Environment Minister cancels promised meeting with Mayor of Prince Edward County

ToughonNature

This news from Prince Edward County, where the Mayor has been very vocal protesting the approval of wpd Canada’s White Pines project, which will endanger birds and other wildlife, and affect the County’s tourism base. The approval came while the appeal of a power project at Ostrander Point is ongoing. Both that area, and the South Shore included in the White Pines project, are designated Important Bird Areas for migratory birds. Two weeks ago, an at-risk species specialist with the Ministry of Natural Resources and Forestry testified that he had recommended against giving a permit for the Ostrander Point project.

CountyLive, September 15, 2015

The provincial environment minister has reneged on a promise to meet with Prince Edward County Mayor Robert Quaiff – at least until the current Environmental Review Tribunal has concluded.

Speaking in person with Glen Murray, Minister of the Environment and Climate Change (MOECC), at Association of Municipalities of Ontario Conference in August, “he gave his word we would meet within a couple of weeks,” said Quaiff. “His assistant Neville contacted my office and asked what specific questions I would ask at the arranged meeting so he could have the proper departments there in the room.”

In the letter, Murray stated that since the matter of the renewable energy approval for the White Pines industrial wind turbine project is before the ERT, “it would not be appropriate for me to comment on, or discuss this matter. I would, however, be pleased to meet with you after the Environmental Review Tribunal process has concluded to discuss my ministry’s work going forward.”

Quaiff wanted to discuss the Green Energy Act and how the County is already doing its part.

In his conversation at the AMO, Quaiff told Murray that “Prince Edward County has done its part on providing a net negative, which means that when the sun shines in PEC we produce more power than what we consume.”

Quaiff indicates he’s frustrated but will continue to persevere – as will the 89 communities that are now listed as unwilling hosts for wind turbines. (See below)

The ERT regarding Gilead Power’s nine turbines on Crown Land at Ostrander Point continues Sept. 23-25 in Demorestville. The ERT for the wpd White Pines 27-turbine project on private property in South Marysburgh and Athol and south shore, has been delayed to Nov. 2 in Wellington.

Wind power doc film airs tonight on TVO

The documentary film “Big Wind” is airing again tonight on Ontario public TV station TV Ontario, at 9 p.m. You may also view it online here.

The film covers not only the distress experienced by people facing the invasion of huge wind power projects into their community, but the producers also interview people already living with the wind turbines and their noise emissions, and examines the ideology behind wind power together with an assessment of its value as a power source and solution for environmental problems.

Other films worth viewing are Down Wind and Wind Rush

MP Tilson to Health Canada: Canadians at the mercy of Big Wind

The MP for Dufferin-Caledon, David Tilson, has written a letter to Health Canada expressing concern about the number of complaints about wind turbine noise.

Health Canada should be doing more, he said in the letter dated September 10, and should “be more forthcoming when it comes to ensuring the health and well-being of Canadians.”

“My constitutents, along with many other Canadians,” he wrote, “are at the mercy of big business in the wind industry, and their powerful lobby, the Canadian Wind Energy Association.”

MP Tilson’s letter may be viewed here: REDA 09-2015 Tilson.

Wynne government tough on nature say naturalist organizations

Prince Edward County and Amherst Island are home to endangered species and a resting place for thousands of migratory birds [Photo courtesy Point2Point Foundation]
Prince Edward County and Amherst Island are home to endangered species and a resting place for thousands of migratory birds [Photo courtesy Point2Point Foundation]

“Overturn wind farm approvals,” says Nature Canada

Nature Canada News

In an unprecedented partnership, Nature Canada has been joined by Ontario Nature, the Kingston Field Naturalists and the American Bird Conservancy in opposition to a recently approved industrial wind energy project that threatens birds and other wildlife on Amherst Island.

“Ontario’s decision to approve Windlectric’s 26-turbine project on Amherst Island—one of the province’s crown jewels of nature—is another in a string of ‘tough on nature’ decisions to build wind energy projects in Important Bird Areas in the region” said Stephen Hazell, Nature Canada’s Director of Conservation.

“Given Ontario’s failure to consider the cumulative effects of these projects on nature, the Environmental Review Tribunal should overturn the approval of the Amherst Island Project as well as that of White Pines. And given the clear breaches of the federal Migratory Birds Convention Act, the federal government should in future apply its environmental assessment process to wind energy projects.”

Purple Martins, one of the species threatened by these projects. Photo Ted Cheskey

Purple Martins, one of the species threatened by these projects. Photo Ted Cheskey

Amherst Island, Wolfe Island and the Prince Edward County South Shore Important Bird Areas, all within a few kilometres of each other, are on a bird superhighway during spring and fall migration. They also provide prime breeding habitat for the rapidly declining Purple Martin and several species at risk including Eastern Whip-poor-will, Bobolink, and the long-lived Blanding’s Turtle. 86 turbines were constructed on Wolfe Island in 2009.

Three years of monitoring this project confirmed its reputation as one of the most deadly wind energy projects in North America for birds and bats.

The recent approval of the Amherst and White Pines projects are very bad news for birds, bats, and turtles, and represent the significant industrialization of these ecological treasures. The “new” industrial landscapes will no doubt shock tourists used to the bucolic vistas of the region.   We are all awaiting the final decision on the Ostrander Point project proposal by the Ontario Environmental Review Tribunal.

Valiantly defended by the Prince Edward County Field Naturalists, Ostrander Point is Crown land with habitat for rare species of animals and plants on the south shore of Prince Edward County. A proposal to build twelve 150 metre high wind turbines on it was approved, and then successfully appealed by the Naturalists, before passing through all levels of the Ontario judicial system. Now it is back in the hands of the Environmental Review Tribunal for a final decision.

 

For more information visit http://www.saveostranderpoint.org/.

– See more at: http://naturecanada.ca/news/blog/nature-canada-and-its-partners-raise-their-voices-in-opposition-to-industrial-wind-energy-projects-in-fragile-ibas-in-the-eastern-end-of-lake-ontario/#sthash.RuDpOcug.dpuf

Competing interests: wind power development and the environment at Ostrander Point

Interesting to look back a couple of months to this legal perspective on what happened with the Ostrander Point appeal, especially in light of the current hearings, the decisions to approve wind power projects at Amherst Island and on the South Shore of Prince Edward County, and the testimony from an MNR official who says it was not recommended to proceed at Ostrander Point due to the certain danger to endangered species.

Canlii Connects, April 2015

Environmental litigation often brings in the popular imagination a battle between some big polluting corporations and marginalised people abandoned by the state (the movie Erin Brockovich comes to mind). Those cases do exist, but the majority of environmental law is operationalized by government agencies balancing competing interests, usually economic development with environmental protection. This often results in a compromise: allowing a polluting activity, but with some mitigation measure to limit the environmental effects. But what happens when the two competing interests in front of the executive are environmental protection? This is what the Environmental Review Tribunal of Ontario (ERT) had to deal with in the case Alliance to Protect Prince Edward County v Director, Ministry of the Environment, ultimately largely upheld by the Court of Appeal.[1] This case presents the interesting issue of balancing the need for renewable energy and the impacts such a project can have on the environment, such as the endangered Blanding’s turtle.

The Facts and the ERT Appeal

In December 2012, Ostrander Point GP Inc, the proponent of a wind energy project in Prince Edward County, received a Renewable Energy Approval (REA) from the Ministry of the Environment pursuant to Part V.0.1 of the Environmental Protection Act (EPA).[2] Several groups appealed the decision to issue the REA to the ERT through section 142.1 of the EPA, which gives a right of appeal to any resident of Ontario. On such appeal the ERT is however limited to determine if the project will cause serious harm to human health, or serious and irreversible harm to plant life, animal life or the natural environment.[3]

The appellants in Alliance to Protect Prince Edward County claimed that the proponent’s project would be damaging to human health through the noise of wind turbine, which they argued could cause such effect as head ache, insomnia, nausea, and dizziness. The ERT found no causal link between the alleged health effects and the operation of wind turbines, and thus rejected the first ground of appeal. The second ground argued was that the project would cause irreversible harm to the Blanding’s turtle, a variety of bird and butterfly species, Stantec’s bats, and alvar (a type of plant ecosystem). The ERT found the evidence inconclusive for the second ground of appeal except for the Blanding’s turtle. On that issue, the ERT found that

“mortality due to roads, brought by increased vehicle traffic, poachers and predators, directly in the habitat of Blanding’s turtle, a species that is globally endangered and threatened in Ontario, is serious and irreversible harm to Blanding’s turtle at Ostrander Point Crown Land Block that will not be effectively mitigated by the conditions in the REA.”[4]

To arrive at its conclusion, the ERT determined that the law required it to approach the problem from an ecosystem point of view. It paid special attention to the fact that the Blanding’s turtle was a threatened specie and that consequently a decline in its population would be both serious and irreversible.[5] The tribunal’s findings were based on expert evidence which established that the problematic aspect of the project were the construction of roads, situated in the turtles’ critical habitat, that would subsequently remain open after the completion of the project. Such road would increase morality due to motor vehicle collision, poaching (as the road increase access to their habitat) and predation of nests (as the turtles are attracted to the road’s gravel for nesting even though it offers little cover from predators). The evidence showed that the Blanding’s turtle in the project’s region could not sustain an increase in mortality. Having found that the project would cause serious and irreversible harm to the Blanding’s turtle, the ERT allowed the appeal and revoked the REA.

Reasonableness Review and the ERT

Divisional Court: A De Novo Review?

The proponent appealed the decision of the ERT to the Divisional Court pursuant to section 145.6 of the EPA. The appeal was circumscribed by the fact that such statutory appeals are only on questions of law and are to be treated, as the Supreme Court recently reminded us, as judicial review based on administrative law principles.[6] Nevertheless, the Court, under the pen of Nordheimer J, allowed the appeal in Ostrander Point GP Inc v Prince Edward County Field Naturalists on substantive and procedural grounds. It found that the ERT interpretation of the EPA and the Endangered Special Act was subject to reasonableness review,[7] while issues of procedural equity were to be accorded no deference.

The procedural ground was fairly straightforward: the parties did not have an opportunity to make submission on the remedy. Substantively, the Divisional Court found that the ERT erred in not considering serious harm and irreparable harm as separate branch of the harm test. It also found that the ERT did not have any evidence on current vehicular traffic on the project site, and on the population size of the Blanding’s turtle. It also found that the ERT did not properly consider the Endangered Species Act permit obtained by the proponent, and its potential enforcement by the Ministry of Natural Resources. Finally, the Court found that the conclusion of the ERT that it could only revoke the REA and not modify it was clearly wrong. The Court also rejected the appeal of the ERT findings on the other issues (this part of the judgement was not appealed further).

The Divisional Court’s approach to judicial review in Ostrander Point GP Inc was problematic to say the least. While the Court did recognize it owed the ERT deference, its analysis doesn’t reflect this recognition. The Court looked at the evidence and came to its own conclusion without actually considering whether the decision as a whole was a possible outcome given the mountain of evidence reviewed by the tribunal and given its expertise on environmental issues. It is therefore no surprise that the decision was appealed to the Ontario Court of Appeal in Prince Edward County Field Naturalists v Ostrander Point GP Inc.

Ontario Court of Appeal: What Reasonableness Review Looks Like

The Court of Appeal recognized at the outset the importance of the issue and the prima facie problematic approach of the Divisional Court in its order granting a stay of the lower court decision.[8] On the merit, Juriansz JA, writing for the Court, found unnecessary to address the nuances of reasonableness review. A correct approach in my view as this case actually presented a fairly straightforward and simple example of reasonableness review. In fact, the Court of Appeal demonstrated exactly what a judicial review of a specialised tribunal should look like in most cases.

On the serious and irreversible harm test, the Court stated that the reason as a whole clearly showed that the ERT was aware of the two part nature of the test and that it found the harm to the Blanding’s turtle both serious and irreversible (especially considering the specie’s inability to take an even small increase in mortality). The parsing and hair splitting approach of the Divisional Court did not consider the reason as a whole and gave no proper weight to the fact findings of the tribunal which were not open to reconsideration.

The Court of Appeal further found that the ERT conclusions on mortality was reasonable since the expert evidence showed that it was not necessary to known the size of the population or the extent of vehicular traffic to come to the conclusion that any increase in mortality rates would be serious and irreversible. These were findings of facts which the tribunal was entitled to make. Whether the courts agreed with them was irrelevant.

Juriansz JA then applied the same logic to the Endangered Species Act permit. He found that the permit was not binding on the ERT (the permit states that the proponent is not released of other legal obligations) and that since the ERT did consider the permit’s mitigation measures but found them insufficient in this case considering the evidence (mainly that the permit application considered the Ontario population as a whole while the REA was concerned with the local population) the courts were not entitled to interfered with the tribunal’s findings.

On the issue of remedy, the Court of Appeal agreed with the Divisional Court that it was not realistic to expect the parties to make submissions on remedy without first knowing the ERT findings and that therefore the ERT should have given the parties an opportunity to address remedy after the decision was rendered. The Court of Appeal disagreed with the Divisional Court’s conclusion that the ERT erred in law in finding it did not have jurisdiction to alter the REA. Juriansz JA, however, found the reasoning of the ERT on why it could only revoke the REA in this case to be obscure and thus unreasonable. The ERT’s conclusion that the project would cause serious and irreparable harm to the Blanding’s turtle was restored while the issue of remedy was sent back to the tribunal.

Conclusion: The Delicate Balance of Environmental Interests

As a matter of law, the Court of Appeal decision was the correct one in my opinion. The ERT factual conclusions were detailed and comprehensible. The ERT was clearly aware of the REA appeal test, and clearly found that the appeal was warranted on the issue of the Blanding’s turtle. Overall, the decision was comprehensive, well-reasoned and intelligible, thus reasonable. On the other hand, the ERT reasons on remedy were far from clear and it was impossible to determine how the tribunal arrived to its conclusion. That conclusion was clearly unreasonable. The Divisional Court’s judgement is an example of what not to do in reasonableness review: searching details in the reasons of the tribunal that the courts dislike and presenting them as unreasonable findings. Reasonableness review is a holistic approach to tribunals’ reasons with due regards to the circumstances of the case, not a dissection of every sentences taken out of their context.[9] While there are cases where the reasonableness of a decision will not be clear (and therefore the meaning of reasonable), this was not such a case.

As a matter of principle, I also believe the decision was the correct one. The ERT decision is a product of the REA regime which permits appeal by any Ontario residents on broad environmental issues (a provision of the EPA that should be expanded to other issues in my view, but that point is for another post). The regime has the particularity of pitting environmental concerns against each other. Climate Change is without a doubt a problem of monumental proportion and renewable energy is bound to play a part in its mitigation. Nonetheless, the Prince Edward County Field Naturalists saga raises the question of how far we are willing to go to promote renewable energy. Should we prioritise its development to the point where we dismiss other environmental concerns? I think not, and I believe, at least in part, that’s why the regime was adopted by the legislature in the first place.

The Court of Appeal decision reflects the delicate balancing exercise REA appeals pose. The Court, like the ERT, emphasized the endangered nature of the Blanding’s turtle. Given the ERT strong finding of harm, it was clear that the REA could not stand as it was issued. Nevertheless, given the circumstances, the remedy was not appropriate. It is not the end of the project, however, it was simply sent back to the drawing board to see if it can be accomplished without jeopardising the survival of the Blanding’s turtle in Prince Edward County.

While in the end this was a judicial review and therefore the Court of Appeal’s reasons cannot be taken as a policy dictate, Prince Edward County Field Naturalists serves as a reminder that we cannot promote one aspect of environmental protection to the detriment of another. If we are to pursue progressive development of renewable energy, it can only be accomplished by ensuring that human and ecosystem health are not negatively impacted in the process. Otherwise, renewable energy projects would be no better than the industrial development that led us to the current environmental situation.

[1] Alliance to Protect Prince Edward County v Director, Ministry of the Environment, 3 July 2013, Case Nos 13-002/13-003Ostrander Point GP Inc v Prince Edward County Field Naturalists2014 ONSC 974; and Prince Edward County Field Naturalists v Ostrander Point GP Inc2015 ONCA 269.

[2] Environmental Protection ActRSO 1990, c E.19; see also Green Energy Act, 2009SO 2009, c 12, Sch A.

[3] Environmental Protection Act, s 145.2.1

[4] Alliance to Protect Prince Edward County, at para 630.

[5] Alliance to Protect Prince Edward County, at paras 203 to 209; Endangered Species Act, 2007SO 2007, c 6 at Schedule 4 under reptiles; and Species at Risk in Ontario ListO Reg 230/08, Schedule 3, item 39.

[6] Mouvement laïque québécois v Saguenay (City)2015 SCC 16, at para 38; see also Prince Edward County Field Naturalists, at paras 39 & 40.

[7] For those unfamiliar with administrative law, a reasonable decision is a decision that is justified, transparent and intelligible; one that fall within the range of possible outcomes considering the facts and the law: Dunsmuir v New Brunswick2008 SCC 9, at para 47.

[8] Prince Edward County Field Naturalists v Ostrander Point GP Inc2014 ONCA 227.

[9] See Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board)2011 SCC 62Canada (Minister of Transport, Infrastructure and Communities) v Jagjit Singh Farwaha, 2014 FCA 56; Pastore v Aviva Canada Inc2012 ONCA 642; and Paul Daly, The “Range” of Reasonable Outcomes: a Spectrum or an Accordion?, Administrative Law Matters (blog), 31 March 2014.

No apologies: Addington Highlands reeve justifies his wind farm position

14-01 hogg henry

Hogg: in touch with the people

Frontenac News, September 10, 2015

A few jobs is better than none

There has been persistent opposition from a number of Denbigh residents as well as the group BEARAT (Bon Echo Area Residents Against Turbines) before and after Addington Highlands Council decided to support the bids by RES Canada and NextEra for wind generation contracts.

Reeve Henry Hogg, who has expressed his support for the projects ever since they first surfaced in early March of this year, has been the target of much criticism from the opposition groups, including Paul Isaacs, a Denbigh resident who has launched a public call for the Denbigh ward to secede from Addington Highlands entirely.

In the end, with Council deadlocked at two, it was Hogg who settled all three votes on the matter, each time by supporting wind power in Addington Highlands. Through it all, Reeve Hogg has said little about his own reasons for supporting the project.

“I was in a position of presiding over a process,” he said early this week in a telephone interview, “and not in a position to express my opinion except when I ended up having to vote on the motions that came forward”.

At the first presentation to Council in March by NextEra, Hogg was inclined to support the proposal on the spot, which is something he now says “may have been premature.”

For one thing, delaying acceptance resulted in a significant increase in the “community vibrancy fund” that the township will receive if either company succeeds in the bidding process and ends up putting up turbines in the township.

As well, the township ended up doing research on turbines, talking to other municipalities where both NextEra and RES have constructed and are running projects, attended presentations by the companies, and heard from the public.

“None of that has changed my view about the turbines,” said Hogg. “I felt they were good for the township from the start and I still feel that way.”

Hogg said that he has not only served as reeve of Addington Highlands for many years, but has lived and worked in Ward 1 of the township for 40 years. “I was the only member of council from Ward 1 who has made his living and raised our family in Ward 1”.

One of the critiques of the decision to support the turbine companies was that the Ward 2 politicians out-voted the local Ward 1 politicians who opposed them, but Hogg takes exception to that argument, because with him the majority of Council comes from Ward 1, which is slightly less populated than Ward 2.

“When you look at Highway 41 north of Bon Echo and see the number of businesses that are boarded up, restaurants that are closed, it tells you that the local economy could not sustain them,” he said. “Even if there are only a few jobs created by this, a few is better than none.”

He related that what the research township staff has done and the information he received from other municipalities indicate that turbines don’t cause either adverse health effects or a drop in property values and have been of net benefit to the local economies wherever they are located.

“We don’t have a tourism base”

“We looked at these things; we had our staff do research and this is what they found,” he said. “Some of the people who are against it are saying it will harm our tourism base and the pristine wilderness. We don’t have a tourism base; we never have. We do have cottages, of course, and they are crucial to us keeping anything going at all, but that isn’t tourism. We also don’t have pristine wilderness; everything was logged in what is now Addington Highlands 200 years ago.”

He said that most of the opposition is based on people not wanting to see turbines, even at a distance, from their property or their township.

“To me, people come up with arguments against them mainly because they don’t want to see them. We had the same reaction when we wanted to bring an eco-lodge to Skootamatta Lake a number of years ago. But in this case, they can go ahead even without our approval, and if they do go ahead, I want to be on the inside instead of on the outside looking in.”

And far as the process that council went through before passing a motion of support, he said that he never talked to any of the council members before the vote about what they were planning.

“I didn’t think that was appropriate, but I kind of knew the way four of the five of us were going to vote.”

He does admit, however, that the opposition to turbines caught him by surprise.

“When RES first came here in 2008, nobody said a word against it, and when we put it in our Official Plan, nobody said anything, so I was not ready for what has happened, but then again there are 4,600 permanent and seasonal residents in the township and we have only heard from 50 to 100 people against this. When I look down the road at the long-term needs of Addington Highlands, I see this as a potential benefit if it goes ahead. Nothing I have heard has made me think any differently about it.”

EDITOR’S NOTE: No tourism base? Really. Not what Tourism Ontario says: ontariohighlands.ca

Only heard from 50 to 100 people? What about the 81% who voted NO in an online plebescite?

MNR employee testimony spurs questions on wind farm approval process

The Wellington Times, September 9, 2015

Accidental whistleblower

September 9, 2015 | Filed under: News | Posted by: 
Whistleblower

(L-R) Lawyers Andrew Lokan and Chris Paliare, representing the South Shore Conservancy, and Graham Andrews and Eric Gillespie, representing the Prince Edward County Field Naturalists, work together to argue the Ostrander Point project would have devastating effects on the Blanding’s turtle.

Ministry expert warned that Ostrander Point wind project posed a high risk to Blanding’s turtles before it issued permit to developer to “harm, harass and kill” the endangered species

It was three days into eye-wateringly dull expert testimony, technical language and lawyer-speak. Three days in a hot, humid room with three ineffectual fans lazily turning above a wilting crowd, with barristers in their shirtsleeves as jackets hung over chairs. Then, without warning, the room was seized by high drama. Suddenly, the very credibility of Ontario’s Renewable Energy Approvals process was thrust into the spotlight.

Last Wednesday morning, as far as the eye could see, Demorestville was lined with parked cars. The town hall of the tiny hamlet was hosting the second Environmental Review Tribunal for the proposed wind turbine project at Ostrander Point.

Although the original Tribunal ruled against the turbines, Gilead Power Corporation and the Ministry of the Environment and Climate Change (MOECC) had appealed the ruling, arguing that the Tribunal did not have the chance to see their updated plan, one that would mitigate damage to the endangered Blanding’s turtle, which makes its home at the point.

More than 100 people crammed into the hall to hear the Tribunal, scheduled over three days and set to end on Friday.

Each day brought new expert testimony. On day one, Dr. Fred Beaudry, an expert on Blanding’s turtles, testified that he did not believe Gilead’s mitigation plan of building artificial turtle habitat would be effective. On day two, researcher Kari Gunson, an expert on road migration, cast a doubt on the company’s plan to prevent damage to turtles by gating the project site.

On day three, the MOECC introduced their witness, but the heat, the flies, tedious expert testimony and other commitments caused folks to slowly drift away, leaving a half-empty gallery, some jotting notes, others knitting or shuffling papers to pass the time.

Joe Crowley is a researcher for the Ministry of Natural Resources and Forestry (MNRF). He began the day with his testimony, discussing Gilead’s mitigation plan of building a gate around the site. It wasn’t until the afternoon, near the end of the day, when the Tribunal had aimed to wrap up that Eric Gillespie’s examination suddenly erupted with a dramatic turn of events.

Gillespie questioned Crowley on his involvement in the project earlier, when the MNRF was deciding whether to grant a permit to “kill, harm and harass” endangered species. Crowley, a herpetologist with both a personal and professional interest in turtles, seemed, according to Gillespie, an unlikely candidate to recommend such a permit if he thought serious harm would come to the Blanding’s turtle. Something didn’t fit.

Gillespie questioned Crowley’s report on artificial nesting habitats studied for the project, which saw a total of four turtles over two years use the site. Gillespie referred to Dr. Beaudry’s testimony, that Blanding’s turtles are not predictable in their nesting habitat, and it would be hard to entice them to artificial sites.

“Two turtles is not strong evidence. If that was strong evidence in science, we would save a lot of time with some of these human health hearings that we have to go through,” said Gillespie.

“Two turtles in one year using a mound, I’m going to suggest to you, very clearly is not strong scientific evidence,” said the PECFN lawyer.

When Gillespie confronted him on the fault in his logic, Crowley paused a long time before responding.

“I never stated that the Fournyea study shows that Blanding’s turtles will use artificially created habitat, I was speaking to all freshwater turtle populations,” Crowley answered carefully. “It was a general statement.”

Crowley went further. He said he didn’t think the artificial nesting sites would attract the endangered turtles, just that they would use the sites if they found them.

Gillespie asked if that meant that the roads being created by the project would be attractive to the turtles, increasing the risk to the endangered species. Crowley said it did. Then Gillespie asked if Crowley had recommended the project be allowed to go ahead. Crowley said he hadn’t.

That was the showstopper.

“I expressed significant concerns with the fact the roads, because they were open to the public, would have a relatively high risk of road mortality for Blanding’s turtle, comparatively to the current risk now,” Crowley admitted. “So I did express concerns about the potential level of mortality on the road.”

There was a noticeable stirring as the revelation come out. Suddenly everyone was sitting straighter and leaning in to listen.

Where was the documentation, Gillespie wanted to know.

When Gillespie asked where his recommendation was, Crowley answered that it had been given orally in a meeting or via email at the MNRF. It was not available. Gillespie turned to the Tribunal adjudicators, Heather Gibbs and Robert Wright, insisting that documentation referring to Crowley’s recommendation be made available.

MOECC lawyer Sylvia Davis protested, arguing Gillespie was on a fishing trip, that his request was unreasonable. She argued that the information Gillespie was seeking was based on the original project, not the subject of the current phase of the Tribunal hearing and was, in any case, in the past.

Gillespie responded by saying the revelation from Crowley called the whole process into question.

“You’ve just been told that you conducted a 40- day and 40-night hearing, and it went through all of that exercise two and a half years ago, and this matter went to the divisional court, it went to the court of appeal, and the Ministry of the Environment concealed the fact that one of their key reviewers was recommending against this project,” Gillespie told the Tribunal adjudicators. “The parties didn’t know that, and the Tribunal didn’t know that.”

The adjudicators agreed with Gillespie, ordering the MNRF to produce any written or typed documents, including emails, connected to the project and to the turtles. The Tribunal was put on hiatus, and will resume on September 23.

Kawartha Lakes to appeal wind farm court decision

myKawartha.com , September 9, 2015

City to appeal decision in Sumac Ridge wind farm legal action

Council directs City solicitor to appeal an Aug. 13 court decision in favour of wind energy company wpd Sumac Ridge                

Kawartha Lakes City Hall

Kawartha Lakes City Hall [Photo Lance Anderson]

Kawartha Lakes This Week

By             Mary Riley                                 

                            KAWARTHA LAKES – Kawartha Lakes council has directed the City’s solicitor to appeal a recent court decision in favour of a wind energy company planning to build a mega-wind farm in Manvers Township.

Council discussed the matter in closed session on Tuesday (Sept. 8) and later announced the decision, but there was no disclosure of the potential cost.

The appeal is moving forward after a Superior Court judge decided on Aug. 13 in favour of wpd Sumac Ridge Wind Incorporated in a case involving an access road.

The Court ruled the City had acted in bad faith when council passed “an unwilling host bylaw” in 2014 denying the wind energy company the use of Wild Turkey Road in Manvers Township to access its provincially-approved wind turbine project. The case was heard in April.

The City was ordered to pay $55,000 to wpd, an amount fixed upon and agreed to by both sides prior to the hearing.

The company received provincial approval (called a Renewable Energy Approval or REA) for Sumac Ridge in 2013, and several groups, including Manvers Wind Concerns, launched an appeal through the Environmental Review Tribunal. They lost that appeal earlier this year and are currently awaiting a ministerial decision.

In its application for judicial review, wpd claimed that the City “deliberately frustrated the REA and acted in bad faith in denying wpd the use of a roadway, Wild Turkey Road, which wpd characterizes as the ‘spine’ of the project approved by the Province,” the court document states.

The judge also ruled that the City passed the resolution in a deliberate attempt to keep the Sumac Ridge project from moving forward and that council used its municipal power in bad faith.

On Wednesday (Sept. 9) Ward 16 Coun. Heather Stauble told This Week wpd wants access to Wild Turkey Road, a rough road east of Highway 35 between Ballyduff and Gray roads that leads “right into the Fleetwood Conservation area.”

“It is mainly used for snowmobiling, hiking, riding; it’s very rough and there’s a heavy tree canopy,” she explained. “There is no way you could get an industrial wind turbine down there; you can barely get a pickup truck through.”

She said the road would have to be widened and realigned, including cutting all the trees and brush.

Coun. Stauble said she could not discuss financial details of the appeal as that information remained in closed session, but said it is important because “we can’t have companies coming in here and doing whatever they want to our roads…we spend a lot of money on them.”

She said the City has “municipal money allocated to protect the City’s assets.”

Solicitor Robyn Carlson clarified where the money for the appeal comes from. In an email, she said the City’s operating budget provides for legal expenses, as do other municipalities. If that legal budget is exceeded, council must approve additional funding from another source.

“To fund the appeal in question, Council approved additional funding from the Contingency Reserve. Ultimately this reserve (Contingency Reserve) is funded by surpluses in the operating budget; this could be sourced from property tax but it could be increased user fee money, increased interest income, etc.; there are a variety of sources.”

Several councillors This Week spoke with on Wednesday said they were not at liberty to discuss the potential costs of the appeal, as the discussion was in closed session.

In an email, Mayor Andy Letham said, “The exact cost of an appeal is very hard to nail down. We certainly will not comment when the legal action is ongoing. However, the operating budget, including legal, is public information.”

Ontario’s Wynne government: TOUGH on … Nature?

Planned devastation of Amherst Island, wildlife and Ontario economy
Planned devastation of Amherst Island, wildlife and Ontario economy

Kingston Whig-Standard, September 8, 2015

Four area naturalists groups are opposing Ontario’s approval of the Amherst Island Wind Energy Project.

The Ministry of Environment and Climate Change announced Aug. 24 that the project received renewable energy approval, pending more than two dozen conditions. The project, to be build by Windlectric Inc., is to include up to 26 wind turbine generators and one substation transformer.

Nature Canada, Ontario Nature, the Kingston Field Naturalists and the American Bird Conservancy have come forward to ask the project’s approval be overturned. The Association to Protect Amherst Island (APAI) and Randy Hillier, MPP for Lanark-Frontenac-Lennox & Addington, already publicly opposed the project.

Stephen Hazell, director of conservation for Nature Canada, called the approve another ‘tough on nature’ move by the ministry and asks the Environmental Review Tribunal to overturn the approval.

A clear breach of the Migratory Birds Act

“Given the clear breaches of the federal Migratory Birds Convention Act, the federal government should in future apply its environmental assessment process to wind energy projects,” Hazell said in a release.

Joshua Wise, greenway program manager for Ontario Nature, said the 35 kilometres of new roads will destroy habitat for species at risk.

“Amherst has the largest breeding population of the at-risk short-eared owl in southern Ontario,” Wise said. “During the winter, Amherst supports the largest concentration of owl species of anywhere in eastern North America as far as we know. “We are all for green energy, but not at the expense of nature.”

Kurt Hennige, president of the Kingston Field Naturalists (KFN), said his group opposes the Amherst Island Wind Energy Project because they know the turbines on Wolfe Island are killing area birds such as ospreys, red-tailed hawks, purple martins and the wilson snipe.

“The KFN believe that there will be the same or higher levels of mortality on Amherst that will result in the local extinction of these four species and have irreversible impacts on Eastern Meadowlarks and Bobolinks,” Hennige said. “Our requests for a radar study of bird and bat migration was ignored and the environmental impact of the project was grossly minimized in their (Environmental Bill of Rights).”

South of the border, Michael Hutchins, director of the American Bird Conservancy’s Bird-Smart Wind Energy Campaign, said it could not ignore the MOECC’s decision. The American Bird Conservancy will be looking to any of their tools available to overturn the decision.

“The birds and bats that will be killed would be migrating to or from the United States and are a shared resource,” Hutchins said. “They contribute millions of dollars of tourism revenue and ecological services to the U.S., Canada and other countries that may be their winter destinations.

Approval has international implications: American Bird Conservancy

“There is no regard in this decision for its international implications.”

“APAI intends to continue its commitment to preserve the cultural and natural heritage of the Island for future generations,” APAI said in a release following the approval. “The association has a strong legal position and fact-based evidence and will file an appeal of the decision to the Environmental Review Tribunal in the near future.” APAI said the project is unwanted because it will bring down property values, hurt the climate of the island, and Windelectric Inc. has not provided an emergency response plan.

Hillier said he admires the resolve of the APAI and their efforts.

“The essence of a democracy is to listen to people and to have policies that are consistent with the desire of people,” Hillier said. “There is ample evidence that this development would be harmful to Amherst Island.”