Ontario government sees citizens as ‘enemies of the state’ says newspaper editor

Premier Wynne: fighting you ... with your own money
Premier Wynne: fighting you … with your own money

Rick Conroy, editor of the independent Wellington Times says the Ontario government has “turned against its people.” He cites the numerous examples of citizen groups forming and paying for legal actions to protect their communities against the government, and more recently, Ontario Premier Kathleen Wynne labeling Ontarians as “bad actors” when it comes to the environment.

In his editorial, he asks why, why it comes to huge wind power projects, “… What drives elected officials to use the state’s power and resources against those working to protect the natural world it has abandoned?”

We got a glimpse last week when Kathleen Wynne defended her government’s cap and trade emmissions scheme. She told a business audience in Niagara Falls that Ontarians are “very bad actors” in terms of per capita emissions of greenhouse gases. It wasn’t a slip of the tongue—or offhand remark. These words were part of a scripted speech.

Fortunately for the wretched folks in this province, we have a premier who understands good and bad—better than we do. She has unveiled the selfish and narrow view through which we see the world around us. Kathleen Wynne will be our better selves.

In this morality play your provincial government has decided it will not work in your interest— but rather what it believes your interest ought to be. It knows this better than you. Kathleen Wynne, and Dalton McGuinty before her, believe they know what is best, and cling to the hope that history will judge them better than Ontario’s weak and myopic voters do now.

Maybe.

But untethered by accountability to its voters and deaf to its ministries’ advice and counsel, provincial Liberals have made a terrible mess of the energy supply system in Ontario. It will take decades to fix. It has squandered billions of dollars chasing schemes unworthy of a Nigerian postmark. It has pushed manufacturing jobs out of the province. And it has rendered electricity bills that are unaffordable for many of its poorest rural residents. Meanwhile, it has made a select group of developers very, very wealthy.

In turn, they have dutifully filled her parties’ coffers— to arm her for the next election.

How is it that the most righteous tend to be the most susceptible to corruption and misdeeds? There is something distinctly Shakespearean in this tragedy.

 

Read the full article here.

Aviation safety, endangered wildlife win Fairview appeal

In January 2014, John Terry, the lawyer for the well-funded wind power development lobbyist the Canadian Wind Energy Association (CanWEA) told the panel of judges in an Ontario court at the appeal of a decision at Ostrander Point, that their decision was very important for the future of wind power development in Ontario because, he said, “This [a successful appeal] was never supposed to happen.”

One might think that he meant the approval process was so rigorous that wind power projects should pose no danger to the environment or to people and that’s why “this,” the successful Ostrander appeal shouldn’t have happened. But no, what he meant was, the rules and procedures attached to wind power development were supposed to be so iron-clad that mere citizens acting on behalf of the environment, wildlife and their own health, could have no hope of success. Lawyers acting for appellants have said, the test set up by Regulation 359-09 to prove serious harm to human health and serious and irreversible harm to wildlife was impossible to meet.

Except, now, that test has been met.

Four times.

The successful appeals at Ostrander Point, White Pines, Settlers Landing and yesterday, Clearview, show that when proper attention is paid to the requirements to preserve the environment and actually balance development against potential harm, the wind power developments can be demonstrated to be in the complete wrong place.

But the wind power development industry, coached and encouraged by their huge lobbyist and the very compliant Ontario government, felt entitled to propose wind power projects wherever they found willing landowners. Such was the case at Clearview where the eight, 500-foot turbines were to be located near not one, but two aerodromes, the Collingwood Regional Airport and a private airstrip. WPD Canada felt so entitled to success and money that it believed it could locate huge turbines even where pilots’ safety would be in danger and where wildlife would almost certainly be killed.

The Environmental Review Tribunal decision was released Friday, October 7: yes, there would be serious harm to human health because of the risk to aviation safety and yes, there would be serious and irreversible harm to the endangered Little Brown Bat.

Paragraphs [149-151] are interesting: the appellants’ expert witness arguments were “informed and reasoned” the panel wrote, finding they had established “the evidentiary base to support their qualitative assessments.”

Although a remedy hearing is possible, the Tribunal expressed doubts as to the effectiveness of any measures proposed.

The Tribunal used very strong language in places in the decision, saying “it would be trite to say …” or “it is obvious …” and they noted the federal Ministry of Transport’s carefully crafted opinion letter on aviation safety at the airport.

The people of Ontario have despaired at times as wind power projects have been put in fragile environments, too close to people’s homes and workplaces, without any real demonstration of environmental benefit. Millions have been spent by ordinary citizens as they took on corporate Big Wind to defend—what? The environment against their own Ministry of the Environment.

One lawyer for the Ministry has often been heard to say “wind trumps everything.” She is wrong, as this latest decision demonstrates.

Actions taken in the name of preserving the environment must really do that, and not rely on ideology-based trite statements for justification. Ontario has still never done a cost-benefit analysis on its wind power program even though clearly, wind power has a high impact on the natural environment, on communities, and on the economy, without actual demonstrated benefits.

Clearview was a victory for all Ontario, and the environment.

Jane Wilson

(Volunteer) President

Wind Concerns Ontario

Ontario suspends Large Renewable procurement

September 27, 2016

Moments ago, the Wynne government announced it is suspending its controversial Large Renewable Procurement program for sources of power such as wind and solar.

“Ontario will immediately suspend the second round of its Large Renewable Procurement (LRP II) process and the Energy-from-Waste Standard Offer Program, halting procurement of over 1,000 megawatts (MW) of solar, wind, hydroelectric, bioenergy and energy from waste projects. …

On September 1, 2016, the Independent Electricity System Operator (IESO) provided the Minister of Energy with the Ontario Planning Outlook, an independent report analyzing a variety of planning scenarios for the future of Ontario’s energy system. The IESO has advised that Ontario will benefit from a robust supply of electricity over the coming decade to meet projected demand.”

Wind Concerns Ontario (and two Auditors General for Ontario) has been saying for years that a cost-benefit analysis of the renewable energy program was never done, and should have been.

“Now, the impacts of this program are clear,” says President Jane Wilson.”We have unsustainable and punishing rises in electricity bills for the people of Ontario, with a corresponding rise in rates of energy poverty, while there is no evidence of any environmental benefit. In fact, there are widespread concerns about the damage being done to the environment from this high-impact form of power generation.”

Wind Concerns Ontario says that in addition to suspending the Large Renewable Procurement program, contracts for power projects not yet under construction need to be cancelled immediately.

“The government admits it has adequate power,” Wilson says. “There is no need to continue this assault on Ontario citizens, on our economy, and on the natural environment for little or no benefit.”

 

president@windconcernsontario.ca

Save Ontario $500 million: cancel wind power contract, says community group

August 29, 2016

The Windlectric wind power project on tiny Amherst Island has no hope of meeting its “drop-dead” Commercial Operation date, so Ontario’s Independent Electricity System Operator (IESO) can cancel the Feed In Tariff (FIT) contract right now, with no penalty, says the Association to Protect Amherst Island.

See the letter to IESO Chair Tim O’Neill here and below.

header-12.jpg

Dear Dr. O’Neill,

In August 2015 The Association to Protect Amherst Island requested that the IESO exercise its ability to cancel the Fit Contract dated February 25, 2011 with Windlectric Inc. (Algonquin Power) without penalty because of the inability of the company to achieve its commercial operation date.

In its 2016 Q2 Quarterly Report, extract attached, Algonquin now advises that construction is expected to take 12 to 18 months and that the Commercial Operation Date will be in 2018. This timeline is contrary to what was submitted to the Environmental Review Tribunal and to the Ontario Energy Board. A COD of 2018 is seven years from the date of award of the contract.

Cancellation of the contract at this time would enable the IESO to achieve cost avoidance exceeding $500 million over the next 20 years based on the high cost of power generation at 13.5 cents per kilowatt-hour set out in the contract with Windlectric and based on the IESO’s commitment to pay Windlectric to not produce power when capacity exceeds demand. Cancellation of the Windlectric contract could be achieved without penalty due to noncompliance and would address in part the IESO’s budget challenges and energy poverty in Ontario.

Accordingly, the Association reiterates its request that IESO cancel the FIT Contract with Windlectric Inc.

Rick Conroy, in the attached article from the Wellington Times, explains the Kafkaesque and cruel nature of allowing the Amherst island project to continue especially in light of the unused power capacity of the nearby Lennox Generating Station and the Napanee Gas Plant under construction.

In summary:

Windlectric cannot comply with the Commercial Operation Date in its FIT Contract.

At a time of skyrocketing hydro rates and financial challenges the IESO could save $500 million over the next 20 years by cancelling the Windlectric Contract without penalty.

Existing nearby generating capacity is almost never used and will increase when the Napanee Gas Plant comes online. Intermittent and expensive power from wind turbines on Amherst Island is not necessary

Finally, please provide the IESO’s understanding of the Commercial Operation Date for Windlectric, any extensions awarded by the IESO, and the number of days granted due to Force Majeure and judicial matters.

Thank you for your consideration.

Sincerely,

Michèle Le Lay

President

Association to Protect Amherst Island

CC Premier Kathleen Wynne

Honourable Glenn Thibeault, Minister

 

The ‘treachery’ of Ontario’s wind power program

Independent newspaper publisher Rick Conroy of The Times reviews the decisions by the Environmental Review Tribunal to uphold the approval of the wind power project on little Amherst Island. The facts when laid out this way are shocking … and shameful.

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

The Times, August 12, 2016

From Amherst Island, you can see the Lennox gas-fired generating station sitting idle most days. The plant sits just across the narrow channel. It burns both oil and gas to produce steam that, in turn, drives generators to create electricity. The plant has the capacity to generate 2,100 MW of electricity—enough to power more than a million homes. But that electricity is rarely ever used. Over the last decade, the Lennox station has operated at less than three per cent of its capacity. That means it is idle much more often than it runs. Yet it earns more than $7 million each month—whether it runs or doesn’t. Such is Ontario’s hyperpoliticized energy regime.

Last Thursday was a warm day across Ontario— one of the warmest in a hot summer. With air conditioners humming, electricity demand across the province peaked at 22,312 MW. Meanwhile, Lennox sat idle all day. As it does most days.

So it seems odd that yet another gas-fired generating plant is emerging from the ground next to the mostly-idle Lennox station. It will add another 900 MW of generating capacity to a grid that clearly doesn’t need any more.

From Amherst Island, it must seem cruel. Within a couple of kilometres, there is enough unused power generating capacity to light millions of homes, yet island residents are being forced to give up their pastoral landscape— for the sake of an intermittent electricity source that nobody needs.

Last week, an Environmental Review Tribunal rejected an appeal by Amherst Island residents seeking to stop Windlectric, a wind energy developer, from covering their island home from end to end with industrial wind turbines, each one soaring 55 storeys into the sky.

Amherst Island is tiny. Just 20 kilometres long and 7 kilometres wide, there is no place, no horizon, no home that can avoid being transformed by this out-ofscale industrialization.

The treachery gets worse. Amherst Island is administered by a council that presides over the larger Loyalist Township from the mainland. Last year, council made a deal with the wind developer, agreeing to recieve a $500,000 payment each year the wind turbines spin. It is a lot of money for a municipality that operates on a $12-million budget annually.

But perhaps the most disappointing bit of this story is the damage that has been done to friendships and families on Amherst Island. Just 450 people live here. It swells to about 600 in the summer. It was a close community in the way island life tends to be.

Industrial wind energy has, however, ripped this community in two. Property owners hoping to share in the windfall from the development are on one side and those who must endure the blight on the landscape for a generation or more on the other.

Lifelong friends no longer speak to each other. At St. Paul’s Presbyterian service on Sunday mornings, the wind energy benefactors sit on one side of the church, the opponents on the other. A hard, angry line silently divides this community.

The Environmental Review Tribunal concluded not enough evidence was presented in the hearings to say the project will cause serious and irreversible harm to endangered species including the bobolink, Blanding’s turtle and little brown bat.

The decision underlines the terrible and oppressive cruelty of the Green Energy Act—that the only appeal allowed for opponents is whether the project will cause serious harm to human health or serious and irreversible harm to plant life, animal life or the natural environment. It is a profoundly unjust restriction on the right of people to challenge the policies and decisions of their government as they directly impact their lives.

The folks on Amherst Island weren’t permitted, for example, to argue that the power is unneeded— that this project is a grotesquely wasteful use of provincial tax dollars. Their neighbourhood already boasts enough electricity capacity to power a small country, yet it sits idle—at a cost of millions of dollars each month. It might have been a useful addition to the debate—but this evidence wasn’t permitted.

Nor were island residents allowed to appeal the fundamental alteration of their landscape. Nor the loss of property value. They can’t undo the broken friendships and the hollow feeling that hangs over the church suppers or the lonely trips across the channel.

Wide swathes of reason and logic have been excluded in the consideration of renewable energy projects in Ontario.

To the extent that urban folks are even aware of what green energy policies are doing to places like Amherst Island, they console themselves by believing it is the cost of a clean energy future—that diminishing the lives of some rural communities is an acceptable trade-off for the warm feeling of doing better by the planet.

Yet these folks need to explain to Amherst Island residents how decimating their landscape, risking the survival of endangered species and filling the pockets of a developer with taxpayer dollars for an expensive power supply that nobody needs makes Ontario greener.

Visit Amherst Island. Soon.

Remember it as it is today. Mourn for its tomorrow.

 

rick@wellingtontimes.ca

Read the full opinion here.

 

Wind power project proceeds in spite of acknowledged risk to endangered bats

London Free Press, July 28, 2016

By John Miner

A last-ditch attempt to stop an Oxford County wind farm, based on damage it will do to an endangered species, has run into a wall.

The East Oxford Alliance citizen’s group filed an urgent request last week with Environment Minister Glen Murray to stop the Gunn’s Hill Wind Farm because the project will kill little brown bats, a species whose numbers are plunging across North America and is now on Ontario’s and Canada’s endangered lists.

In a written reply on the minister’s behalf, the director of the ministry’s environmental approvals branch said it is the ministry’s priority to ensure renewable energy projects are developed in a way that will protect human health and the environment.

In the case of wind power, clear rules have been established to protect birds, bats and their habitats, Kathleen Hedley wrote.

The Gunn’s Hill Wind Farm, a 10-turbine project in Norwich Township, is required to conduct mortality surveys for at least three years after it starts up.

“If thresholds of bird and/or bat mortality are reached, contingency plans can be put in place to reduce impacts and additional monitoring is conducted to ensure the contingency plans are effective,” Hedley wrote.

Disappointed alliance member John Eacott said the bottom line is the wind power company is just required to collect bat and bird carcasses for three years before taking action: “This is the clear rules that Ontario has established — nothing has to be done.”

Fellow alliance member Joan Morris said the group will review its options.

Waiting to count carcasses of endangered species is irresponsible and completely incongruent with the intent of the Endangered Species Act, she said. “Three years from now may be too late for the little brown bat.”

A study released by Bird Studies Canada this month found bats dying at the rate of 18.5 per turbine in Ontario, well above the allowable 10-per-turbine threshold set by the province’s Natural Resources Ministry.

An estimated 42,656 bats were killed by Ontario wind turbines between May 1 and Oct. 31, 2015, including several endangered species, the study said.

North American studies of bat deaths and wind turbines have found bats are killed either by being struck by turbine blades or by air pressure changes caused by the turbines that burst blood vessels in their lungs.

Ontario’s Endangered Species Act, passed in 2007, originally prohibited killing or harming species on the endangered list and their habitat.

But that law was relaxed by the province in 2013 …

Read the full story here

MOECC refuses to reconsider appeal of Gunn’s Hill power project to save endangered bats

ToughonNature-smaller

July 27, 2016

The Ontario Ministry of the Environment and Climate Change is refusing to reconsider the situation at a Norwich Township wind power project, where it was acknowledged during the appeal last year that the endangered Little Brown Bat was present, and would die as a result of the presence of wind turbines.

The MOECC instead relies on its Renewable Energy Approval process and told the East Oxford Community Alliance in a letter that “post-construction protocols have been prepared in accordance with the MNRF guidelines. The applicant is required to conduct mortality surveys for a minimum of three years once the wind farm is operational.”

Local resident and Alliance member John Eacott told the Woodstock Sentinel-Review there isn’t much point in conducting surveys to find out how many animals you’ve killed, then trying to figure out how to fix the situation. The group had referenced the Environmental Review Tribunal decisions from  the White Pines appeal (Hirsch vs. the MOECC) and Ostrander Point in its filing with the MOECC, saying that the new understanding about the endangered bats was that there are so few of the animals left that any deaths will result in serious and irreversible harm.

The precautionary principle must be applied, as the government balances its renewable energy program with the need to protect the natural environment.

“You can’t have two sets of rules for different sites,” said Eacott.

Bird Studies Canada released a report earlier this month that showed an astounding number of bats are being killed by Ontario’s wind turbines — in fact, 77% of the bats killed by wind power projects in Canada, were in Ontario. The average was 18 bats killed per turbine. Prowind’s threshold for bat mortality is actually 10 bats per turbine, according to its Renewable Energy Approval.

The community group also wrote to the Environmental and Lands Review Tribunal demanding that the appeal be reopened. The Tribunal’s response was that the appeal date has passed and the group’s only recourse now is to go to Divisional Court.

Wind turbines killing bats, other endangered species: Bird Studies Canada report

 

London Free Press, July 20, 2016

By John Miner

Wind turbines are killing bats, including ones on the endangered species list, at nearly double the rate set as acceptable by the Ontario government, the latest monitoring report indicates.

Bats are being killed in Ontario at the rate of 18.5 per turbine, resulting in an estimated 42,656 bat fatalities in Ontario between May 1 and October 31, 2015, according to the report released by Bird Studies Canada, a bird conservation organization.

Ontario’s Ministry of Natural Resources has set 10 bat deaths per turbine as the threshold at which the mortalities are considered significant and warrant action.

The bats being killed by turbines in Ontario include the little brown bat, tri-coloured bat, eastern small footed bat, and northern long-eared bat, all on the endangered species list.

The Birds Studies Canada report draws its information from a database that is a joint initiative of the Canadian Wind Energy Association, Canadian Wildlife Service, Ontario Ministry of Natural Resources and Bird Studies Canada.

Brock Fenton, an expert in the behaviour and ecology of bats and professor in Western University’s department of biology, said the bat deaths are a concern.

Bat populations across North America have been plunging with the emergence of a fungal disease called white nose syndrome.

Birds are taking less of a hit from wind turbines, according to the report, with an estimated 14,144 non-raptors killed by wind turbines and 462 raptor fatalities between May 1 and October 31 in 2015.

The report noted that some wind farms have moved to reduce bat mortalities by cutting their turbine speeds from dawn to dusk in the late summer and early fall.

A spokesperson for the Canadian Wind Energy Association said the association is concerned about reports that are based on limited data that have the effect of boosting estimates.

In response, CanWea is developing its own system that will be released this fall that is designed to improve existing and proposed bat regulations, said Brandy Giannetta, CanWea’s Ontario regional director.

“It aims to achieve this in part by enhancing knowledge of the existing data in order to drive science-based policy decisions and also by providing avoidance, minimization, and mitigation options that we hope operators and regulators alike will find useful in conservation efforts,” Giannetta said in an email.

Wind Concerns Ontario, a coalition of provincial groups opposed to wind farm development, said it is concerned that birds and, significantly, bats are being killed in numbers that were not forecast by either the Ontario government or the wind power developers.

“The population of the Little Brown Bat in particular is now at 5-10 per cent of its historical levels, so, as the Environmental Review Tribunal stated in the White Pines decision in Prince Edward County, even a few deaths will have a serious impact on the species as a whole. And we know for a certainty that bats are killed by wind turbines,” Jane Wilson, president of Wind Concerns Ontario, said.

It is critical to understand that wind power projects shouldn’t be approved without a full and objective assessment of all factors in any given location. The government’s push for wind power has to be balanced with the continuing need to protect the natural environment, Wilson said. …

Read the full story here.

Community group demands halt to wind farm construction over endangered species

little brown bat

Photo: Ontario Ministry of Natural Resources

NEWS RELEASE

WOODSTOCK, ON, July 18, 2016 /CNW/ – The East Oxford Alliance has filed an urgent request to halt a wind power project with the Ontario Ministry of the Environment and Climate Change and the Environmental Review Tribunal. The group has also asked that its appeal of the Gunn’s Hill wind power project be reopened.

Although the endangered Little Brown Bat was acknowledged at the original appeal, the appeal was dismissed. “The Tribunal did not have the opportunity to examine the danger to these animals in light of the need for precaution,” says Joan Morris, East Oxford chair. “In the recent successful White Pines appeal, the Tribunal determined that because only five to ten percent of the original population of Little Brown Bat remains in Ontario, even a small number of deaths constitutes serious impact.

It was confirmed at the Gunn’s Hill appeal that bats will be killed in this wind power project.”

The Environmental Review Tribunal also noted in its decision on Ostrander Point that approvals of renewable energy projects must seek balance between the government policy of encouraging clean power generation and protecting the environment.

SOURCE Wind Concerns Ontario

For further information: morrisj99@gmail.com, kdmckay@execulink.com, president@windconcernsontario.ca

RELATED LINKS
http://www.windconcernsontario.ca

For more information (though outdated) on the Gunn’s Hill wind power project, developed by Prowind of Germany, see the company website here. The project is financed in part by the Oxford Community Energy Co-op; information here.

Wind farm appeals no longer a ‘rubber stamp’ after Ostrander Point community success, says lawyer

“If a sports team went out week after week for the better part of a decade and lost every single game, you would have to question what is going on,” says environmental lawyer Eric Gillespie. “Even the Toronto Maple Leafs win some games.”

Ostrander-Tree
Photo: The Wellington Times

The Wellington Times, July 15, 2016

Ostrander Point Tribunal drags scrutiny of wind and solar projects out into the open

Only when time has passed and the memories of the the yearslong struggle begin to fade, will we know that industrial wind turbines have been banished from Ostrander Point for good. But for now, the creatures who occupy or pass through this bit of land on Prince Edward County’s south shore may do so without the threat of bulldozers rolling across the terrain or 50-storey machines whirring overhead. Maybe forever.

The Ostrander Point wind project has been stopped. Its appeal period has expired. There remain scenarios in which the project could be revived, but that likelihood is now remote, according to the lawyer acting for the Prince Edward County Field Naturalists (PECFN).

“There is rarely a final chapter written in these types of sagas,” said Eric Gillespie. “It is fair to say, however, that the odds of this going further are extremely low. To the best of our understanding, the Gilead Power permit is revoked. That decision is not being appealed. The file has concluded.”

The volunteers who form PECFN allowed themselves to exhale on Thursday evening—after the developer’s appeal period had expired.

“It is particularly wonderful to finally realize that the battle is over,” said Cheryl Anderson of PECFN.

WHAT IT MEANS
The decision by the Environmental Review Tribunal—written by Heather Gibbs and Robert Wright—fundamentally alters the future for Ostrander Point, and has the potential to disrupt other projects involving land where Blanding’s turtles are known to nest, including White Pines and Amherst Island. But it has the potential to reach much further. Indeed, it has the potential to shake the very foundations of the Green Energy Act (GEA).

In 2009, the provincial government, led by Dalton McGuinty, was unsatisfied with the pace of wind and solar energy development in the province. Deadline after deadline had passed and his targets for renewable energy had gone unmet. A panel of experts had reported a year earlier that the regulatory process— the safeguards that protect human health, the environment and even the electrical grid itself—were causing the delays to wind and solar development across the province.

The GEA set out to remove these hurdles—eliminating safeguards in the Ministry of the Environment, Ministry of Natural Resources and Forestry, Ministry of Energy and the Ontario Energy Board, among others.

Since the GEA was enacted, industrial wind and solar projects have been reviewed and approved behind closed doors in a mostly tightly controlled process. The only nod to public transparency and accountability was a single Environmental Review Tribunal.

But the test, established under the GEA, to overturn or amend a project at the Tribunal stage was thought to be impenetrable. That is, until now.

The only way to block a project with a renewable energy approval (REA), according to the legislation, is that an appellant must prove the risk posed by the project will cause “serious harm to human health,” or “serious and irreversible harm to plant life, animal life or the natural environment.”

dozens of appeal hearings, predictions of impenetrability proved true. Gillespie says this led many to despair the review mechanism was just a formality.

“If a sports team went out week after week for the better part of a decade and lost every single game, you would have to question what is going on,” said Gillespie. “Even the Toronto Maple Leafs win some games.”

He says there was growing consensus among the legal community in Ontario that the test was being interpreted in such a way that “nobody could ever get to first base.”

“For many people, that undermined the credibility of the government and the credibility of the Tribunal’s process,” said Gillespie. “Every hearing became a rubber stamp process.”

The Ostrander Point Tribunal changed that— perhaps in a profound way.

For what it does is bring the review process out into the open. The developer and its lawyers had argued that it was beyond the Tribunal’s reach to consider the thoroughness or strength of the review conducted inside ministry walls. The Tribunal could conclude only whether the tests of harm had been met.

But Tribunal adjudicators Wright and Gibbs weren’t satisfied with this constriction. Nor were they comfortable that the risks, posed by the project to the Blanding’s turtle, were acceptable or the plan to create replacement habitat would work to protect the endangered species. This was much further than some legal experts believed was contemplated by the GEA.

Faced with the probability that the project was likely to damage the Blanding’s turtle population at Ostrander Point, the Tribunal overruled the provincial government and its ministries.

“Legally, it is significant for its ruling that once ‘serious and irreversible harm’ is found and the Tribunal moves into a consideration of appropriate remedy, the Tribunal will step into the Director’s shoes to fashion an appropriate remedy,” wrote Jack Coop et al in June, in an analysis of the decision for Osler, a law firm.

For the first time, an Environmental Review Tribunal had defined the measures it deems, based on the evidence and expert opinion presented before it, necessary to protect the species at risk. It concluded the only remedy demonstrated to work was to revoke the permit—to prevent the project from being built.

The decision, in some instances, will now enable Tribunals to consider concepts as the precautionary principle— that, based on a balance of probabilities, the risk posed by the proposed project is simply too great.

The Ostrander Point decision has the potential to return relevancy to the Tribunal review process, according to Gillespie.

“If the system was to maintain any credibility in the eyes of many across the province, something had to change,” said Gillespie.

He adds it is critical to this sense of faith people have in their regulatory processes that advances made in Ostrander Point are reflected in future decisions.

“If ultimately, appeals to White Pines and Amherst Island fail then arguably, we are back to where we were three years ago,” predicted Gillespie. “People will conclude that the right to appeal such projects is completely hollow.”