Ostrander Point wind farm developer stuns appeal hearing Friday
On last hearing day, developer alleges bias and asks Tribunal panel to step down. Then the MOECC demands new criteria be used for the decision
January 16, 2016
The multi-year saga of the appeal of a wind power project approval at Ostrander Point on the South Shore of Prince Edward County continued yesterday in Toronto, at what was supposed to be a hearing of final oral submissions.
The day began slowly with the usual formalities.
Appellant lawyer Eric Gillespie said at the outset of the day that the purpose of the hearing was to review the proposed remedy to avoid killing endangered turtles. The developer needed to prove that the remedies will work, Gillespie said, and they have not.
Lawyer Chris Paliare said that the wind power project at Ostrander Point will be a costly experiment, with wildlife suffering as a result.
Then, counsel for the power developer Doug Hamilton stunned the audience and panel with his assertion that the panel was biased and should recuse itself. While both lawyers for the appellant and Intervenor objected, Chris Paliare said that this was the result of a “sinister plot” by the developer who saw that “things aren’t going their way.” It was preposterous to bring up such an unfounded and serious motion at this stage of the proceedings, Mr Paliare asserted.
Even more amazing was the introduction of the concept of “public interest” into the decision process, by Ministry of Environment and Climate Change lawyer Sylvia Davis. “It’s OK to kill turtles,” Ms Davis told the panel, if it’s for wind power because the project will reduce greenhouse gases and that is in the public interest.
“Are you saying that ‘public interest’ trumps everything?” asked panel chair Robert Wright.
“I’m not saying that,” Ms Davis answered, then said she didn’t have any further information.
Eric Gillespie said that in light of the issues now raised by the MOECC, he would be asking for an adjournment of the Amherst Island, White Pines, and Settlers Landing appeals until the issues were resolved.
Lawyers were directed by the panel to file final submissions by Wednesday January 20th.
Here is a report from the appellant, Prince Edward County Field Naturalists.
The drama continues
by Cheryl Anderson, Prince Edward County Field Naturalists
On Friday Jan 15 Heather Gibbs and Robert Wright of the Environmental Review Tribunal (ERT) panel, convened yet another day of hearings into the Prince Edward County Field Naturalists’ (PECFN) appeal of the Ministry of Environment and Climate Change (MOECC) Renewable Energy Approval (REA) of the Gilead Power Industrial Wind turbine project at Ostrander Point Crown Land Block.
This hearing was held to hear final oral submissions from Eric Gillespie, representing PECFN, Chris Paliare representing the South Shore Conservancy or SSC (intervenors supporting PECFN), Douglas Hamilton, representing Gilead Power and Sylvia Davis, representing MOECC.
This so-called re-hearing was brought about by the Court of Appeal decision last year which confirmed the original ERT decision, but sent the matter back to the ERT for consideration of Gilead’s proposed remedy to serious and irreversible harm to the Blanding’s Turtle — that is, to install gates on the turbine access roads. Arguments about this issue were heard throughout the late summer and fall and were remarkable for the admission from the Ministry of Natural Resources and Forestry (MNRF) Blanding’s Turtle expert, Joe Crowley, admission that he had recommended against the project when it was first proposed due to the danger it would cause to the population of Blanding’s Turtles at the site.
The final submissions of the Gilead Power legal team included two issues that began the hearing. One was the assertion that the time for making any decision about the remedy to the project had expired. The other was that the panel, specifically Mr. Wright was biased and that as a result the panel should recuse itself. This assertion was based on the fact that after giving the decision on Ostrander, Mr Wright was on the panel for another appeal where the ruling quoted from the Ostrander decision. On that panel with him was the ERT vice chair Jerry DeMarco, spouse of Anne Bell, Ontario Nature’s director of Conservation and Education.
In contrast to the usual, Ms. Davis did not agree with Mr. Hamilton in these two matters. Eric Gillespie and Chris Paliare spoke, also disagreeing with Mr. Hamilton. The panel reserved their decision (they will let us know later what they have decided).
We then came to the main arguments for the day which were oral presentations which essentially set out again all the reasons that PECFN (Eric Gillespie) and SSC (Chris Paliare) had for denying the remedy. This evidence relied on and reiterated the information given by Dr. Fred Beaudry and Ms. Kari Gunson at the hearings in the fall. Arguments were presented against the position of the approval holder (Gilead) and the MOECC that gates on the roads would save the turtles from serious and irreversible harm.
After lunch Mr. Hamilton and Ms. Davis had their turns to respond to the arguments presented by PECFN and SSC. This was, as expected, a reiteration of the written material which was sent before Christmas. Both commented that by installing gates serious and irreversible harm to the Blanding’s Turtle will be reduced to merely ‘universal’ harm and therefore the project should be approved.
However, in her written submission Ms. Davis had introduced a new issue which she now emphasized. That is, the MOECC is asserting that it was acting in the public interest by approving the Gilead power project because it involves renewable energy. There ensued a “discussion” between Mr. Wright and Ms. Davis regarding the MOECC’s Statement of Environmental Values (SEV). Mr. Wright has required Ms. Davis (and all other legal representatives) to submit to the Tribunal by Wednesday January 20 the arguments she is using to support her contention that approving the Ostrander Point project satisfies (or doesn’t) the Statement of Environmental Values of the MOECC.
Eventually the Tribunal will issue a decision on the issue of timing and bias. The final decision on the remedy issue will follow.
For more information and for a link to help out with fundraising in this important legal action, please go to: http://savethesouthshore.org/overview-of-issues/#sthash.b2k6ItFm.dpbs