By Cheryl Anderson Prince Edward County Field Naturalists 

This report only deals with the first part of the day today. The PECFN counter appeals and cross appeals and the intervener South Shore Conservancy was completed in the late morning and the afternoon was devoted to the APPEC appeal. Your PECFN contingent wended their weary way home after lunch.

Chris Paliere, legal representative for the SSC spoke first.  Mr. Paliere gave a succinct and direct analysis of the legal issues SSC has with the appeal of theERT ruling.  Pointing out that in order for the endangered species permit to be granted expertise should be expected from the MNR. Mr Paliere asserted that there was no evidence that the permit granting was anything more than a paper process. The Tribunal had the expertise to interpret broad undefined terms in the Green Energy Act and the Renewable Energy Approval. The Tribunal therefore was correct in only considering that the ESA permit was in effect. Therefore the conclusions reached by the Tribunal must be accepted.

This argument was countered by Mr. Wayland (correct spelling this time) and Mr. Hamilton for Gilead. The arguments centre on whether the ESA permit to kill harm and harass supersedes the Renewable Energy Approval of the project. In other words, the ERT cannot deny the project because the ESA permit is in place – and since the MNR has given permission to kill harm and harass endangered species then the ERT cannot find serious and irreversible harm to a species. Mr. Paliere was adamant that there are two separate issues and that the situation amounted to “poly-centric decision making”.

The PECFN cross appeal dealing with our contention that the ERT did not properly consider the evidence showing serious and irreversible harm to the Birds and Alvar was begun by Natalie Smith, who presented the facts in the case. Eric Gillespie carried on with the legal arguments. There was a discussion started by Justice Nordheimer regarding the damage done to Alvar by the Department of National Defence use of the areas of the South Shore in the early 1950’s for munitions testing. Eric’s assertion that the DND damage was minimal was countered by both Sylvia Davis for the MOE and Mr. Wayland for Gilead. They were trying to say that the damage by the munitions testing was in some way analogous to the damage that would be caused by wind turbines and roads. Following from the argument was the assumption that when the IWT’s were removed after twenty years the Alvar would regenerate similar to the regeneration after the munitions testing.

According to Eric’s submission, “in dealing with the issue of birds the Tribunal failed to provide and interpretation of scale.” In other words if there are many birds of a species that is abundant on the site then chances are that there will not be serious and irreversible harm to that species. However, if there is a bird or a few birds of an endangered species on the site then the chances of severe and irreversible harm to that species become greater. The Tribunal ruled, in spite of excellent witness testimony to the contrary, that PECFN did not prove serious and irreversible harm to birds as a result of the IWT project. Eric’s submission was that if the Tribunal had taken “scale” into consideration their decision would have been to deny the project on that basis.

As you can see these legal arguments can become complicated and sometimes are really best left to legal minds to interpret. Suffice it to say that Eric and Natalie were pleased at the end of the day with the way their arguments were received by the Court.

We will have to wait to see if the Divisional Court will let the ERT ruling re: Blanding’s Turtles stand and if they will reverse the ERT ruling on the Birds and Alvar as requested by PECFN.

Thank you as always for your continuing support as we fight to save Ostrander Point.

MNR, environmental tribunal not in court to defend decisions

By Cheryl Anderson Prince Edward County Field Naturalists January 22 2014

Interested observers continued to give up their personal time to attend the Divisional Court hearing today. About 40 people attended. It is wonderful how many people have been willing to come from the County in the middle of the week to support PECFN.

Sitting in the Court one begins to wonder about the whole process. PECFN is here to defend the decision of the Environmental Review Tribunal. The Tribunal is not in Court. The Ministry of Natural Resources is not in Court and yet the decision of that ministry to allow species at risk to be killed, harmed or harassed at Ostrander Point is being discussed at length. The Tribunal was a creature of the MOE and yet the MOE trying to prove that the Tribunal made the wrong decision. Shouldn’t the MOE be supporting its own creation? Myrna asks “Are we going down the rabbit hole here?”

The Gilead and Ministry of Environment lawyers spent the morning discussing whether the Environmental Review Tribunal’s decision was in conflict with the Environmental Protection Act and why there was no evidence given about the numbers of Blanding’s turtles at Ostrander Point, the amount of vehicular traffic or the potential increase in vehicular traffic if the project is approved. Throughout, the 9 turbine Industrial Wind Turbine project at Ostrander Point was described as a” Public Infrastructure Project”. As you can imagine, this description made the majority of the observers gag! The next topic was the suggestion that the Tribunal should have considered alternatives to the project – i.e. made a provision that the roads be closed to the public and offered to approve the project with that condition. Again there was protracted discussion about the relationship between the ERT and the ESA permit issued by the MNR.

Eric Gillespie spent the afternoon responding to the arguments of the MOE and Gilead. At this juncture we have to say a very special “Thank you” to Natalie Smith. Natalie spent the fall analysing the ERT decision and preparing for the counter appeal by Gilead and the MOE. She has been at Eric’s side throughout and provides the extra knowledge to make sure that we are successful in defending the appeal.

Justice Nordheim put a little wrinkle in the proceedings when he asked Eric to show him where in the ERT analysed the difference between “serious” and “irreversible”. He wanted to be able to follow the ERT’s reasons for coming to the decision that the Gilead project would cause irreversible damage to the Blanding’s Turtles at Ostrander Point. Of course, Eric and Natalie were able to find several instances in the decision that showed the analysis of the ERT and how they came to the decision to turn down the Gilead project.

The appeal continues tomorrow morning at 9:30. The APPEC appeal is scheduled for Thursday afternoon. I will report on the final few hours of the PECFN appeal tomorrow evening when I get back to the County. Thank you to everyone for your continued support and for the encouraging messages.

Wind farm lawyer argues tribunal exceeded authority

By Cheryl Anderson January 21 2014

The court room was full to capacity for the first day of the Divisional Court counter appeal.  It is a gorgeous 2-story room with a large relief of “Justice” behind the bench.  The ceiling is decorated with plaster reliefs and a fancy painted border.  There were about 50 supporters of Ostrander Point filling every possible seat.  Thank you to all who made the trip to Toronto on a very cold day to support PECFN.

Justices Nordheimer, Linhares de Sousa and Whitaker presided over a phalanx of lawyers.  In addition to Eric Gillespie and Natalie Smith, 3 lawyers represented the Ministry of the environment, @ lawyers (and assistants) represented Gilead, 2 lawyers were present for the Canadian wind Energy Association and 2 lawyers represented the South Shore Conservancy.  After a brief discussion and with direction of the bench the hearing was scheduled for 3 days, finishing on Thursday.  The APPEC appeal will be heard on Thursday afternoon.

The morning and afternoon right until about 2 pm was taken up with the argument about whether or not Gilead should be able to introduce new evidence regarding turbine access roads and gates.  This evidence was introduced after the Environmental Review Tribunal decision in an effort to respond to the ERT’s concerns about Blanding’s Turtle mortality due to roads.  Eric Gillespie mounted a brilliant argument against allowing new evidence at this point in the proceeding and ultimately the Justices agreed with him, dismissing the request to introduce new evidence.

Finally, after the afternoon recess the main appeal began.  The rest of the day was taken up by Mr. Hamilton for Gilead explaining the Environmental Protection Act (EPA) and Act the Endangered Species Act (ESA). He was trying to convince the Justices that the Environmental Review Tribunal (ERT) did not have authority to supersede the ESA permit to kill harm and harass that was granted by the Ministry of Natural Resources (MNR) because the ERT is a functionary of the Ministry of Environment (MOE) through the Renewable Energy Act (REA).  At4:30 court was adjourned for the day.

I am sure you can see that acronyms and initials were being thrown around wildly – by the end of the day I really HHE!  We celebrate; however, that the Justice’s agreed with us that no new evidence should be part of this hearing. More tomorrow…..

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