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Turtles topple turbines in Ontario’s top court

Slow and steady wins as Ontario’s top court has ruled in favour of turtles over turbines at Prince Edward County’s south shore.

The Ontario Court of Appeal has reversed a lower court ruling regarding a Renewal Energy Approval of the nine turbine Ostrander Point industrial wind project. The decision reinstates the key initial finding of the Environmental Review Tribunal (ERT) that “serious and irreversible harm” to threatened Blanding’s Turtles will occur if the project operates as approved.

“We’re very pleased. The court has ruled in favour of protecting the environment, which is what we’ve asked for throughout,” said Myrna Wood president, Prince Edward County Field Naturalists.

The decision does not necessarily mean that the project will not proceed as the ERT may determine that it can proceed subject to conditions that protect the turtle. However, there is no guarantee of approval for the project to proceed with roads closed as the court stated the “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.”

“The decision is undoubtedly important,” said Eric Gillespie, PECFN legal counsel. “This is the first renewable energy case to reach the Court of Appeal. The Court has supported our client’s fundamental concerns and affirmed a number of legal principles that clearly will be relevant to other appeals.”

The court also found Gilead Power and the Ontario Ministry of the Environment did not get a hearing of their proposal for a different remedy and that the Environmental Review Tribunal should hear that proposal.  The ‘remedy’ proposed was to put gates on the access roads to stop public traffic.

“PECFN is more than willing to show the Tribunal how putting gates on the very access roads, which will cause the irreversible harm, is no remedy at all,” said Cheryl Anderson, PECFN. “This decision shows that with careful thought the Court of Appeal has recognized the serious consequences that would result in the development of Ostrander Point Crown Land Block.  The court has referred back to the Environmental Review Tribunal the matter of gates on the turbine access roads, which is described as a remedy to the serious and irreversible harm to the Blanding’s turtle.  The consideration of this matter was not allowed by the Divisional Court.”

“The decision also shows that even though the structure of the Green Energy Act imposes almost impossible odds against environmental protection, determined people can succeed in making their case heard,” she added.

Prince Edward-Hastings MPP Todd Smith is cheering the decision, and will attempt to get the ministry’s support.

“I’m confident that the Field Naturalists will be able to show that nothing Gilead does to try and mitigate harm will actually reduce the environmental impact of this project.” Smith said. “The fact is, the court stated that the Tribunal was right to rely on expert evidence that showed how destructive this project would be to the environment.”

Smith said that while the Field Naturalists’ next battle is before the Environmental Review Tribunal, he is going to take the fight back to Queen’s Park.

“My goal is to get the ministry to stop supporting Gilead’s case.” Smith said. “When you’ve got an Appeals Court decision stating that a project will cause environmental harm, it strikes me as hypocritical to have the Ministry of Environment supporting that project.”

The full judgment here:

The December 2014 hearing was the naturalists’ third battle to prevent Gilead Power Corporation and the Ministry of the Environment to put nine wind turbines on the south shore of Prince Edward County, at Ostrander Point.

The PECFN defended the Environmental Review Tribunal ruling that denied the MOE approval of Industrial Wind Turbine development on 324 hectares of Crown Land at Ostrander Point.

Gilead Power argued the tribunal made a half dozen errors in concluding the project would cause “serious and irreversible” harm to the turtles.

Blandings turtles can take up to 25 years to mature, and can live about 75 years.

The PECFN case and intervenors Nature Canada and South Shore Conservancy were heard on Monday followed by wind developer Gilead Power and the MOE with intervenor Canadian Wind Energy Association  on Tuesday with a reply allowed for PECFN.

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.

Environmental organizations that supported the naturalists’ position included Ontario Nature, Nature Canada, Bird Life International, Audubon Society, Royal Society for the Protection of Birds and the Suzuki Foundation.

PECFN has continued its fundraising efforts to pursue the battle through the courts. About $205,000 has been raised to date.

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  1. Susan: PECFN has been told that the (re)new Tribunal will be presided over by the same members Heather Gibbs and Robert Wright and that the proceedings will be held in Demorestville Town Hall, same as the first time. Arrangements for the time have not been made yet, but undoubtedly will be made soon.

  2. Susan says:

    Wolf; I doubt the Ministry would ever walk away particularly at the request of a Conservative MPP. The precedent is just too great to walk away. Our tax dollars will be used to fight against us.

  3. Susan says:

    If this goes back to the Tribunal for remedy as it will is the Tribunal composed of the same persons that originally decided in favour of PECFN?

  4. Wolf Braun says:

    Heard on the radio that MPP Tod Smith will ask the Minister of the Environment to walk away from the Gilead project. Let’s hope he’s successful.

    Also heard that the “Friends” are prepared to go all the way to the Supreme Court. Hope it doesn’t have to but will stand behind them both emotionally and financially. We all should.

  5. Sue3 says:

    PECFN is to be congratulated on getting this far!
    Hopefully the good news keeps coming. It’s becoming very difficult to have much faith in the MOE.

    “Gilead intends to request an expedited process and expects the ERT will grant the environmental approval.”

  6. Susan says:

    Can you imagine the already negative image the Ministry of Environment will have if they continue in an attempt to shove this through and the harm and irreversible damage they support. All with our tax dollars do not forget!

  7. Chuck says:

    You may be correct Kawartha especially since the people’s environment ministry is spending our tax dollars to assist them at every turn.

  8. kawartha dave says:

    Gilead will be back and they eventually will win. Hopefully we can delay them long enough that the foolishness of wind power is finally outed.

  9. Sam says:

    Anybody who thinks that this is over hasn’t read the ruling. Gilead has millions invested in this project already. It is unlikely that they will walk away when there is still a possibility of it receiving approval.

  10. Bettina says:

    To G. Henry – you obviously don’t understand wind power. It does not “replace” other traditional forms of energy since it only works when wind is blowing. It cannot be stored. It is quite useless since other forms of energy must always back it up.

  11. Carlyn Moulton says:

    A small number of determined citizens with conviction and tenacity has stopped what would otherwise have been an environmental travesty for the turtle, the birds, and many other creatures…I am extremely proud of our Field naturalists. Good on you all.

  12. doug says:

    What does the Liberal government not understand about not putting wind mills in rural areas?

  13. Susan says:

    Oh Henry! Are you not aware of the nonrenewable costs on the environment to build an industrial wind turbine? If you are a huge believer in the unreliable energy maker of which we do not require then support placing them in locations where they will not decimate wildlife. Why anyone would think Ostrander Point is an ok location for them is beyond me. But our Ministries of Environment & Natural Resources that use our own tax dollars to fight for this site are hypocrites. And further Henry what about the fact that we don’t want them don’t you get?

  14. G. Henry Pennings says:

    I suppse we will just have to burn more NON-renewables for power then….. this a no winner folks…

  15. RoseMarie says:

    Thanks to all who have gotten to this triumph.Truly you are our angels. If only I knew turtle

  16. Marnie says:

    Long live Blanding’s Turtle. What amazing news!

  17. Mark says:

    I don’t believe there is a remedy to prevent the serious and irreversible harm. The building of the roads alone negate remedy. I hope they do not seek to ask hearing at the Supreme Court of Canada. PECFN have made a remarkable stance. Kudos!

  18. Marie says:

    Great news, Congrats!

  19. Myrna Wood says:

    This reporter’s comment: The decision does not necessarily mean that the project will not proceed as the ERT may determine that it can proceed subject to conditions that protect the turtle” is not correct!
    If the project and its roads will cause irreversible harm, then PECFN will have no problem proving that gates to stop public vehicles on these access roads which will not help. It is the construction of the access roads as well as the turbine bases that will cause the harm.
    PECFN is very pleased that the Appeal Court judges understood our evidence.

  20. Wolf Braun says:

    Amazing and wonderful news !

  21. Gary says:

    Didn’t both sides win here, thus no costs assessed. Isn’t it back to the tribunal for remedy of road access?

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