April 17, 2014

Next step: PECFN asks court to hear its appeal

Posted by Rick Conroy | The Times | April 16th, 2014 | wellingtontimes.ca

The Prince Edward County Field Naturalists (PECFN) have taken the next step in their fight to prevent industrial wind turbines from ever being constructed on Ostrander Point in South Marysburgh. Last week, PECFN, through its lawyer Eric Gillespie, sought leave to appeal a Divisional Court ruling that overturned an Environmental Review Tribunal’s decision to revoke the permit by a subsidiary of Gilead Power Corporation to build nine industrial wind turbines on Crown land at Ostrander Point.

This is just the initial step required to persuade the court to hear the appeal. Gilead will object and the court picks and chooses the cases it deems worthy of an appeal selectively.

Yet PECFN and Gillespie have mounted a persuasive argument—an argument seemingly understood and largely repeated by an appeal court judge last month in granting an order to prevent the developer from clearing the land and preparing for construction.

The complete Leave to Appeal submission is available here.

At the beginning of April, the Divisional Court found that Gilead’s demand for $120,000 legal costs from PECFN was too high and lowered it to $40,000. More importantly, the reason the justices gave was that “clearly the case is of important public interest”.

It is a key point. This is because public interest is one of the criteria the Court will weigh when it decides whether or not to hear PECFN’s appeal.

“We see this as a positive indicator that permission to appeal will be given,” said Myrna Wood, PECFN president. “We will also be able to use this argument for an appeal against paying any legal costs to Gilead or the Ministry. The notice of intention to seek leave to appeal has attracted increasing expressions of support for the South Shore Important Bird Area (IBA). We believe this is an important test of Ontario environmental law and will encourage other environmental and legal organizations to apply to intervene in the appeal.”

The struggle to save Ostrander Point has gained a broader dimension since two other wind turbine projects in the area have been submitted to the government Registry (EBR) for public comment. The White Pines proposal includes 29 turbines dotted across private lands within the IBA surrounding Ostrander Point. Windlectric Inc. plans on erecting 36 turbines across Amherst Island’s natural areas. Residents of Amherst Island have applied to the Superior Court of Justice in Toronto for a judicial review of the Ministry of Environment’s approval of the application. They challenge the company’s claims that its plan has mitigated any harmful effects to wildlife and people prior to construction.

The cumulative effect of proposed turbine projects surrounding eastern Lake Ontario creating a barrier across the eastern flyway of migrating birds and bats is a concern for all naturalists, according to PECFN.

“ If approved, these projects will displace wildlife from shorelines, the most important staging and resting habitats for many species,” said Wood. “Renewable energy will not be ‘green’ if it destroys significant wildlife habitats. Recognition of this fact is demonstrated by two recent project cancellations. British Petroleum has cancelled a project on Cape Vincent across from Wolfe Island. On the Lake Erie Pelee flyway, two proposed projects in Ohio have been cancelled due to the threat of a lawsuit by Black Swamp Bird Observatory and the American Bird Conservancy.”

It may be as late as June before the Court decides if it will hear the appeal.

PECFN raised net proceeds of about $8,000 from a gala dinner and art auction held at the Picton Curling Club on Saturday.

“Thank you to everyone who attended and bought art and to those who had to cancel but left the ticket price as a donation,” said PECFN member Cheryl Anderson. “ Your generosity overwhelms me.”

URL to article:  https://www.wind-watch.org/news/2014/04/17/next-step-pecfn-asks-court-to-hear-its-appeal/