Tribunal continuation to be announced

OCT 30 – A day dedicated to documents left two witnesses to be heard at the Ostrander Point Environmental Review Tribunal hearings Friday in Demorestville. A teleconference to be held Wednesday is expected to determine further timing for the hearings.

Following procedural wrangling about documents disclosed by Ministry of Natural Resources and Forestry employee Karen Bellamy, her cross examination began by late morning.

A discussion ensued about how to handle the vast amount of documents. Normally each would be entered as an exhibit as it was discussed with the witness, but this was deemed to be a cumbersome. The tribunal panel deemed the process necessary and urged the cross-examination forward.

Prince Edward County Field Naturalists lawyer Eric Gillespie started into the 1,500 documents. Most of his questions concerned the process of how the Endangered Species Act was to be implemented and the plans for the Impact Management Plan.

As it became obvious the process was not productive, Gillespie suggested – with the agreement of the Ministry of Environment and Climate Change council – that the documents could be grouped into categories with representative documents presented to the tribunal.

“Over the lunch break we went through the three volumes of documents and categorized them into groups such as: articles that could be removed from the record; articles that had been previously referred to and a broad category of newspaper articles, power points, draft ESA permits and EBR postings and a group of unclassified emails,” said Cheryl Anderson of the PECFN.

The gist of Gillespie’s argument was that documents showed clear indications that Bellamy’s role was to co-ordinate and promote the Ostrander Point development.

“The written notes that were released through a freedom of information request included a communication between Bellamy and Mike Lord, of Gilead Power, regarding a CBC interview that took place in 2011,” said Anderson. “It was revealed that the “House Notes” about Ostrander Point that were delivered to assistant deputy ministers and deputy ministers were reviewed and approved by her. There were 31 newspaper articles in the released documents that showed that she was regularly receiving media stories about Ostrander Point.”

Sarah Kromkamp, MOECC lawyer, continued to assert that none of the documents were relevant to the remedy case before the tribunal.

Gillespie said some were not relevant, but most were. In his closing statement, he pointed out the lack of information about the Blanding’s turtle in any of the documents.

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OCT 29 – Further to Thursdays’s telephone conference call the tribunal panel has advised the hearing will continue as scheduled Friday at the Sophiasburgh Town Hall in Demorestville beginning at 10a.m.

The hearing is expected to continue with the evidence of Bellamy and the Approval Holder’s witness following, time permitting. The parties may agree to change the order of hearing of the evidence of these witnesses.

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Tribunal adjourned again over release of documents

OCT. 28 – The Ostrander Point Environmental Review Tribunal has been adjourned again awaiting the release of ministry documents.

Day two of the hearing in Ameliasburgh began with a motion from Prince Edward County Field Naturalists lawyer Eric Gillespie, demanding release of all documents from ministry of natural resources and forestry employees Joe Crowley and Karen Bellamy.

At the adjournment Sept. 4, the tribunal had requested all related ministry documents, “however, it became evident during Bellamy’s witness qualification that some documents released by Freedom of Information requests had not been released as a result of the Tribunal order; and then it seemed that other documents that should have been released were not,” said Cheryl Anderson of the PECFN.

The question of the release of these documents was argued through almost the entire day. Though the tribunal decided Tuesday that Bellamy’s evidence would only be related to fact, not opinion, contention arose again on the issue of examination. As a result, her entire witness statement was examined to make decisions on which items would be heard.

Finally, at about 4:20 p.m. the examination of Bellamy began and she responded to questions from Sarah Kromkamp, MOECC co-council, about the Impact Monitoring Plan, Adaptive Management and the Endangered Species Act as they related to the permits for Ostrander Point.

Following a brief break at 5 pm to allow Gillespie to postpone a previously arranged teleconference, Bellamy was on the stand until 6 p.m.

Her cross examination by Gillespie and by the South Shore Conservancy will proceed when the tribunal resumes.

The parties expect a decision about the tribunal resuming on Friday in Demorestville may be made Thursday in a teleconference.

ERT being held in Ameliasburgh Tuesday and Wednesday and moves back to Demorestville on Friday.

ERT under way with ministry staff on stand

OCT. 27 – A full house attended the opening day of the second round of a three-day Environmental Review Tribunal to consider remedy to mitigate destruction of habitat and loss of Blandings turtles.

The Prince Edward County Field Naturalists (PECFN) is facing industrial wind turbine developer Gilead Power Corporation continuing its case for nine industrial wind turbines at Ostrander Point, on the southern shore of Prince Edward County.

Three days of hearings ended Sept. 4 after ministry witness Joe Crowley stated his early advice was to not allow the granting of the “kill harm and harass” Endangered Species Act permit because the project’s roads would prove a risk to the site’s Blandings turtles. PECFN counsel Eric Gillespie requested documentation.

The tribunal’s two-person panel, lawyers Robert Wright and Heather Gibbs issued an order for MNRF witnesses to produce all papers and electronic correspondence to date relating to roads and Blandings turtles and the renewable energy approved project and site.

Wright and Gibbs presided over the 2013 ERT which was held over 40 days, had 185 exhibits and testimony of 31 expert witnesses.

Tuesday started with the continuation of the cross examination of Joe Crowley, a species expert with the Ministry of Natural Resources and Forestry. His expertise is in amphibians and reptiles, specifically Blanding’s turtles.

Gillespie took Crowley through the released documents to determine what his role had been in the issuance of the permit to “kill harm and harass” species at risk at Ostrander Point.

In response to Gibbs’ question seeking clarification about ballpark figures on turtle population Crowley stated “If we really wanted to know about the abundance of turtles we would have to count them for a few years.”

The audience rumbled quietly with “Good idea” and “Let’s do it”.

Following a break for a late lunch, Karen Bellamy, a manager with the Peterborough MNRF, took the stand at 2:30 p.m. Arguments about whether she would be qualified as an expert witness on Blanding’s turtles or on a witness of fact only ensued. Much time was spent on documents disclosed as a result of the Tribunal’s order and also on documents disclosed as a result of Freedom of Information requests made by South Shore Conservancy and PECFN.

At 5:45 pm the Tribunal ruled that Bellamy would be qualified as a witness of fact, but not as an expert witness on Blanding’s turtle.

The tribunal continues Wednesday, beginning at 9:30 a.m. again at the Ameliasburgh Township Hall. There is no hearing Thursday. Friday the hearing continues at the Demorestville Town Hall.

Ministry of the Environment and Climate Change approval for the Ostrander Point project was issued Dec. 20, 2012.

“Over the past almost three years, we have worked through the ERT appeal, the resulting Divisional Court counter appeal and the subsequent hearing at the Appeal Court of Ontario which resulted in the order to return the matter to the ERT to hear the issue of remedy,” said Cheryl Anderson, of PECFN. “We have stood fast with the help and support of many donors and friends throughout Prince Edward County and beyond.”