Blanding’s turtles get their day in court this week – three days, in fact – as a case that pits turtles against wind turbines enters a new phase.
The turtles won the first round last year, when an environmental review tribunal blocked a proposal to erect nine turbines on the shore of Lake Ontario at Ostrander Point in Prince Edward County.
The reason: The tribunal ruled that new roads built for access to the turbines would cause “serious and irreversible harm” to the local population of Blanding’s turtles, a threatened species.
After hearing arguments from the Prince Edward County Field Naturalists club, the tribunal revoked the renewable energy permit that wind developer Gilead Power had previously been granted.
The case highlighted the tensions that have developed between some environmentalists and the wind energy industry.
Tuesday the wind power company, Gilead Power, and Ontario’s ministry of the environment were in divisional court to appeal the ruling.
But the turtles won another quick round when the three-judge panel rejected a motion by Gilead’s lawyers to introduce new evidence.
The tribunal had blocked the wind farm proposal because new roads would increase traffic, and provide more access to poachers and predators.
But that premise is now outdated, lawyers for Gilead argued.
The ministry of natural resources, which administers the crown land where the turbines are to be erected, has recently ordered Gilead to put up gates on the new roads, closing them to public traffic.
The gates are part of an over-all “impact monitoring plan” that was set up subsequent to the tribunal ruling.
Normally, new evidence isn’t admitted at appeals before the divisional court, which only addresses matters of law.
Gilead Power lawyer Doug Hamilton argued that “it would amount to the court turning a blind eye to reality” if it ignored the fact that the new roads will be closed to the public.
If the new evidence isn’t admitted, Gilead lawyer Chris Wayland said, all the lawyers involved will be forced to argue the appeal based on “facts” that no longer exist.
But Eric Gillespie, lawyer for the field naturalists, said that Gilead had ample opportunity during weeks of hearings before the tribunal to suggest closing access to the new roads.
It’s too late to introduce new evidence at this stage, he said:
“They just want to change their evidence because they weren’t happy with the outcome” before the tribunal.
Erecting gates will be ineffective, in any case, he said: Snowmobiles and all-terrain vehicles will simply drive around them, and poachers are unlikely to respect them.
The divisional court panel, headed by Justice Ian Nordheimer, quickly rejected Gilead Power’s request to call new evidence, saying it would supply reasons later.
Lawyers will spend Wednesday and Thursday arguing the case, without new evidence.
In written material filed with the court, the environment ministry argues that the environmental tribunal lacked supporting evidence to support its conclusion on turtle damage.
Gilead Power agrees, saying the tribunal had no evidence before it on the turtle population, or on current and projected traffic levels at Ostrander Point.
The field naturalists, on the other hand, argue that the tribunal didn’t go far enough.
They argue that the tribunal should have concluded that in addition to harming turtles, the wind development is likely to harm birds and the special “alvar” ecosystem in the area – a limestone plateau with the barest covering of soil.
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