Turtles and wind turbines head for what’s likely to be a final legal showdown Monday in Ontario’s highest court.
At stake: The fate of a proposed wind farm on Ostrander’s Point at the southeasterly tip of Prince Edward County.
Balanced against it – the well-being of Blanding’s turtle, a rare reptile that prowls the point’s marshes and meadows.
It’s an odd-seeming case, pitting naturalists against green energy. It will test the laws and regulatory regime set up to approve – or challenge – green energy projects.
The Prince Edward Field Naturalists Club is leading the fight against the nine-turbine wind farm at the point.
The club’s long name belies its small scale.
“We started out with as six little old ladies,” laughs Cheryl Anderson. “Now we’ve got eight little old ladies.”
But, she adds quickly, they’ve managed to rally support from across the county – and the country – to chip in with donations toward the estimated $220,000 legal cost of the case.
They’re trying to protect the point – a former military exercise area that for decades has been left to the birds, bees, bats, butterflies and reptiles.
The point, they argue, is an important take-off and landing site for migratory birds and butterflies crossing Lake Ontario.
It also contains rare and sensitive plant habitat, they contend – habitat that could be disrupted by the construction of turbines and the access roads leading to them.
An environmental review tribunal zeroed in on a single species – Blanding’s turtle – when it heard arguments for and against the proposed wind farm.
It ruled that access roads would increase traffic in the area, and cause “serious and irreversible harm” to the population of Blanding’s turtle, which is listed as a threatened species.
That blocked the permit that the wind developer – Gilead Power, through its unit Ostrander Point Wind Energy – had obtained from the provincial government.
And it touched off a court battle that saw Gilead successfully appeal the tribunal’s ruling in divisional court, which said the tribunal had made six errors in law, and set a side the tribunal’s ruling.
The naturalists and their allies then took the fight to Ontario Court of Appeal.
Much of the legal fight devolves onto technical legal issues.
But Gilead vice president Mike Lord says the company has addressed the over-arching question of protecting Blanding’s turtle.
First, he noted in an interview, the company’s permit prohibits construction activity from taking place between May 1 and Oct 15 – the time when turtles are most active, and would be at risk from traffic moving across the site.
Second, he said, Gilead has agreed to install gates on the roads it will build to build and then service the turbines.
“What Gilead was able to do was come up with an access control plan which prevents public vehicles from using the site,” he said.
“So we don’t feel there’ll be any impact to the Blanding’s turtle.”
(Installing the gates was agreed to only after the environmental tribunal had made its ruling – a point of timing that will be a matter of contention in the appeal.)
Lord says Gilead has been diligent in protecting all wildlife at the site.
“We did four years worth of study out there on turtles, endangered species, birds and bats and that sort of thing,” he said.
“We feel we’ve got a really good handle on what’s at the site.”
Gilead has acquired and will preserve a 100-acre tract to the north of the wind farm development, he said. It’s also an area of importance to turtles and birds.
Anderson of the field naturalists says the big issue is protecting scarce undeveloped land along the Lake Ontario shoreline,
“If we can’t preserve this small piece, then it just seems that all of these things that we say are important to us – about bio-diversity and habitat preservation and being a green Ontario – mean nothing,” she said.
The naturalists have the backing of Nature Canada – a conservation organization that is generally in favor of green energy.
But projects still have to be examined, Nature Canada’s Stephen Hazell said in an interview.
“We are here because we’re a voice for nature” said Hazell.
“Renewable energy is important, but in our view wind energy projects have to be appropriately sited. And in this case we have a project being proposed in an important wildlife area, very important to birds that cross the lake.”
“And we know from the Wolfe Island project there are lots of birds getting killed by turbines.”
Gilead also has supporters, including Ontario’s ministry of the environment.
The ministry says in its brief that the tribunal didn’t have to shut the project down, once it found that the turtles would be harmed.
The tribunal should have heard arguments about whether the harm could be mitigated, rather than blocking the project completely, it argues.
The Canadian Wind Energy Associations has also filed a brief on Gilead’s behalf.
In a pleading that only a lawyer could love, it argues that the tribunal erred when it considered whether the project would cause “serious and irreversible harm” as a single package. It should, the brief argues, have considered “serious harm” and “irreversible harm” separately.
The naturalists’ Anderson says her group is not backing down.
“To us it’s not about the money. It’s about saving a piece of very important land,” she said.
“I guess we’ll do whatever we gotta do, aside from posing naked for a calendar – which I won’t do.”
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