The Ontario Court of Appeal has ruled that a proposed nine-turbine wind farm in Prince Edward County would cause “serious and irreversible harm” to the Blanding’s turtle, sending the case back to the Environmental Review Tribunal to determine an appropriate remedy.
“It’s a wonderful win on behalf of an endangered species and the first time that the ERT has found against a government approval for a wind farm,” says Chris Paliare of Paliare Roland Rosenberg Rothstein in Toronto, who represented the Prince Edward County South Shore Conservancy, which intervened in the case. “As a society we need to have greater concern for the ever shrinking number of species on the planet. The wind farm applicants can surely find another place in the province to build their wind farm that will not do violence to endangered species.”
But the decision does not necessarily mean that the project will not proceed. The ERT may determine that it can proceed subject to conditions that protect the turtle.
“Hopefully the Tribunal will get the ultimate remedy right,” Paliare says.
The Blanding’s turtle is a semi-aquatic freshwater turtle that lives in northeastern and midwestern North America. It is found here and there in southern and central Ontario and is a threatened species under provincial legislation. The UN has designated the turtle as globally endangered.
The turtle’s reproductive rate is low, and both eggs and newborns have a low chance of reaching maturity due to predators and poaching.
The Court’s decision came after the Minister of the Environment granted Ostrander Point GP Inc. permission to construct the wind farm. Prince Edward County Field Naturalists opposed the project and appealed to the ERT.
The ERT concluded that the project would cause serious and irreversible harm to the turtles and revoked the permit. On further appeal, the Divisional Court set aside that ruling.
The Field Naturalists appealed to the Court of Appeal, which agreed with the Tribunal, finding that the project would cause serious and irreversible harm to the turtles.
At the appeal, Ostrander presented fresh evidence that the new access roads it intended to create would no longer be used by public vehicles. Because the Tribunal’s conclusion of harm arose from this potential use, Ostrander argued, the court should allow the project to proceed rather than sending the case back to the Tribunal to craft a remedy.
“This submission is without merit,” the Court stated. “It is inconsistent with Ostrander’s position, successful on appeal, that the parties should be accorded the opportunity to address remedy. As well, that the Tribunal will allow the project to proceed upon the roads’ closure should not be regarded as a foregone conclusion. I note the Tribunal had evidence of how the proposed access roads would cause harm to the turtle’s habitat quite apart from collisions with motor vehicles.”
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