Wind tribunal features cross examination, presentations and procedural debates

By Henri Garand
The Environmental Review Tribunal hearing on PECFN’s appeal continued Monday, March 18 from 9:30 a.m. until after 6:30 p.m. in Sophiasburgh town hall.  The long day consisted of a cross-examination of Dr. Paul Catling, presentations by Dr. A. Goddard-Hill and Parker Gallant, and further procedural debate over witnesses, evidence, and scheduling.

Cross-Examination of Dr. Paul Catling
Ministry of Environment lawyer Sylvia Davis continued the cross-examination begun after Dr. Catling, a Research Scientist with Agriculture and Agri-Food Canada, testified on March 6.  Her questioning was meticulous to the point of tedium.

Time and again she referred Dr. Catling to the transcript of his testimony and the scientific reports submitted in support. She implied that since Ostrander Point (OP) was already so greatly disturbed by ATV and hunting use, wind turbine construction would not be harmful.  She also tried to establish that since ecosystems can regenerate after fires, the effects of turbine construction are not irreversible.  Dr. Catling patiently explained that plants have adapted to natural disturbances like fire and flood but are not adapted to human disturbances, such as road construction that would elevate nutrient levels, spread contamination and invasive species, and alter drainage patterns.  Hence, negative effects extended well beyond the 5.2 hectares occupied by turbine bases and access roads; 50 hectares of Ostrander Point would be irreversibly harmed.

Ms. Davis also tried to defend Gilead’s proposed Alvar Management Plan.  But Dr. Catling disputed that it was possible to restore OP “to pre-construction conditions” and transform cultural meadow into alvar.  “Self-sustaining alvar will not be created,” he said.  He added that while there was a science of restoration ecology, the alvar plan was a disservice in claiming more than could be achieved.

Following a series of questions on which plants were special, if not unique, to alvars, Ms. Davis attempted to discredit Dr. Catling by pointing to discrepancies between his (incomplete) field notes and his final report.  Dr. Catling explained that his notes recorded interesting observations and therefore did not include common plants such as the eastern red cedar visible out the town hall window.
The botanical education of Ms. Davis took up three hours.

When Gilead’s lawyer announced that his own cross-examination would take a further five hours, PECFN lawyer Eric Gillespie raised a procedural objection.  He pointed out that Dr. Catling had restricted his testimony to one hour, but cross-examinations were going to take ten times as long.  This approach was unfair to a witness and unreasonable for an ERT hearing in light of the six-month deadline.  Chair Wright agreed that the pace of the hearing would have to be addressed, but he made no ruling on the length of further cross-examinations.

Presentation of Dr. Alban Goddard-Hill
Dr. Goddard-Hill, a Belleville family physician and director of the Prince Edward Point Bird Observatory, sought to qualify as an expert witness on the environment.  But the ERT panel found insufficient his undergraduate studies in biology; membership in the Kingston and Quinte Field Naturalists, and in the Eastern Lake Ontario Environmental Research Group; as well as a dozen years of field observations in the Prince Edward bay area.

Nonetheless, Dr. Goddard-Hill was able to give a presentation that stressed worldwide declining bird populations, the unreliability of the bird mortality figures provided by wind companies, and the probability that bird mortality at OP would exceed that on Wolfe Island because the South Shore is a more Important Bird Area.

Bryn Gray, one of the lawyers representing Gilead, asked only about Dr. Godard-Hill’s research into wind development.  Ms. Davis asked no questions but objected to an appendix in Dr. Goddard-Hill’s submission.  The ERT panel deferred a decision on admissibility until Dr. Goddard-Hill made a later presentation on the health aspects of wind turbines.

Presentation of Parker Gallant
Parker Gallant, APPEC member and director of Wind Concerns Ontario (WCO), claimed no expert witness status. His presentation focussed on information on habitat and guidelines provided by the Ministry of Natural Resources, and on international research on bats.  He contended that 120-m setbacks were inadequate because of the high bat mortality recorded elsewhere and MNR’s failure to discriminate among sizes and types of wind turbines. According to the published research, MNR regulations do not fully take into account bat feeding patterns and roosting sites, turbine sound and electromagnetic emissions, and blade speed causing decompression.  Consequently, bats are highly vulnerable to IWTs.

Mr. Gallant also stated that Stantec had omitted bat monitoring in May in its report, even though MNR guidelines note that the busiest months for bat activity are May through to September.  Hence, Stantec was underreporting the presence of bats and the potential for harm.

Finally, Mr. Gallant argued that Gilead Power has contravened the Environmental Protection Act by violating the status of Ostrander Point as an Area of Natural and Scientific Interest (ANSI) and by not consulting with Quinte Conservation Authority, which has responsibility for shorelines and wetlands.

Gilead lawyer Bryn Gray asked questions only about WCO’s overall position on wind development.  Ms. Davis had no questions but commented that later witnesses would address the issues Mr. Gallant had raised.

Mr. Gallant also attempted to present to the ERT panel the record of his second site visit to Ostrander Point.  Lawyers for the MOE and Gilead Power objected to this late submission, and Chair Wright ruled against its admissibility.

The material has been made public on the WCO website: http://www.freewco.blogspot.ca/2013/03/what-ostrander-point-ert-site-tour.html#more.

Stay of Construction
PECFN’s motion for a stay of construction was put in abeyance when Gilead’s lawyer explained that no construction could occur before the alvar management plan was approved.  Since construction was also precluded between May 1 and July 31, it would likely not occur while the ERT was in session.  Gilead’s lawyer undertook to notify Mr. Gillespie if Gilead’s plans changed, at which time the motion to stay could be brought forward again.

New Witnesses
The hearing ended with PECFN lawyer Natalie Smith’s request to add two new witnesses, Dr. Frederick Beaudry and Dr. Charles Smith, whose reports had previously been submitted in evidence.  It had been expected that Ian Dubbin would be relying on their reports, but he had not been accepted as a Presenter or Participant.  Both opposing lawyers objected to the witnesses because of preparatory and scheduling problems.  The ERT panel, however, accepted Dr. Beaudry as a witness on April 3 because of his expertise on the Blanding’s turtle.  The decision on Dr. Smith was deferred until a specific date was known for his availability.

Upcoming ERT Sessions
A teleconference among the ERT panel and all the lawyers is set for Wednesday afternoon. It will deal with procedural matters and may not be open to the public.
The next full ERT hearing takes place on Monday, March 25, in Demorestville, time not yet announced.  One of Gilead’s lawyers is scheduled cross-examine Dr. Catling.
The hearing is expected to run March 25-28.

-Henri Garand, APPEC chair