Tribunal grants stay of activities to consider APPEC’s arguments
It was a roller coaster week in the battle between the wind energy developer, wpd Canada, and the Alliance to Protect Prince Edward County (APPEC) and its supporters seeking to keep industrial wind development out of the County.
On Tuesday, the developer began clearing swaths of land adjacent to Army Reserve Road in South Marysburgh. On the same day, an Ontario court said it would not hear an appeal of a ruling, made by the White Pines Tribunal, refusing to grant a stay of activities. The Court said that without the reasoning of the Tribunal, it had no basis to understand whether its determination was fair.
On Wednesday, the Tribunal issued the reasons for its ruling not to stay activities. APPEC and its lawyer, Eric Gillespie, made an immediate appeal to the Tribunal renewing its request for a stay on the basis that the Blanding’s turtle was on the move and therefore exposed to harm by the land-clearing equipment.
Late on Friday, the Tribunal granted a temporary stay stopping all work on the White Pines site.
WHY THE TRIBUNAL REFUSED
In its initial ruling, the Tribunal panel, consisting of Marcia Valiante and Hugh Wilkins, found that APPEC had failed to show how the “limited” land clearing work by the developer would cause “irreparable” harm to the Blanding’s turtle. Further it found, in terms of balance of convenience, that a stay of activities would cause more financial harm to the developer than negative impacts on the Blanding’s turtle.
The onus was upon APPEC to prove the land clearing would kill Blanding’s turtles. The Tribunal, wasn’t convinced. That would change.
“The evidence provided for the motion does not demonstrate that the proposed activities will cause any increase in turtle mortality or the destruction of turtle habitat,” wrote Valiante and Wilkins in their decision. “Much of the evidence submitted amounts to speculation about what might occur, rather than convincing evidence that an increase in mortality will, more likely than not, occur. For example, there is no basis for the allegation that the proposed activities will materially increase the number of vehicles on the roads between now and May 1, leading in turn to an increase in collision mortality.”
Further, the Tribunal contended the Renewable Energy Approval conditions were likely sufficient to protect the turtles.
Armed with the Tribunal’s reasoning, Gillespie sought and received an emergency hearing before the panel to appeal their decision on Thursday. But first, he needed to stop work on the site.
To do this, Gillespie had to have fresh evidence. A rehash of old arguments wasn’t going to work. He brought to the Tribunal photographic images showing the wide swathes of land that had been cleared during the previous two days. He brought an affidavit from a Blanding’s turtle expert that animals are out of hibernation and moving across the project site. He also presented letters from groups such as the Canadian Wildlife Federation.
Late Friday afternoon, the Tribunal agreed to grant a temporary stay until a full motion hearing could be scheduled, which the panel indicated would happen as soon as possible.
Months, indeed years, of legal wrangling has resulted in a pile of legal bills. APPEC is making a general appeal for financial support to continue the fight for this community.
Donations can be made by PayPal or credit card on APPEC’s website www.appec.ca. Cheques may be made payable to the South Shore Appeal Fund and mailed to the Alliance to Protect Prince Edward County, P. O. Box 173, Milford, ON K0K 2P0.
Time may be running out for wpd Canada. Barred from doing any development and construction work on the site between May 1 and October 15, the developer was scurrying to get as much land cleared as possible before the end of April. It appeared to be successful at clearing at least three turbine sites.
The developer may, however, face a more crucial time problem. As reported exclusively in The Times last week, Mayor Robert Quaiff and former North Perth councillor Warren Howard have examined the timeline prescribed by the province when it granted wpd Canada a power purchase agreement (PPA) in 2010.
Quaiff and Howard contend that the White Pines project must be constructed and operating by June or it risks forfeiting its contract.
This view appears to have been corroborated, somewhat, by the developer’s lawyers before the Tribunal last month. They argued the stay should be refused, in part, due to “significant financial harm” that would result if the project is delayed.
“It is already at risk of failing to meet its contractual commitments to the Independent Electricity System Operator (IESO),” wrote Valiante and Wilkins in their stay decision filed on Wednesday, “which could cause it to have to make liquidated damages payments to the IESO or possibly have its contract terminated.”
wpd Canada’s Kevin Surette rejects this interpretation of its contractual obligations.
“No, that’s not wpd’s understanding of the timeline,” wrote Surette.
He added that he expects the land clearing to begin again in a matter of days.
“A temporary stay has been issued by the ERT [Environmental Review Tribunal] based on information initially presented by APPEC. Both sides will submit additional information to the Tribunal by the end of the week, and the panel has indicated they intend to deal with this matter fairly quickly,” explained Surette.
Meanwhile over at Ostrander Point
Tribunal dismisses motion by developer that it be disqualified from making its ruling on Ostrander Point industrial wind project
The Environmental Review Tribunal that revoked the Renewable Energy Approval for the wind project on Ostrander Point has dismissed a motion made by the developer claiming adjudicators Robert Wright and Heather Gibbs were biased.
In dismissing the appeal, the Tribunal noted that that each of Ostrander’s allegations fails individually due to lack of evidence and lack of any objective foundation.
The developer’s lawyers alleged too that the Tribunal’s decision not to accept the Ministry of the Environment and Climate Change’s (MOECC) employee Karen Bellamy as an expert witness was an example of this bias. MOECC lawyers had wanted Ms. Bellamy qualified as an expert “biologist in species conservation and management.” PECFN’s lawyer had objected that her qualifications did not relate to the opinion offered in her witness statement.
The Tribunal ruled that Bellamy “does not have expertise in relation to the opinion she proposes to give; i.e., the impact of the proposed REA conditions on the particular endangered species here. The evidence is that she relies on others at MNRF for that specific expertise. For example, we just heard from Mr. Crowley, upon whom she relies.”
Mr. Crowley’s name would come up again later in the decision.
The developer alleged that the Tribunal had allowed the hearing to “languish.” That these delays were, in effect, a form of bias against the developer.
The Tribunal noted in its decision that the Divisional Court had determined that new evidence could be introduced into the remedy hearing. But in those hearings, it was the developer who argued that only it was allowed to submit new evidence. It would take 11 teleconference calls, eight days of evidence and oral submissions and “volumes of written submissions” before the developer’s motion was dismissed.
The Tribunal also pointed to complications arising from “a lack of disclosure by MOECC witnesses.”
The hearings last fall had to be adjourned for two months after “it became apparent in cross-examination that Mr. Crowley had not properly disclosed relevant documents in his possession, power or control relating to the Project’s impact on [the] Blanding’s turtle, and his prior involvement in the ESA [endangered species act] permit process. The documents had not been disclosed for the original hearing, nor at the Divisional Court or the Court of Appeal.”
The Tribunal ruling comes very close to suggesting the MOECC withheld evidence.
“While Mr. Crowley is an employee of MNRF and it is not a party to the proceeding, the MOECC’s Director is a party and it called MNRF witnesses to testify in the original hearing about the ESA permit process and the Blanding’s turtle. Some of the documentation that was disclosed by Mr. Crowley for the first time on the hearing of the remedy matter was correspondence that was sent, or received, by the MNRF witnesses who did give evidence at the original hearing.”
The Tribunal wrote that it takes the issue of apprehension of bias very seriously and has carefully considered the arguments on this issue.
“The Tribunal has found that each of Ostrander’s allegations fails individually due to lack of evidence and lack of any objective foundation. The Tribunal has further found that the allegations were raised late in the process and are based on nothing more than conjecture and surmise.”
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