Turtles vs. turbines: Ontario court case could have widespread repercussions

Report from Day 1 of the hearing

By Colin Perkel, The Canadian Press

TORONTO — An expert tribunal was entitled to conclude a proposed wind farm would devastate a population of already threatened turtles, Ontario’s top court heard Monday.

The case, which pits turtles against turbines, could have widespread repercussions as to how endangered species are protected across Canada, and raises questions about the protection of unspoiled areas

At issue is a proposed nine-turbine wind farm at Ostrander Point south of Belleville on the shore of Lake Ontario.

Prince Edward County Field Naturalists Club had successfully argued before the province’s environmental review tribunal that the project on the 324-hectare site would threaten Blanding’s turtles in the area.

Gilead Power, through its Ostrander Point Wind Energy, had Divisional Court overturn that decision in February. It argued the tribunal had made a half-dozen errors in concluding the project would cause “serious and irreversible” harm to the turtles.

Addressing the panel in the packed courtroom, lawyer Eric Gillespie, who speaks for the naturalists, pleaded with the three justices to defer to the review tribunal.

“The tribunal was squarely within its mandate,” he said. “We are simply asking this court to respect and uphold that original decision.”

Gillespie noted the tribunal heard evidence over 24 days but essentially based its decision on four duelling experts on the long-lived Blanding’s turtles.

The main issue, according to the tribunal, was that five kilometres of access road needed would lead to more turtle road kill, poaching and predation, and degradation of critical habitat.

The turtles, which are already in decline, can take up to 25 years to mature and survive for 75 years, court heard.

“It’s a highly vulnerable population,” Gillespie said.

Even a single individual matters, he said, when you’re dealing with a small local population.

In an interview, Gillespie said the Divisional Court decision — if allowed to stand — would harm protections for Canada’s threatened and endangered species given the limited data that exists for most of them.

In court, the justices were clearly troubled by the fact no detailed turtle population study exists.

They repeatedly questioned how the tribunal could rely on expert evidence about the impacts of increased turtle mortality rates without knowing how many of the critters there are.

“What good is the (expert) opinion?” Justice Gloria Epstein asked.

Gillespie warned against turning the Appeal Court into a “science academy.”

“We have to rely on the opinions of experts,” he said. “The tribunal did exactly what an expert tribunal is entitled to do.”

Another lawyer, Chris Paliare, said Divisional Court “subverted” the review tribunal by suggesting, as the project proponents maintain, there was no evidence as to what “irreversible harm” means.

“It’s parsing beyond belief,” Paliare said.

“The evidence is overwhelming this project will cause serious and irreversible harm.”

Gilead, which will continue arguing its case on Tuesday, maintains it can do what’s necessary to protect the turtles.

Stephen Hazell, a lawyer with Nature Canada which is intervening in the case, disputed that.

The proposed access roads are “directly” in the turtles’ habitat, Hazell said as the justices pored over maps of the area.

“That is irreversible harm.”

However, Gilead lawyer Neil Finkelstein said the tribunal didn’t conclude that access roads would necessarily be harmful to the turtles.

The tribunal’s reasoning, he said, simply didn’t hold together.

“Divisional Court was correct that the tribunal’s decision was unreasonable and should be set aside,” Finkelstein said.

Report from Day 2 of the hearing

By Garth Manning December 9 2014

Now we know what the stacks of paper before the 3 Judges and 12 lawyers were all about. During the day, the lawyers for Gilead and for the Ministry of Natural Resources and Forestry spent a mind-numbing three hours and six minutes concentrating on one theme. To do so, each constantly referred the Judges to pages among the many thousands in those stacks, which contained the complete transcript of the proceedings before the Environmental Review Tribunal and the Divisional Court.

The theme on which the Gilead and MNRF lawyers concentrated was this: the duty of a Tribunal and of a Court is – as a matter of law – to be reasonable in arriving at decisions. In their view, the decision of the ERT was unreasonable on its face and therefore the decision of the Divisional Court to overturn it was its reasonable duty.

In advancing this view, it was necessary constantly to refer to many different phases of evidence given at the ERT and to comments of the Tribunal members. This they did for the period indicated. In particular, the evidence given by Dr. Beaudry before the ERT and its effect on the Tribunal came in for scathing criticism.

Towards the end of a long day, the lawyer for CanWea (the trade association of the wind industry) struck a different and shorter note by contending that the decision made by the ERT was completely beyond its powers to make, and that it should have been made in the public interest, the requirement made of the Director under the Green Energy Act in whose shoes, it was said, the ERT stood.

Rebuttal remarks were provided by Chris Paliare, counsel for the South Shore Conservancy, directed at the mortality to the turtles which would be caused by the nine access roads required, the amount of concrete and heavy equipment which would be moved along those roads and installed in, under and on the land. Eric Gillespie finished the hearing on behalf of PECFN with additional comments demolishing so-called points made by the opposition.

Justice Cronk thanked all counsel for their helpful submissions (a normal courtesy) and asked them to return in one week for a preliminary discussion about costs.

Her final remark was possibly the most intriguing of the day – “our decision will not be ready before Christmas”. Given that the Court of Appeal decisions normally take up to six months, could this mean that it might be available in the first month of the New Year?

We will see; meanwhile those of us in the County who feel strongly can rest assured that our concerns were dealt with by a highly competent Bench in an open and transparent manner, and by outstanding counsel for PECFN, SSC and Nature Canada.