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Turtles holding ground in court – Day 1, 2 and 3 PECFN reports

Turtles gained a small victory over turbines in the first day of  a Toronto appeal court hearing on Tuesday.

The first of three planned days in court, was a promising one for Prince Edward County Field Naturalists and their supporters, as the Ontario Divisional Court panel, led by Justice Ian Nordheimer, ruled that wind company Gilead Power could not introduce new evidence in the appeal.

The Blandings Turtle was hailed the hero last year when the 40-day Environmental Review Tribunal revoked Gilead Power’s renewable energy permit to put nine turbines on Ostrander Point, on the south shore of Prince Edward County. The tribunal ruled the turbines would cause “serious and irreversible harm” to an already threatened species.

Following the ruling, Gilead Power Corporation appealed the decision, then the Ministry of Environment also appealed the decision of its own Tribunal to challenge the small volunteer group Prince Edward County Field Naturalists. The Alliance to Protect Prince Edward County, another small volunteer association, is also appealing the tribunal’s decision dismissing the claim that turbines would cause serious harm to human health.

Tuesday, Gilead lawyer Doug Hamilton, explained they now have a revised permit from the Ministry of Natural Resources (MNR) that requires access roads be closed to the public, and the installation of gates. Gilead says this part of an “impact monitoring plan” blocks public traffic and addresses the Tribunals’ concerns that the project will cause serious and irreversible harm to Blanding’s Turtles.

New evidence is not usually admitted at appeals before the divisional court as it only address matters of law.

PECFN lawyer Eric Gillespie said discussion of fencing and leasing of crown land for access was done between the MNR and Gilead in 2010 and  the issue was not introduced at the Tribunal.

The Justices dismissed the request and reasons are to be given at the same time reasons are given for the main appeal.

“The court room was full to capacity for the first day of the Divisional Court counter appeal,” said Cheryl Anderson, of the PECFN. “There were about 50 supporters of Ostrander Point filling every possible seat,” she noted, thanking all those who made the trip to Toronto as temperatures dipped to -30C.

“The first day, right until about 2 pm, was taken up with the argument about whether or not Gilead should be able to introduce new evidence,” she said. “Eric Gillespie mounted a brilliant argument against allowing new evidence at this point in the proceeding and ultimately the Justices agreed with him… Finally, after the afternoon recess the main appeal began.”

The case continues today and Thursday. The MOE will argue the tribunal lacked supporting evidence to support the decision on harm to turtles. Gilead lawyers will argue the Tribunal erred in its conclusions about turtle numbers, deaths and on proposed traffic levels.

The field naturalists will argue that the tribunal did not go far enought and that the wind project will also likely harm birds and the special alvar ecosystem in the area.

The Alliance to Protect Prince Edward County (APPEC) appeal will be heard, Thursday afternoon.  Eric Gillespie will argue the demands of the Environmental Review Tribunal far exceed the legal test that wind victims are “more likely than not” suffering serious harm to health from wind turbines.

The case is unique in Ontario.  It questions Renewable Energy Act regulations, their interpretation by the ERT and the intent of legislation which removes the right of development determination from local municipalities.

Gilead is also requesting that court costs be assessed against PECFN. The naturalists have raised $124,000 of $220,000 needed to pay for the Tribunal case. They welcome donations at www.saveostranderpoint.org

* * *

DAY TWO: Divisional Court January 22, 2014

Report by Cheryl Anderson, PECFN

Interested observers continued to give up their personal time to attend the Divisional Court hearing today.  About 40 people attended.  It is wonderful how many people have been willing to come from the County in the middle of the week to support PECFN.

Sitting in the Court one begins to wonder about the whole process.  PECFN is here to defend the decision of the Environmental Review Tribunal.  The Tribunal is not in Court.  The Ministry of Natural Resources is not in Court and yet the decision of that ministry to allow species at risk to be killed, harmed or harassed at Ostrander Point is being discussed at length.  The Tribunal was a creature of the MOE and yet the MOE trying to prove that the Tribunal made the wrong decision.  Shouldn’t the MOE be supporting its own creation?  Myrna (PECFN) asks “Are we going down the rabbit hole here?”

The Gilead and Ministry of Environment lawyers spent the morning discussing whether the Environmental Review Tribunal’s decision was in conflict with the Environmental Protection Act and why there was no evidence given about the numbers of Blanding’s turtles at Ostrander Point, the amount of vehicular traffic or the potential increase in vehicular traffic if the project is approved.  Throughout, the 9 turbine Industrial Wind Turbine project at Ostrander Point was described as a” Public Infrastructure Project”.  As you can imagine, this description made the majority of the observers gag!  The next topic was the suggestion that the Tribunal should have considered alternatives to the project – i.e. made a provision that the roads be closed to the public and offered to approve the project with that condition.   Again there was protracted discussion about the relationship between the ERT and the ESA permit issued by the MNR.

Eric Gillespie spent the afternoon responding to the arguments of the MOE and Gilead.  At this juncture we have to say a very special “Thank you” to Natalie Smith.  Natalie spent the fall analysing the ERT decision and preparing for the counter appeal by Gilead and the MOE.  She has been at Eric’s side throughout and provides the extra knowledge to make sure that we are successful in defending the appeal.

Justice Nordheim put a little wrinkle in the proceedings when he asked Eric to show him where in the ERT analysed the difference between “serious” and “irreversible”.  He wanted to be able to follow the ERT’s reasons for coming to the decision that the Gilead project would cause irreversible damage to the Blanding’s Turtles at Ostrander Point.  Of course, Eric and Natalie were able to find several instances in the decision that showed the analysis of the ERT and how they came to the decision to turn down the Gilead project.

The appeal continues Thursday morning at 9:30.  The APPEC appeal is scheduled for Thursday afternoon.  I will report on the final few hours of the PECFN appeal tomorrow evening when I get back to the County.

Thank you to everyone for your continued support and for the encouraging messages.

Divisional Court January 23, 2014

By Cheryl Anderson
This report only deals with the first part of the day today.  The PECFN counter appeals and cross appeals and the intervener South Shore Conservancy was completed in the late morning and the afternoon was devoted to the APPEC appeal.  Your PECFN contingent wended their weary way home after lunch.

Chris Paliere, legal representative for the SSC spoke first.   Mr. Paliere gave a succinct and direct analysis of the legal issues SSC has with the appeal of the ERT ruling.  Pointing out that in order for the endangered species permit to be granted expertise should be expected from the MNR.  Mr Paliere asserted that there was no evidence that the permit granting was anything more than a paper process.  The Tribunal had the expertise to interpret broad undefined terms in the Green Energy Act and the Renewable Energy Approval.  The Tribunal therefore was correct in only considering that the ESA permit was in effect.  Therefore the conclusions reached by the Tribunal must be accepted.

This argument was countered by Mr. Wayland (correct spelling this time) and Mr. Hamilton for Gilead.  The arguments centre on whether the ESA permit to kill harm and harass supersedes the Renewable Energy Approval of the project.  In other words, the ERT cannot deny the project because the ESA permit is in place – and since the MNR has given permission to kill harm and harass endangered species then the ERT cannot find serious and irreversible harm to a species.  Mr. Paliere was adamant that there are two separate issues and that the situation amounted to “poly-centric decision making”.

The PECFN cross appeal dealing with our contention that the ERT did not properly consider the evidence showing serious and irreversible harm to the Birds and Alvar was begun by Natalie Smith, who presented the facts in the case.  Eric Gillespie carried on with the legal arguments.  There was a discussion started by Justice Nordheimer regarding the damage done to Alvar by the Department of National Defence use of the areas of the South Shore in the early 1950’s for munitions testing.  Eric’s assertion that the DND damage was minimal was countered by both Sylvia Davis for the MOE and Mr. Wayland for Gilead.  They were trying to say that the damage by the munitions testing was in some way analogous to the damage that would be caused by wind turbines and roads.  Following from the argument was the assumption that when the IWT’s were removed after twenty years the Alvar would regenerate similar to the regeneration after the munitions testing.

According to Eric’s submission, “in dealing with the issue of birds the Tribunal failed to provide and interpretation of scale”.  In other words if there are many birds of a species that is abundant on the site then chances are that there will not be serious and irreversible harm to that species.  However, if there is a bird or a few birds of an endangered species on the site then the chances of severe and irreversible harm to that species become greater.  The Tribunal ruled, in spite of excellent witness testimony to the contrary, that PECFN did not prove serious and irreversible harm to birds as a result of the IWT project.  Eric’s submission was that if the Tribunal had taken “scale” into consideration their decision would have been to deny the project on that basis.

As you can see these legal arguments can become complicated and sometimes are really best left to legal minds to interpret.  Suffice it to say that Eric and Natalie were pleased at the end of the day with the way their arguments were received by the Court.

We will have to wait to see if the Divisional Court will let the ERT ruling re: Blanding’s Turtles stand and if they will reverse the ERT ruling on the Birds and Alvar as requested by PECFN.
Thank you as always for your continuing support as we fight to save Ostrander Point.

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  1. Cheryl Anderson says:

    Catherine: If you have some $$ to donate to the cause – it would be great. We still need a lot of money to pay the bills. More fund raisers will be coming up in the spring too. Keep watching and join in to help us Save Ostrander Point.

  2. Catharine Ogilvie says:

    As a new resident of the County I want to thank everyone who has been involved in trying to save our paradise from the wind turbine projects. I would love to help, if you have any suggestions on how I can I would be thankful to hear from you.

    Thank you,
    Catharine
    catharineogilvie@gmail.com

  3. Olmanonthemtn says:

    John Ralston Saul: ‘Whenever governments adopt a moral tone – as opposed to an ethical one – you know something is wrong.’

  4. Mark says:

    What infuriates me the most is that the government can use our own tax dollars to appeal a decision by their tribunal. Can use our tax dollars for big lawyers to fight the will of the people they were placed in power to represent. That their Ministry of Natural Resources would permit the killing of an endangered species that they are entrusted to protect in order to flog the ill planned Green Energy Act. I am no fan of Tim Hudak as his party deregulated Ontario Hydro and sent us down this path but we need him to takeover if for nothing else to stop this insanity at once.

  5. Cheryl Anderson says:

    I apologize that I left out 3 words in the description of Jan 23. Second Paragraph, second line should read:

    “issues the SSC has with the APPEAL OF THE ERT ruling”

    sorry about any misperception my words may have caused.

  6. W. Garry says:

    Do they really want to put up gates and fences to keep mother nature in or out?

    None of the turbines on Wolfe island are gated or fenced that I have seen.

    They must realize that gates can be locked by others.

    The nonsense continues at our expense.

    wgs

  7. Robin Knight says:

    Watch as every day at the World Economic Forum in Davos, and the EU Economic Headquarters in Brussels, the Renewable Energy Crowd are running for cover as all the promised subsidies are being slashed throughout the Realm. If they can no longer promise Investors predicted and guaranteed returns forever, or at least 20 years, on their investments at the expense of the rural taxpayers, environment, species-at-risk, historic landmarks and countryside views, etc. then the whole Ponzi scheme of “Greed Energy” will bite the dust! That, and the fact that manufacturing still flees Europe and North America for the worst pollutants in China and India, is enough to make the common man choke on the churning gut and rising bile brought on by the Travesty of Democracy that is taking place. We are being steamrollered. Along with Germany,UK,Spain,Italy,France, read ONTARIO for worst offenders. What we are seeing in the actions of MOE, MNR and it seems all the other Ministries of this Provincial Government is Criminal at this point. They are RUSHING through PERMITS, FIGHTING against us Taxpayers in a totally CORRUPT and BULLYING manner that is breathtaking in it’s transparency and audacity.
    Hopefully PECFN will win the day in this Precedent Setting Case and the Liberals will be relegated to the trash heap of history.

  8. Chris Keen says:

    And let’s not forget the members of OPSEU – including the provincial NDP office staff – who are in this with Gilead. No wonder Andrea Horwath has little if anything to say about this “green” energy madness.

  9. Doris Lane says:

    Since day one of the GEA I have been unable to understand what the province is trying to do to Ontario. Oh course it is about money–money for the rich and causing the average citizen untold grief as we pay for these huge IWT’s which destroy our province in so many ways and cost us money as we pay people to take the electricity they produce because we do not need it and have no way to store it.
    It would seem that the province does not have any idea about what they are doing
    Is there no one in Ontario that has any sense about what should be happening?
    This whole thing is a miscarriage of justice against the citizens of Ontario.
    Let us hope the three judges can sort out this mess.
    We asking a lot of 3 people to understand what a mess the liberal government has got us into.
    All the best to the PECFN who have put up this fight for our County and the Province in General
    We await the decision of the divisional court with baited breath.

  10. Douglas Moran says:

    WTF is this BS about Gillead wanting PECFN to pay their expenses!
    They and this corrupt Lying Liberal regime should be paying all legal expenses and all the time put in by all the volunteers who have fought and won this case.
    They should also be on the hook to pay for any damages they have already caused at Ostrander point.
    Ok now I’ll read the second day report.

  11. Couldn’t agree with you more, Robin. Prison time for the miscreants pushing this scam, is well overdue! The health and well being of the citizens of rural Ontario, has been sold out to the wind pushers, and we will not stand for it!

  12. Robin Knight says:

    The Directors of both the MOE and MNR, and all their minions and underlings, should be ashamed of themselves on every level. They are making a mockery of us, the taxpayers and citizens of Ontario who have to pay these S*BS. And now they want pension bloody subsidies over my dead body. In addition, The Stench of Corruption emanating from Queen’s Park and these Ministries is now totally noxious. You can see and smell the noxious gasses from here in Prince Edward County every day. Having sat through the ERT last year, can imagine it must be toxic in the court room.

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