Bow Lake Wind Farm appeals begin next week
Thursday, February 27, 2014 by: Darren Taylor, SooToday
The main hearing for an appeal against the Bow Lake Wind Farm project has been rescheduled to 11 a.m. on Monday, March 3, 2014 at The Days Inn at 332 Bay Street in Sault Ste. Marie.
Members of the public are invited to attend.
The Ontario Ministry of the Environment (MOE) approved the Bow Lake Wind Farm project December 16, 2013.
The Bow Lake Wind Farm project is a partnership between Nodin Kitagan of Batchewana First Nation (BFN) and Calgary’s BluEarth Renewables.
The Bow Lake Wind Farm project, a plan for 36 wind turbines, is to be located on traditional BFN land approximately 80 kilometres north of Sault Ste. Marie.
In early January, Save Ontario’s Algoma Region (SOAR) spokesperson Gillan Richards and Lake Superior Action Research Conservation (LSARC) Co-Chair George Browne announced by email that James Fata and 2401339 Ontario Ltd. (a corporation resident in Ontario) will request the Environmental Review Tribunal (ERT) revoke MOE approval of the Bow Lake Wind Farm.
Groups such as SOAR and LSARC state they are opposed to wind farm development in the Sault and Algoma region, maintaining that wind turbines are hazardous to human health and wildlife, an environmental disruption, and spoil the natural, rugged beauty of the Algoma landscape.
SOAR and LSARC say Fata is challenging MOE approval of Bow Lake on constitutional grounds, questioning whether the project’s approval has violated his right to security of the person as granted under Section 7 of the Canadian Charter of Rights and Freedoms.
A preliminary hearing was held January 28 and continued by teleconference January 31, February 7, 14 and 21.
The March 3 main hearing will include opening statements for all parties.
The appeal by 2401339 Ontario Ltd. will be heard at 9 a.m., March 3 to 7, 2014, and at 9 a.m. March 17 to 21, 2014.
James Fata’s appeal will be heard at 9 a.m., March 25 to 27, 2014.
All meetings will take place at The Days Inn.
Here from Manvers Gone With The Wind, a report on the ERT from City of Kawarth Lakes Councillor Healther Stauble.
UPDATE: Sumac Ridge from COKL Councillor Heather Stauble
I am attaching a copy of the Order that was issued yesterday regarding the Environmental Review Tribunal on the Sumac Ridge Wind Project adjourning the Hearing until at least April 8th, 2014.
At the beginning of this process, the Director at the Ministry of the Environment came forward acknowledging that a noise receptor had been identified that was within the 550m setback established under the Green Energy Act regulations (O. Reg 359-09).
The Tribunal has now cancelled all Hearing Dates and called an Adjournment until April 8, 2014 at which time the Tribunal will re-assess the status of the proceedings. The Director at the Ministry of the Environment must now bring forward his decision to revoke, amend or take no action in writing.
If the turbine that is currently within the 550m setback is not eliminated from the plan, and either moved or left in place, an opportunity to comment on the revised plan would be important.
In the meantime…email action required!
- wpd has initiated what they claim is a Municipal Environmental Assessment, WITHOUT the consent of the City of Kawartha Lakes for roads in the project area. This is NOT a municipal EA. The email contact and website are: email@example.com or at:www.muncipalea2014.ca. Please copy comments to firstname.lastname@example.org.
- In addition, wpd has applied to the Ontario Energy Board to have access to Gray Rd. Road allowance and Wild Turkey Rd. under the Electricity Act. The posting on the Ontario Energy Board website requires that they notify adjoining landowners, the Clerk at the municipality and post the information on their website. There does not appear to have been any notice on the wpd website as of yesterday and no notice was provided to the City of Kawartha Lakes. Adjoining landowners who were NOT notified should advise the Ontario Energy Board and copy me email@example.com.
If you have any questions, please feel free to contact me.
City of Kawartha Lakes
Wrong to assume
The Prince Edward County Field Naturalists are wrong. Ontario Nature. Nature Canada. Both wrong. Dr. Robert McMurtry is wrong. The South Shore Conservancy is wrong. So too is the Prince Edward Point Bird Observatory. Alvar, bird, butterfly, turtle and bat experts are all wrong. The municipality of Prince Edward is wrong. As are the majority of County residents who believed Crown Land at Ostrander Point should be preserved—rather than industrialized for the profit of one corporation.
And now we have learned that Ontario’s own Environmental Review Tribunal is wrong. A Toronto court has said so. This ought to keep Premier Kathleen Wynne up at night.
The Tribunal’s Robert Wright and Heather Gibbs spent more than 40 days hearing evidence, challenging testimony and witnesses and weighing competing claims. They began their task in a snowstorm in February; and delivered their decision on a hot July day last summer. Wright and Gibbs visited Ostrander Point. They walked around. They saw, with their own eyes, what was at stake.
They dug deep into the evidence. They weren’t satisfied that the Ministry of Natural Resources (MNR) had sufficiently scrutinized the developer’s plans before issuing it a permit to “harm, harass and kill” endangered species, including the Blanding’s turtle.
They discovered that mitigation measures proposed by the developer to ensure overall benefit to the species were untested and worse, according to evidence presented before them—unlikely to work, particularly for the population at Ostrander Point.
However, the Toronto court ruled that Wright and Gibbs should have given the MNR the benefit of doubt.
“In my view, the Tribunal ought to have assumed that the MNR would properly and adequately monitor compliance with the ESA (Endangered Species Act) permit,” wrote Justice Ian Nordheimer in the decision.
But Wright and Gibbs, after listening to 40 days of testimony and examining nearly 200 documents entered into evidence, concluded they could not make that assumption.
The Tribunal’s error was that it didn’t believe the MNR would adequately look out for the Blanding’s turtle.
Wright and Gibbs had gone backward and forward through the proposals prepared and submitted by the developer and accepted by the MNR. They concluded the “Blanding’s turtle at Ostrander Point Crown Land Block will not be effectively mitigated by the conditions of the REA [Renewable Energy Approval].”
The court didn’t say Wright and Gibbs were wrong about their conclusions, but that they should have “accepted the ESA permit at face value” or explained better why their conclusions were different than the MNR.
“The Tribunal was obliged to explain how the fact that the MNR had concluded under the ESA that the project would lead to an overall benefit to Blanding’s turtle (notwithstanding the harm that would arise from the project) could mesh with its conclusion that the project would cause irreversible harm to the same species,” wrote Justice Nordheimer.
This is the bit that ought to send a cold shiver through Premier Wynne and anyone else who is worries about the welfare of endangered species in this province.
Read the full article here.
The Prince Edward County Field Naturalists have decided they will persevere, and appeal this decision. They need HELP! www.saveostranderpoint.org to donate or learn more
Ostrander Point Appeal Fund
Preserving critical natural habitats
“one of the worst possible places to construct a wind farm” (Ontario Nature)
Press Release – February 24, 2014
Round 2 goes to the Turbines
PICTON Ontario. On January 21-23, 2014, lawyers assembled in Osgoode Hall to hear the arguments of the Ministry of the Environment and Gilead Power against the ERT ruling that revoked the Minister’s approval of the wind turbine project at Ostrander Point. The decision of the Divisional Court was received on Thursday February 20.
Justice Nordheimer reached the decision that the Tribunal erred in its ruling. Unless appealed, this decision will result in the industrial development of Ostrander Point Crown Land Block on the South Shore of Prince Edward County (PEC).
Prince Edward County Field Naturalists are disappointed with the ruling of the Divisional Court and do not agree that the Environmental Review Tribunal was wrong. The group will be seeking leave to appeal the Divisional Court ruling to the Court of Appeal of Ontario.
Ostrander Point is in the middle of the PEC South Shore Important Bird Area. It is the home of the endangered Blanding’s Turtle and many other species at risk. Millions of birds fly through and stage for migration from the south shore of PEC in the spring and fall. The Crown Land Block is adjacent to the Prince Edward Point National Wildlife Area designated as an international Monarch butterfly reserve. Ostrander Point includes significant areas of globally imperilled alvar habitat. Gilead’s wind turbines project will expose migrating birds to lethal turbine blades at a time when they are most vulnerable. At nearby Wolfe Island the turbines kill more birds than any other installation in Ontario because the eastern end of Lake Ontario is such an important migratory pathway. The turbine pads and access roads will damage vast swaths of the Crown Land Block – and expose Blanding’s turtles to high road mortality and nest predation while destroying their habitat. The south Shore of Prince Edward County is the last undeveloped natural habitat along the north shore of Lake Ontario.
For these reasons the Prince Edward County Field Naturalists opposed the development plans from the beginning. Nature Canada, Ontario Nature, Environment Canada, the Suzuki Foundation, the Sierra Club, the Audubon Society, Bird Life International and the Royal Society for the Protection of Birds agree that Ostrander Point is the worst place for wind turbines.
The cost of the ERT appeal and subsequent defence of the ERT decision has been very expensive. PECFN is a small club of mostly retired people. People all through Ontario and in several other provinces have donated about $130,000 to the cost of this legal battle. This amount is at least $100,000 short of the estimated final legal bill. Fund raising continues through events and activities in the County and beyond. The small group is “girding their loins” and arming their slingshots to continue this David and Goliath struggle.
Please Donate. It is important.
For More Information Contact: Cheryl Anderson, Past President
|Turtles and birds: factors in the coming election?|
McLean’s Mountain, Manitoulin “Great Spirit” Island
Here from Rick Conroy of the independent Wellington Times, his wrap of the appeal of the Environmental Review Tribunal decision to rescind approval of a wind power project on Ostrander Point.
To harm, harass and kill
Appeal hearing considers who shall condemn endangered species in the name of green energy
By the time Heather Gibbs and Robert Wright concluded that the risk, posed by a proposed industrial wind project at Ostrander Point upon the Blanding’s turtle, was simply too great, and the damage likely permanent, the Environmental Review Tribunal (ERT or Tribunal) panel had heard more than 40 days of testimony. More than 188 exhibits had been entered into evidence. Their decision ran 140 pages.
That decision, to revoke the Renewable Energy Approval (REA) granted to Gilead Power by the Ministry of Environment (MOE), rocked the wind energy sector in this country. It sent government bureaucrats scurrying for cover.
If the fate of a turtle could block the development of an industrial wind project—the precedent could be a formidable roadblock to similar projects across the province and Canada. There are other turtles and endangered species that deserve the protection this panel afforded the Blanding’s turtle of Ostrander Point. The implications are profound.
Wright and Gibbs must have known their words, their actions, and their decision would be attacked, pulled apart and recast as naïve or simply mistaken.
An appeal to the Ontario Superior Court was the only door left open to the developer, Gilead Power Corporation, the wind energy lobby and their large team of lawyers.
So it was that the latest battle, played out in a courtroom over three days last week at Osgoode Hall in Toronto, was fought over what Wright and Gibbs said. What they wrote. What they did. And what they didn’t do.
Did Wright and Gibbs make an error in law? Or procedure? This was the narrow lens with which the three justices—Maria Linhares de Sousa, Ian Nordheimer and Kevin Whitaker—heard arguments in courtroom number three last week.
NEW EVIDENCE DENIED
Even before the appeal began, the developer’s attorneys attempted to change the ground rules by urging the justices to hear new evidence. The talented and able lawyers from McCarthy Tetrault argued that their client, in the intervening months since the Wright and Gibbs had delivered their decision, had undertaken steps it believed would address the Tribunal’s concerns.
Their argument failed to persuade the appeal court. The justices refused to widen its scope beyond whether or not the Tribunal had conducted themselves correctly and in accordance with the rules by which they are governed.
Courtroom 3 is located on the west side of the ornate and grandly decorated centre square of Osgoode Hall. Ceilings soar to about 40 feet. The length and width are only a few feet greater—forming a giant cube. The three justices, cloaked in floor-length robes are perched upon a raised platform before a thick hewnwood bench. The only marker of the current century is the laptop computer each judge keeps before them—though scarcely used.
Arrayed below them are rows of lawyers. Eric Gillespie and Nathalie Smith argued the bulk of the appeal for the Prince Edward County Field Naturalists (PECFN) and the Alliance to Protect Prince Edward County (APPEC).
Read the full article here.
UPDATED: Dufferin County, Dufferin Wind return to negotiating table
Read the full story here.
NEWS RELEASE January 24, 2014