Turtles gained a small victory over turbines in the first day of a Toronto appeal court hearing on Tuesday.
The first of three planned days in court, was a promising one for Prince Edward County Field Naturalists and their supporters, as the Ontario Divisional Court panel, led by Justice Ian Nordheimer, ruled that wind company Gilead Power could not introduce new evidence in the appeal.
The Blandings Turtle was hailed the hero last year when the 40-day Environmental Review Tribunal revoked Gilead Power’s renewable energy permit to put nine turbines on Ostrander Point, on the south shore of Prince Edward County. The tribunal ruled the turbines would cause “serious and irreversible harm” to an already threatened species.
Following the ruling, Gilead Power Corporation appealed the decision, then the Ministry of Environment also appealed the decision of its own Tribunal to challenge the small volunteer group Prince Edward County Field Naturalists. The Alliance to Protect Prince Edward County, another small volunteer association, is also appealing the tribunal’s decision dismissing the claim that turbines would cause serious harm to human health.
Tuesday, Gilead lawyer Doug Hamilton, explained they now have a revised permit from the Ministry of Natural Resources (MNR) that requires access roads be closed to the public, and the installation of gates. Gilead says this part of an “impact monitoring plan” blocks public traffic and addresses the Tribunals’ concerns that the project will cause serious and irreversible harm to Blanding’s Turtles.
New evidence is not usually admitted at appeals before the divisional court as it only address matters of law.
PECFN lawyer Eric Gillespie said discussion of fencing and leasing of crown land for access was done between the MNR and Gilead in 2010 and the issue was not introduced at the Tribunal.
The Justices dismissed the request and reasons are to be given at the same time reasons are given for the main appeal.
“The court room was full to capacity for the first day of the Divisional Court counter appeal,” said Cheryl Anderson, of the PECFN. “There were about 50 supporters of Ostrander Point filling every possible seat,” she noted, thanking all those who made the trip to Toronto as temperatures dipped to -30C.
“The first day, right until about 2 pm, was taken up with the argument about whether or not Gilead should be able to introduce new evidence,” she said. “Eric Gillespie mounted a brilliant argument against allowing new evidence at this point in the proceeding and ultimately the Justices agreed with him… Finally, after the afternoon recess the main appeal began.”
The case continues today and Thursday. The MOE will argue the tribunal lacked supporting evidence to support the decision on harm to turtles. Gilead lawyers will argue the Tribunal erred in its conclusions about turtle numbers, deaths and on proposed traffic levels.
The field naturalists will argue that the tribunal did not go far enought and that the wind project will also likely harm birds and the special alvar ecosystem in the area.
The Alliance to Protect Prince Edward County (APPEC) appeal will be heard, Thursday afternoon. Eric Gillespie will argue the demands of the Environmental Review Tribunal far exceed the legal test that wind victims are “more likely than not” suffering serious harm to health from wind turbines.
The case is unique in Ontario. It questions Renewable Energy Act regulations, their interpretation by the ERT and the intent of legislation which removes the right of development determination from local municipalities.
Gilead is also requesting that court costs be assessed against PECFN. The naturalists have raised $124,000 of $220,000 needed to pay for the Tribunal case. They welcome donations at www.saveostranderpoint.org
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DAY TWO: Divisional Court January 22, 2014
Report by Cheryl Anderson, PECFN
Interested observers continued to give up their personal time to attend the Divisional Court hearing today. About 40 people attended. It is wonderful how many people have been willing to come from the County in the middle of the week to support PECFN.
Sitting in the Court one begins to wonder about the whole process. PECFN is here to defend the decision of the Environmental Review Tribunal. The Tribunal is not in Court. The Ministry of Natural Resources is not in Court and yet the decision of that ministry to allow species at risk to be killed, harmed or harassed at Ostrander Point is being discussed at length. The Tribunal was a creature of the MOE and yet the MOE trying to prove that the Tribunal made the wrong decision. Shouldn’t the MOE be supporting its own creation? Myrna (PECFN) asks “Are we going down the rabbit hole here?”
The Gilead and Ministry of Environment lawyers spent the morning discussing whether the Environmental Review Tribunal’s decision was in conflict with the Environmental Protection Act and why there was no evidence given about the numbers of Blanding’s turtles at Ostrander Point, the amount of vehicular traffic or the potential increase in vehicular traffic if the project is approved. Throughout, the 9 turbine Industrial Wind Turbine project at Ostrander Point was described as a” Public Infrastructure Project”. As you can imagine, this description made the majority of the observers gag! The next topic was the suggestion that the Tribunal should have considered alternatives to the project – i.e. made a provision that the roads be closed to the public and offered to approve the project with that condition. Again there was protracted discussion about the relationship between the ERT and the ESA permit issued by the MNR.
Eric Gillespie spent the afternoon responding to the arguments of the MOE and Gilead. At this juncture we have to say a very special “Thank you” to Natalie Smith. Natalie spent the fall analysing the ERT decision and preparing for the counter appeal by Gilead and the MOE. She has been at Eric’s side throughout and provides the extra knowledge to make sure that we are successful in defending the appeal.
Justice Nordheim put a little wrinkle in the proceedings when he asked Eric to show him where in the ERT analysed the difference between “serious” and “irreversible”. He wanted to be able to follow the ERT’s reasons for coming to the decision that the Gilead project would cause irreversible damage to the Blanding’s Turtles at Ostrander Point. Of course, Eric and Natalie were able to find several instances in the decision that showed the analysis of the ERT and how they came to the decision to turn down the Gilead project.
The appeal continues Thursday morning at 9:30. The APPEC appeal is scheduled for Thursday afternoon. I will report on the final few hours of the PECFN appeal tomorrow evening when I get back to the County.
Thank you to everyone for your continued support and for the encouraging messages.
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