PRINCE EDWARD COUNTY – The Alliance to Protect Prince Edward County (APPEC) will have to go back to the drawing board in its efforts to stop site preparation at the White Pines Wind Project.
APPEC was forced to withdraw a motion for a stay on site preparation for the 27-turbine project at the Ontario Court of Appeal in Toronto on Wednesday after it was determined the appeal required a panel of three judges to rule, not the solo judge who attended the Osgoode Hall courtroom for the hearing.
“On our arrival we had hoped that Justice Katherine van Rensburg would hear our appeal and our new evidence including aerial photography of the destruction that has occurred at the White Pines project site since wpd began clearing vegetation two days ago,” APPEC president Orville Walsh said. “Instead Sylvia Davis, lawyer for the Ministry of the Environment and Climate Change, cited a ruling from over 50 years ago that only a panel of three judges could hear an appeal of this nature. It became clear at that point that the motion would not be heard until after the legal matter of whether this was properly before the court had been dealt with, with a potentially unfavourable decision.”
Walsh said matters were further complicated when the Environmental Review Tribunal (ERT) released its reasons for denying the group’s original motion for a stay to halt site preparation at various turbine locations.
On March 22, the ERT ruled wpd Canada could proceed with site preparation despite its previous ruling the project would cause serious and irreversible damage to Blandings turtles and Little Brown Bats. At that time, the ERT provided APPEC with no explanation or reasons why it ruled against the motion of stay to delay site work.
Last week, an Ontario Divisional Court judge dismissed another appeal by the group to have work delayed until the ERT provides reasons for its March 22 decision.
“I’m not a lawyer and the legal aspects of this are not always the easiest to decipher, but my understanding is that this can now go back to Divisional Court because we have the ERT’s reasons,” he explained.
Walsh said evidence of Blandings turtle activity in the southern portions of Prince Edward County may provide other options for the group in its efforts to stop work.
“Circumstances have changed significantly and we now know that the turtles have come out of hibernation and (wpd) is not supposed to be there during this period,” he explained. “As we understand it, that now gives us the opportunity to go back to the ERT with this because the turtles are active and are at risk.
“We’re in the midst of making a decision as to which way to proceed and we’re certainly not going to take long doing that because with the turtles active, it’s important to get the work stopped.”
In its ruling, the ERT said, “even if the Tribunal were to assume that some harm would occur, APPEC has not provided convincing evidence to demonstrate that the magnitude of that harm is likely to be significant, widespread or long-lasting in its effects on Blandings turtle.”
Walsh said that all changes with the turtles out of hibernation.
“As I said earlier, with the turtles now moving about, we don’t think there is any question there is potential for serious harm.”
[NWW note: On April 8, the ERT granted a motion by APPEC for an interim stay of the project approval and thus all site activity.]
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