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Naturalists head to Court of Appeal

Monday and Tuesday the Prince Edward County Field Naturalists will be attending their final appeal to prevent Gilead Power and the Ministry of the Environment to put wind turbines at Ostrander Point. The PECFN is defending the Environmental Review Tribunal ruling that denied the MOE approval of Industrial Wind Turbine development at Ostrander Point. The case is to be heard in the Appeal Court of Ontario, Osgoode Hall.

“We expect PECFN to be well represented on the spectators’ benches with Turtle shirts in evidence,” said president Myrna Wood.

The PECFN case and intervenors (Nature Canada and South Shore Conservancy) are to be heard on Monday.  Wind developer Gilead Power and the MOE with intervenor Canadian Wind Energy Association is to be heard on Tuesday with a reply allowed for PECFN afterward.

The Naturalists began their opposition in 2007 believing the south shore of the County “is the wrong place for wind turbines” – an important area to migrating birds, to bats and butterflies. It contains areas of natural and scientific interest, provincially significant wetlands, globally imperilled Alvar habitat and is the home and breeding grounds of avian, reptilian and amphibian species at risk.
PECFN has continued its fundraising efforts to pursue the battle through the courts. About $193,000 has been raised to date toward a $220,000 goal.

Two recent events included the viewing of “Vanishing Legacies” a film night featuring Suzanne Pasternak’s documentary about the historical Prince Edward County fishery and a presentation by Marc Seguin detailing the lighthouses of the South Shore and his attempts to have them designated as historical structures.  This week, a sold out fish dinner was hosted at the Drake Devonshire in Wellington.  David Maracle and Kris Tischbein provided a brief musical performance and Pasternak’s documentary was screened again.

“We are delighted with the support we have received from the County and from all over Canada,” said Wood. “These two successful events show that citizens realize the importance of preserving the habitat of the South Shore.  We are confident that the Court of Appeal will agree”.

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  1. Gary says:

    The justices questions are concerning. You do not have to be a rocket scientist to understand that a threatened species would be adversely impacted by the development of wind facories. When does common sense prevail in this or does lining the pockets of wind companies with taxpayer $$ for unreliable energy we do not even require trump

  2. Jackie Soorsma says:

    This is a write up as I received it. 10 Dec. 2014

    This is an update on the 2 day hearing at the Supreme Court in Toronto Mon Dec 8 and Tues. Dec 9 from PECFN’s Cheryl Anderson

    It was an amazing 2 days and we came away with the certainty that the Appeal Court judges have done their homework and understand the issues about the critical habitat, road dangers and predation and poaching dangers to the Blanding’s Turtle if the Ostrander Point crown Land Block is opened to development. I am sending you 2 write ups – one from Colin Perkel from the Canadian Press who spent day 1 in Court and one from Garth Manning summarizing day 2.

    Here is Colin Perkel from the Canadian press’s story from the first day court

    TORONTO — An expert tribunal was entitled to conclude a proposed wind farm would devastate a population of already threatened turtles, Ontario’s top court heard Monday.

    The case, which pits turtles against turbines, could have widespread repercussions as to how endangered species are protected across Canada, and raises questions about the protection of unspoiled areas
    .
    At issue is a proposed nine-turbine wind farm at Ostrander Point south of Belleville on the shore of Lake Ontario.
    Prince Edward County Field Naturalists Club had successfully argued before the province’s environmental review tribunal that the project on the 324-hectare site would threaten Blanding’s turtles in the area.

    Gilead Power, through its Ostrander Point Wind Energy, had Divisional Court overturn that decision in February. It argued the tribunal had made a half-dozen errors in concluding the project would cause “serious and irreversible” harm to the turtles.

    Addressing the panel in the packed courtroom, lawyer Eric Gillespie, who speaks for the naturalists, pleaded with the three justices to defer to the review tribunal.

    “The tribunal was squarely within its mandate,” he said. “We are simply asking this court to respect and uphold that original decision.”
    Gillespie noted the tribunal heard evidence over 24 days but essentially based its decision on four duelling experts on the long-lived Blanding’s turtles.

    The main issue, according to the tribunal, was that five kilometres of access road needed would lead to more turtle road kill, poaching and predation, and degradation of critical habitat.

    The turtles, which are already in decline, can take up to 25 years to mature and survive for 75 years, court heard.
    “It’s a highly vulnerable population,” Gillespie said.

    Even a single individual matters, he said, when you’re dealing with a small local population.

    In an interview, Gillespie said the Divisional Court decision — if allowed to stand — would harm protections for Canada’s threatened and endangered species given the limited data that exists for most of them.

    In court, the justices were clearly troubled by the fact no detailed turtle population study exists.

    They repeatedly questioned how the tribunal could rely on expert evidence about the impacts of increased turtle mortality rates without knowing how many of the critters there are.

    “What good is the (expert) opinion?” Justice Gloria Epstein asked.

    Gillespie warned against turning the Appeal Court into a “science academy.”

    “We have to rely on the opinions of experts,” he said. “The tribunal did exactly what an expert tribunal is entitled to do.”

    Another lawyer, Chris Paliare, said Divisional Court “subverted” the review tribunal by suggesting, as the project proponents maintain, there was no evidence as to what “irreversible harm” means.

    “It’s parsing beyond belief,” Paliare said.

    “The evidence is overwhelming this project will cause serious and irreversible harm.”

    Gilead, which will continue arguing its case on Tuesday, maintains it can do what’s necessary to protect the turtles.

    Stephen Hazell, a lawyer with Nature Canada which is intervening in the case, disputed that.

    The proposed access roads are “directly” in the turtles’ habitat, Hazell said as the justices pored over maps of the area.
    “That is irreversible harm.”

    However, Gilead lawyer Neil Finkelstein said the tribunal didn’t conclude that access roads would necessarily be harmful to the turtles.
    The tribunal’s reasoning, he said, simply didn’t hold together.

    “Divisional Court was correct that the tribunal’s decision was unreasonable and should be set aside,” Finkelstein said.

    and Garth Manning’s analysis of the second day at Court
    Now we know what the stacks of paper before the 3 Judges and 12 lawyers were all about. During the day, the lawyers for Gilead and for the Ministry spent a mind-numbing three hours and six minutes concentrating on one theme. To do so, each constantly referred the Judges to pages among the many thousands in those stacks, which contained the complete transcript of the proceedings before the Environmental Review Tribunal and the Divisional Court.

    The theme on which they concentrated was this: the duty of a Tribunal and of a Court is -as a matter of law – to be reasonable in arriving at decisions. In their view, the decision of the ERT was unreasonable on its face and therefore the decision of the Divisional Court to overturn it was its reasonable duty. In advancing this view, it was necessary constantly to refer to many different phases of evidence given at the ERT and to comments of the Tribunal members. This they did for the period indicated. In particular, the evidence given by Dr. Beaudry before the ERT and its effect on the Tribunal came in for scathing criticism.

    Towards the end of a long day, the lawyer for CanWea (the trade association of the wind industry) struck a different and shorter note by contending that the decision made by the ERT was completely beyond its powers to make, and that it should have been made in the public interest, the requirement made of the Director under the Green Energy Act in whose shoes, it was said, the ERT stood.

    Rebuttal remarks were provided by Chris Paliare, counsel for SSC, directed at the mortality to the turtles which would be caused by the nine access roads required, the amount of concrete and heavy equipment which would be moved along those roads and installed in, under and on the land. Eric Gillespie finished the hearing on behalf of PECFN with additional comments demolishing so-called points made by the opposition.

    Justice Cronk thanked all counsel for their helpful submissions (a normal courtesy) and asked them to return in one week for a preliminary discussion about costs.

    Her final remark was possibly the most intriguing of the day – “our decision will not be ready before Christmas”. Given that the Court of Appeal decisions normally take up to six months, could this mean that it might be available in the first month of the New Year?

    We will see; meanwhile those of us in the County who feel strongly can rest assured that our concerns were dealt with by a highly competent Bench in an open and transparent manner, and by outstanding counsel for PECFN, SSC and Nature Canada.

    And finally from this correspondent on behalf of us all, congratulations to Prince Edward County Field Naturalists and to South Shore Conservancy for courage, devotion and a sense of what is right far above the norm.

    Garth Manning.

    Cheryl Anderson

  3. cementman says:

    What happened in court? Things are pretty quiet

  4. Eric Pierce says:

    “It is horrifying that we have to fight our own government to save the environment.”

    Ansel Adams

  5. Wolf Braun says:

    Will keep fingers crossed for a successful appeal. Good luck PECFN. 🙂

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