good enough.

The test of “serious and irreversible harm” is an absurdly high standard with which to determine if these vulnerable creatures merit intervention. It demonstrates rather starkly that the Ontario government is focused on developers’ interests rather than the plight of endangered species.

But this was the closest you and I will get to peering inside the murky world by which the Green Energy Act is administered in this province. Another Tribunal won’t be so bold.

The only window available to ordinary citizens with grave concerns about the industrialization of rural Ontario, has been effectively closed by this decision. The Green Energy Act has gone dark. This is bad for all Ontarians.

rick@wellingtontimes.ca