Victory for environment, community at Ostrander Point

Ontario Coat of Arms

The people of Prince Edward County have been battling a wind power project planned for–and supported by the Ontario government–for more than six years. An Important Bird Area and staging area for hundreds of thousands of migratory birds, and home to endangered species, Ostrander Point was a fragile environment— not suitable, most thought, for a huge, utility-scale, wind power project.

The Environmental Review Tribunal released its decision today, prepared by co-chairs Robert Wright and Heather Gibbs.

Here is a news release from the Prince Edward County Field Naturalists and their lawyer, Eric Gillespie.

TORONTO, June 6, 2016 /CNW/ – The endangered Blanding’s turtle has come out ahead in its race to protect the species and its habitat in Prince Edward County.

The Ontario Environmental Review Tribunal ruled today that the Ministry of Environment and Climate Change permit related to proposed industrial wind turbines on the Ostrander Point crown lands should be revoked.

“This is a great outcome for everyone involved and for the environment” said Myrna Wood of the Prince Edward County Field Naturalists, the appellant. “It’s taken some time, but with this result the effort has clearly been worthwhile” said Eric Gillespie, legal counsel.

SOURCE Eric K. Gillespie Professional Corporation

A key point in the decision was the concepts that there must be balance between preserving the natural environment and wildlife and the goals for “renewable” power generation.

The Ontario government has approved wind power projects in other areas where environmental protection is a concern.

Will the government of Ontario do the right thing and now cancel contracts for utility-scale wind power in these locations?

ToughonNature

Mayors, citizen groups meet with Environmental Commissioner on wind farms

Citizens, municipal and provincial politicians and environmental groups met with Ontario Environmental Commissioner yesterday, detailing environmental, health and economic impacts from wind power projects and thousands of complaints about turbine noise. The Commissioner says she can’t do anything

Prince Edward County councillor Steve Ferguson and Mayor Robert Quaiff, and Warren Howard of Wind Concerns Ontario at the meeting table in Toronto yesterday [Photo: Todd Smith MPP]

April 5, 2016 TORONTO—

Wind Concerns Ontario was one of the presenters at a meeting in Toronto Monday with Ontario’s new Environmental Commissioner Dianne Saxe. The meeting was organized and led by MPP Lisa Thompson,  environment critic for the Progressive Conservative Party of Ontario.

Wind Concerns Ontario (WCO) introduced its presentation by stating that our members of the coalition of community groups and individuals are about the impact of industrial- or utility-scale wind power development on the economy, environment and human health. “That sounds like three things, but it isn’t,” President Jane Wilson told the Commissioner. “The environment is everything: it is the economy, it is the natural environment, and it is health.”

Warren Howard, in speaking for WCO, detailed the fact that Ontario’s noise regulations are inadequate to protect health, which is borne out by research including the Health Canada noise study and the Cape Bridgewater study, to name two. He said that WCO learned from the Ministry of the Environment and Climate Change that there are more than 2,700 files of noise complaints. Details have been requested under Freedom of Information from the Ministry but not produced after a year; the matter is now in the hands of Ontario’s Privacy Commissioner.

Wind Concerns told the Commissioner that it is not merely audible noise that is the problem but infrasound/low frequency noise that produces unique sensation among some individuals exposed to the emissions. The group referred to several individual locations as examples of problems such as Prince Edward County where an eminent acoustics specialist testified before the Environmental Review Tribunal that virtually everyone in that community would be exposed to the turbine noise emissions. WCO also mentioned the Niagara project where thousands of homes will be within 1.5 km of 77 industrial-scale turbines. By conservative estimates, as many as 1,000 people could be affected by exposure to the noise emissions.

WCO concluded its presentation by asserting that the Ministry of Environment and Climate Change is not fulfilling its mandate of ensuring a “healthy environment” for Ontarians. Wind Concerns asked the Commissioner for a full review of Ontario’s noise regulations under Section 61 under the Environmental Protection Act.

Other presenters made striking presentations including Barbara Ashbee of Victims of Wind, City of Kawartha Lakes councilor Heather Stauble, Prince Edward County councilor Steve Ferguson and  Robert Quaiff, Mayor of Prince Edward County, and Deputy Mayor Dutton-Dunwich, Bob Purcell. Representatives of citizens’ groups from Bruce County and Huron County also presented reports of environmental and health problems. There have been so many complaints of poor health from turbine noise emissions in Huron County, people told the Commissioner that, where the Health Unit has launched a formal investigation .

Mayor Quaiff detailed several environmental concerns about the two wind power projects proposed for Prince Edward County, saying that not only were the power plants to be built on land where endangered Blandings turtles and Little Brown Bats are found, the sites are also on important migratory pathways for birds. “Questions are not being answered,” he said, about the effects of materials used in turbine construction such as the reinforced steel bars and concrete foundations, which will leach into the water table. He added that the turbines will have a negative impact on the wineries locally, and the bird-watching areas. “The South Shore is the last undeveloped shoreline on Lake Ontario,” he said. “I think it should stay that way.”

MPPs Todd Smith, Laurie Scott and Jeff Yurek were also at the meeting.

In her closing remarks MPP Lisa Thompson said that while everyone wants to do the right thing for the environment, key parts of the wind power process are “not working.” “What is working,” MPP Thompson said, “is we have an Environmental Commissioner and I hope we can move forward.”

Commissioner Saxe said that her office is dealing with hundreds of issues and can realistically handle only five or six a year. She acknowledged “the passion” expressed in the meeting today but in the short term, she couldn’t do anything, and in the long term “we’ll have to see.”

MPP Thompson said that this serious issue is affecting “so many communities” that she hoped the Commissioner’s office would review all the information in the submissions presented.

(C) Wind Concerns Ontario

contact@windconcernsontario.ca

 

Amherst Island raises funds to protect environment

Citizens engaged in an appeal of the approval of a huge wind power project that will threaten wildlife and change a heritage landscape

Owls, Blandings turtle, and migratory birds all at risk from Amherst Island power project
Owls, Blandings turtle, and migratory birds all at risk from Amherst Island power project

February 17, 2016

The Association to Protect Amherst Island has formally launched a fund-raising campaign to assist with its legal actions against the huge Windlectric wind power project. An appeal is underway, with more hearings scheduled before the Environmental Review Tribunal in coming weeks, and a Judicial Review has been filed, based on details of the approval of the power project despite clear inaccuracies and inadequacies in the application.

More details:

The MOECC approved Windlectric’s Renewable Energy Application on August 24, 2015. Minister of Natural Resources and Forestry, Bill Mauro, approved an Overall Benefit Permit on the same day to allow Windlectric destroy the habitat of grassland birds on the Island.


Turbines are planned beside the world famous Owl Woods. Located on the Atlantic Migratory Flyway, the Island is a refuge for 11 species of Owls, wintering raptors, and grassland birds. 34 Species at Risk will be impacted.


The Ontario government claims to be a leader in environmental action but approval of a huge wind power project on Amherst Island will harm, not help the environment, say community leaders. “Approval of this turbine project indicates the hypocrisy of the government’s wind power program,” says Michele Le Lay, spokesperson for Association to Protect Amherst Island. “Constructing and operating wind turbines here will do great harm to the natural environment.”

 

After just one day, the group had raised over $2,600 toward its goal of $200,000.

Go to the fund-raising website here.

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

Wind power projects should be put to community vote: U Ottawa researcher

Dismissing concerns of communities not helpful, says research team. Sensitive landscapes need protection

Community protest at Dutton Dunwich.
Community protest at Dutton Dunwich.

Globe and Mail, January 25, 2016

Renewable energy developers – and those who regulate them – need to be more sensitive to the concerns of residents who are going to have massive wind turbines built near them, a group of Canadian academics says.

In a paper published Monday in the journal Nature Energy, the eight authors – six of whom are university professors or researchers – analyze why there is so much debate over the placement of wind turbines in Ontario.

Ontario has the greatest number of wind turbines of any province, and their construction has created considerable conflict between developers and those opposed to the installation of large industrial machinery in rural environments. Often these fights end up pitting neighbours against neighbours, and they can become big political battles at the municipal level.

Ontario has altered its rules since it first encouraged wind farms in its Green Energy Act in 2009, said Stewart Fast, a senior research associate at the University of Ottawa and one of the paper’s authors. But even though the new rules encourage more input from local governments and residents near proposed turbines, these changes haven’t been enough to stop the disputes, he said. …

Read the story here.

“The idea of some sort of community referendum on whether or not the municipality should support a project is probably a good thing.” –Stewart Fast, University of Ottawa

No more wind power contracts: Dutton-Dunwich Council to Wynne government

Got the message, Invenergy and Ontario? No means NO.
Got the message, Invenergy and Ontario? No means NO.

Dutton Dunwich, Ontario, January 14, 2016—

Dutton Dunwich Council passed a resolution at its regular meeting January 13, requesting that the Ontario government not sign any new contracts for wind power, and that it “not proceed with any related projects within our Municipality.”

Invenergy submitted a bid for a power project in the municipality during the 2015 bid process for Large Renewable Procurement (LRP). Eighty-four percent of residents in the area said NO to the wind power project when  the municipality conducted a survey last year.

Dutton Dunwich is also officially an unwilling host community to wind power projects.

Concerns noted in the resolution were the danger to wildlife from the industrial-scale wind turbines, the fact that Ontario has a surplus of power, and that the Chippewas of the Thames First Nation also do not support the power project.

“DDOWT  [Dutton/Dunwich Opposed to Wind Turbines*] is very pleased that our local Dutton Dunwich Council has passed this resolution,” said Bonnie Rowe, chair of the community group. “Our civic leaders continue to stress to Provincial government bodies that  84 percent of our our citizens are opposed to IWT being built in Dutton Dunwich.”

Council directed that the resolution be forwarded to Premier Kathleen Wynne, Energy Minister Bob Chiarelli, MPPs, and the Independent Electricity System Operator (IESO).

 

Read the resolution here: DuttonDunwich20160114091524101

 

*DDOWT is a community group member of Wind Concerns Ontario

 

Ostrander Point appeal nears end: power developer cancels testimony

Are we there yet?
Are we there yet?

 

The long, long saga of the appeal of the Ostrander Point wind power project, in which members of the Prince Edward County Field Naturalists (PECFN)  and the community fight to save the environment from the Ontario Ministry of the Environment, is nearing its end.

Here is a report from Cheryl Anderson of PECFN:

Today was the end of a long and exhausting journey for the members of PECFN, the supporters of our fight to Save Ostrander Point, our legal team and probably the opposing lawyers and the tribunal panel as well.  The last of the witnesses was heard this morning.  Shawn Taylor, [Dillon Consulting] a witness for the approval holder (Gilead) gave testimony about his success in aquatic and terrestrial rehabilitation projects.  In some projects, apparently, he was involved in creating artificial nesting sites for Blanding’s Turtles.  There did not seem to be any evidence; however, that the turtles actually used these artificial sites. Most of Mr. Taylor’s work seems to have been in restoration of wetland habitat for road construction.

The second witness for the day was to have been Mike Lord, president of Gilead.  After the lunch break the Gilead lawyers came back and announced that Mike Lord would not be giving testimony.

Everyone in the room gave a huge sigh of relief – we could not believe it was finally over.

Before January 15, the legal teams will be submitting written briefs and replies summing up the case.

On the 15th final oral submissions will be presented in Toronto and then the ERT panel will deliberate and write their final decision.

Meanwhile, PECFN continues raising funds.  On January 16 we present Winter Wonderland Walk.  This 3 km walk will proceed along Hilltop Rd and up Brewers Rd to Long Dog winery.  Long Dog has graciously agreed to provide mulled wine for the walkers and we will make sure there is also hot spiced cider.  We will also provide rides back to your car parked at the side of Hilltop Rd.  All you have to do is register for the walk and get a few people to sponsor you.  It should be a fun afternoon and we will raise some much needed money for the cause of keeping our South Shore Turbine free.

Register for Winter Wonderland Walk by contacting Cheryl Anderson at cherylanderson23@sympatico.ca or 613-471-1096

 

“Vicious irony” in who has to prove what at wind farm appeals

Topsy turvy

Wind-1

Wind approval process puts responsibility on citizens, not the developer, to protect the County

The thing that troubles Henri Garand about the Green Energy Act is the fact that regular citizens are held to a higher burden of proof than the companies they’re fighting against.

Garand, a member of the Alliance to Protect Prince Edward County (APPEC) has been sitting in on the Environmental Review Tribunal that is hearing an appeal to the approval of the White Pines wind turbine project, which would see 27 turbines built over Athol and South Marysbugh.

APPEC is one of the project’s appellants. The organization argues that the turbines would have a negative impact on the cultural heritage of the area, human health, endangered species and the land itself, some of which is rare habitat.

Lawyer Eric Gillespie, representing APPEC, summoned expert witnesses to prove that the experts wpd Canada—the company that owns the White Pines project— used in its approval process with the Ministry of the Environment and Climate Change (MOECC) were not valid.

Still, the six witnesses were downgraded to presenters, their testimony reduced in importance, a decision made by the Tribunal’s adjudicators, Marcia Valiante and Hugh Wilkins.

Christopher Currie, Cheryl Anderson, Richard Bird, Roxanne MacKenzie, Doug Murphy and Brian Flack presented their cases to the panel about the proposed project’s negative effect on water, birds, vegetation, human health, land use and property value respectively. Some of these arguments called out wpd’s experts on the validity of their information, but as presenters, that couldn’t be taken into account.

This is what Garand bemoans.

“In the topsy-turvy world of the Green Energy Act, the wind developer receives a project approval despite incomplete research, while ERT appellants have to prove their case without the ability and time to conduct the necessary research,” Garand wrote. “These vicious ironies defy common sense.”

The Tribunal did hear from expert witness Joe Crowley, who Gillespie summoned. Crowley was previously a witness for the MOECC in the still ongoing Tribunal appealing the Ostrander wind turbine project proposed by Gilead Power.

Crowley is a scientist employed by the Ministry of Natural Resources and Forestry (MNRF), and isthat ministry’s only expert on the Blanding’s turtle, an endangered species that inhabits the County’s south shore. At the Ostrander Tribunal, Crowley revealed that he had verbally warned against approving the project at Ostrander Point because of its potential to devastate the turtle population there.

That warning did not appear in any evidence submitted by the ministry, and the revelation caused the Tribunal to come to a halt while the MOECC and MNRF were ordered to search for any mention of Blanding’s turtles in the project’s approval process.

Crowley confirmed last week that at least 17 of the 29 proposed turbines in the White Pines project could also affect Blanding’s turtle habitat.

Gillespie has proposed two expert witnesses who would be able to reply to witnesses wpd will bring forward later in the process. They will be brought forward as expert witnesses, although parts of their statements that seem redundant will not be accepted.

No other expert witnesses have been heard yet; this week began with residents testifying about medical conditions that would be worsened by the turbines. Those witnesses, like the presenters, have less bearing on the panel’s decision.

Ontario at-risk species expert to testify at wind farm appeal today

ToughonNature

We received word late last evening that Joe Crowley, at-risk species expert with the Ontario Ministry of Natural Resources and Forestry is to testify at the appeal of the White Pines wind power project in Prince Edward County today.

The hearing is being held at the Essroc Community Centre in Wellington, Ontario.

Mr. Crowley was an expert witness at the Ostrander Point appeal, currently in its fifth phase, and testified that it was his professional recommendation that the danger to the Blandings turtle and other species at the Ostrander site was so great, a permit should not be granted. Mr Crowley has also commented the Blandings turtles range over the South Shore of Prince Edward County, the site of the other proposed wind power project, White Pines by wpd Canada.

The wind power developer denies this, and the endangered turtle was not even on the company’s permit regarding the Endangered Species Act.

At issue in these proceedings, for both appeals, is the fundamentals behind the Ontario government’s approval process for wind power plants. Documents have been withheld, expert advice ignored, and government staff have been shown to play the role of supporting and encouraging the power developments, not protecting the environment or wildlife.

The Ostrander Point appeal is on hiatus but may resume at the end of November; White Pines continues this week.

 

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.

The law and wind farms in Ontario: mix them and “you get litigation”

 

Canadian Lawyer, September 8, 2015

A few kilometres west of the eastern Ontario village of Consecon in Prince Edward County, on a narrow but busy stretch of road known as the Loyalist Parkway, there is a yellow road sign. It warns of turtles crossing the main automobile route to the popular Sandbanks Provincial Park — the Blanding’s turtle, to be precise.
The medium-sized turtle, with bright yellow throat and chin and domed shell, is classified as a threatened species in Ontario. It also has another distinction. So far, it is the only species, including humans, to derail at least temporarily a proposed wind energy project in the province.
There have been nearly 30 hearings before the Environmental Review Tribunal, seeking to stop so-called wind farms, since the enactment of the Green Energy Act in Ontario in 2009. Each time, local residents, usually in rural areas, have been unsuccessful in meeting the legal test to revoke or change the terms of a permit issued by the province for a wind energy project.
The one exception is the Ostrander Point plan to construct nine wind turbines in an area on the south shore of the county. The Ontario Court of Appeal earlier this year overturned a Divisional Court decision that would have approved the project. The appeal court sent the matter back to the tribunal for a second hearing because of concerns about threats to the safety of the Blanding’s turtle.
The case has also highlighted a statutory framework in Ontario that makes it difficult to stop a wind-energy project because of health and other concerns by local residents yet is arguably easier to block if certain species of wildlife are threatened.
Eric Gillespie, a Toronto lawyer who is representing the Prince Edward County Field Naturalists in the Ostrander hearing and has acted for many residents’ groups in other wind cases, says the circumstances are somewhat unique in Ontario.
Wind developments in other provinces have generally been constructed in areas without any nearby communities. In Ontario, most of the projects so far have been along the “highway 401 corridor,” says Gillespie, near a number of small municipalities. “When you mix wind projects with people, you get litigation,” he explains.
Many of the court cases have involved residents’ groups in rural communities. They have argued about the potential health hazards as a result of the sounds from wind turbines and other issues, including decreased property values. As well, there are concerns about what will happen to the large structures when they must be decommissioned in the next 20 or 25 years.
The provincial Environment Protection Act states that once a renewable energy approval has been granted by the government, the ERT’s jurisdiction is limited to deciding if the project will cause “serious harm to human health” or “serious and irreversible harm to plant life, animal life or the natural environment.” The onus is also on the party challenging the project to present the evidence that shows the harm will occur.
Gillespie says that, in terms of the requirements to gather the evidence, the renewable energy provisions are similar to other environment-related statutes. “What is different is that the Ontario government has created legal tests that are almost impossible to meet. The test requires you to show that there will be harm, unlike almost any other area of environmental harm,” he says.
For opponents of wind projects, the legal test is more difficult than that of pipelines, says Stephen Hazell, general counsel for Nature Canada, which was an intervener in the Ostrander case at the Court of Appeal.
Section 52 of the National Energy Board Act requires consideration of whether a pipeline project is desirable in the public interest. “It is a totally different standard,” says Hazell of the Ontario renewable energy test. “It is the toughest standard I have ever seen.”
It is not that Nature Canada is opposed to wind developments, says Hazell. It is the process in place if there are objections that is the problem. “We need more wind projects. But it depends on where they are located,” he says.
The opposition to the Ostrander Point project is because “it is right on an important wetland” and could impact wildlife beyond that of the Blanding’s turtle, says Hazell.
Albert Engel, a partner at Fogler Rubinoff LLP in Toronto, who has represented a number of developers in the renewable-energy sector, agrees it is a “high test” for opponents of the projects. “It is a test that the legislature has decided is appropriate,” says Engel. At the same time, he explains there is a rigorous process to receive approval from the province and there are other provisions, such as setbacks of 550 metres from any dwelling that is not part of a wind project.
There is also an automatic right of appeal to the ERT, which a resident can file once a wind project permit has been granted, Engel explains. As well, “costs have never been awarded” against an unsuccessful party before the tribunal, he adds. For opponents, the process is relatively inexpensive to take a case to the tribunal, suggests Engel.
Opposition to wind projects has been loudest in rural communities in Ontario and is potentially a political issue for the provincial Liberal government. It is also facing an ongoing $500-million legal action related to a moratorium it put in place in 2011 on offshore wind developments.
In terms of the framework in place for challenges to approval of onshore projects,  though, that is unlikely to be changed. “There are no plans to amend the EPA to expand the scope of issues that can be raised,” says Lindsay Davidson, a spokesman for the Ministry of the Environment and Climate Change.
Last fall, a study released by Health Canada concluded the noise from wind turbines could be an “annoyance”* to nearby residents but stated there was not sufficient evidence to link it to other conditions such as stress, nausea, or fatigue. The health implications “are a matter of great debate,” says Gillespie, although he agrees these arguments have not been successful in tribunal cases. Still, he questions whether wind projects are a good economic choice. “There are transmission and storage issues. Green energy is probably the most heavily subsidized in the world,” says Gillespie.
The industry organization for the wind sector in Canada agrees that it probably could have done a better job in responding to the criticisms in recent years. “That has been a lesson learned for the industry,” says Brandy Giannetta, Ontario director of the Canadian Wind Energy Association.
A new procurement process put in place by the province that requires community consultations when applying for an energy contract will help address concerns about public involvement, says Giannetta. The process should lead to contracts awarded later this year at prices about half of the ones already in place. The new process requires at least one community meeting when applying for an energy contract. It also includes the “Aboriginal Price Adder,” which can permit a developer to increase prices by about 10 per cent if there is a First Nations stake in the project.
The changes may potentially reduce the amount of litigation over wind projects, initiated by residents’ groups, says Engel. “The hope is that the process will result in the awarding of contracts in locations where the developments are welcomed,” he says.
However, these changes are unlikely to impact disputes over potential threats to wildlife, even when the developers have taken steps to try to mitigate the impact of a wind project.
In the Ostrander case, the company obtained an Endangered Species Act permit from the Ministry of Natural Resources. It permitted some harm to the turtles subject to certain conditions, which included setting aside a large area of land outside the project for a natural habitat. The permit also requires an “overall benefit” to the species so it is better off in the province than before the project started.
In the first tribunal hearing, the panel focused only on the impact to the turtle on the project site and the surrounding landscape in deciding there was serious and irreversible harm.
The legislative framework involving wind energy projects “does not sit well with the Endangered Species Act,” says Douglas Hamilton, who is representing Ostrander Point GP Inc. Obtaining a permit under the ESA “may potentially hurt you in front of the tribunal,” says Hamilton, a partner at McCarthy Tetrault LLP in Toronto.

Doug Hamilton, counsel for Ostrander Point developer: the legislative framework doesn't sit well with the Endangered Species Act
Doug Hamilton, counsel for Ostrander Point developer: the legislative framework doesn’t sit well with the Endangered Species Act

In its ruling that sent the matter back to the tribunal, the Court of Appeal upheld the original decision that the project will cause serious and irreversible harm to the turtles. But it also permitted Ostrander to present fresh evidence at the new hearing and for the panel to address the issue of remedy. Hamilton says Ostrander is asking for the project to be approved, with conditions.
The tribunal’s ultimate decision could result in protections to the Blanding turtle far beyond that of a road sign on a heavily travelled route in one of Ontario’s popular vacation destinations.

*Editor’s Note: “annoyance” is a medical term denoting distress, and is itself an adverse health effect.