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Ministry expert admits he advised not to allow initial ‘kill, harm and harass’ permit

The tribunal's two-person panel, lawyers Robert Wright and Heather Gibbs, confer.

The tribunal’s two-person panel, lawyers Robert Wright and Heather Gibbs, confer. 

Admission by an MNR senior manager that his initial advice was not to allow a permit to “kill, harm and harass” the Whip-poor-will and Blanding’s turtle at Ostrander Point halted the third day of Environmental Review Tribunal proceedings Friday in Demorestville.

Witness Joe Crowley, a species at risk expert herpetologist with the Ministry of Natural Resources and Forestry, was on the stand Friday to provide a statement and answer questions about the effectiveness of various mitigation measures proposed by industrial wind turbine developer Gilead Power to protect the endangered species Blanding’s turtle.

Cheryl Anderson, of the Prince Edward County Field Naturalists, said this unexpected turn came at the end of the day when Crowley was asked about his role in the granting of the Endangered Species Act permit for the project on the south shore of Prince Edward County.

“Mr. Crowley stated his advice at the time was not to allow the permit because the project roads would prove a risk to the site’s indigenous Blanding’s Turtles,” said Anderson.

The argument was made by PECFN counsel Eric Gillespie that it appeared a senior manager at MNRF had advised against approval of the Ostrander project at the very onset.

“Mr. Gillespie requested documentation on that advice,” said Anderson. Mr. Crowley was unable to produce any documentation and asserted the final decision on the project was not his.”

Following much legal discussion, the tribunal’s two-person panel, lawyers Robert Wright and Heather Gibbs, issued a ruling that the Ministry of Natural Resources and Forestry witnesses produce all papers and electronic correspondence to date relating to roads and Blanding’s turtle and the renewable energy approved project and site.

The tribunal is to resume on Sept. 23, 24 and 25.

“From the beginning several years ago, we were astounded that the Ministry of Natural Resources would issue a permit that allowed development of a site as important to species at risk as Ostrander Point,” said Myrna Wood, PECFN president. “Over the years we continually have reminded the Ministry of Environment and the Ministry of Natural Resources that their responsibility to protect species at risk was being ignored by allowing development at Ostrander Point.”

The Ontario Court of Appeal in April reversed a lower court ruling and reinstated the finding of the 2013 Environmental Review Tribunal that “serious and irreversible harm” to threatened Blandings Turtles will occur if the project operates as approved. The court determined a return to the Environmental Review Tribunal to allow developer Gilead Power the opportunity to bring “new evidence” about gates on the access roads and consider plans to mitigate destruction of habitat and loss of Blandings turtles.

Crowley was the witness on day three of the tribunal. He was qualified as an expert due with a long history of interest and work in the field of herpetology and helped to develop the Ontario Herpetology Atlas, a citizen science project, while working with Ontario Nature, before his tenure with the MNRF.

With the ministry, he advises staff, partners and conservation groups on development of species at risk protection plans. He is also a member of the reptile and amphibian sub- committee of COSEWIC (Committee on the Status of Endangered Wildlife in Canada).

Crowley provided answers to many questions about the effectiveness of various mitigation measures proposed to protect the turtles.

Gates are proposed on about six road intersections on the site including the intersection of Helmer Rd and Petticoat Point Lane.

“Mr. Crowley indicated he felt gates would reduce the risk of turtle mortality to public vehicular traffic, however, the presence of roads would increase the probability of turtles nesting in a place that would make them more vulnerable to predation and the roads were unlikely to deter poachers,” said Anderson.

Wednesday’s opening day testimony from Dr. Frederic Beaudry, of Alfred University, New York, ended at 6:30 p.m. and continued Thursday morning until 10 a.m.

Lawyers for Gilead and MOECC questioned qualifications of Kori Gunson, an expert on road ecology.

“When that was unsuccessful, the Gilead lawers objected to several of her statements in her presentation,” said Anderson. “There was a lot of argument about whether she was qualified to speak about hydrology. She explained that ecology includes effect on air, water, vegetation and animals.”

Anderson notes tense moments when one of Gunson’s slides showed a map of the compensation property.

“Apparently the ERT had agreed this information was confidential to keep potential poachers away from the area but eventually it was agreed only the tribunal would view the slides with the offending map.”

In Gunson’s cross-examination she was questioned about how her testimony fit into her opinion of mitigation plans and the effects of mitigation after five or 10 years.

Day one here: http://countylive.ca/blog/?p=55201

Meanwhile, Prince Edward County has official status when hearings begin next month regarding appeals of the White Pines industrial turbine project, also on the south shore of the County.

PEC council endorsed an application for party status at the ERT pre-hearing scheduled for Sept. 9 in Wellington. The main hearing is set for Oct. 5.

wpd Canada received ministry approval for the project in July for 27 turbines in South Marysburgh and Athol – two fewer than requested.

Appeals, based on “serious harm to human health and the natural environment” were filed by John Hirsch, a local businessman and conservation board member; the Alliance to Protect Prince Edward County,a nd the South Shore Conservancy. wpd is also appealing to gain insight into why two turbines were eliminated.

 

 

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  1. Olmanonthemtn says:

    Perhaps this exercise is a matter of smoke and mirrors designed to quiet us bumpkins. I wonder what the political and personal connections of these players are in this dog and pony show.




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  2. Kathryn says:

    Just wondering……why do we have ministries, specialists and scientific advisors, if their expertise in their fields’ are not respected!! Listening to the experts should be the prevailing decision, otherwise this whole exercise is obsolete!!




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  3. Sue3 says:

    If the MNR was ignored, it really makes you wonder how many other ministeries are ignored in the whole process.
    Who, exactly, is making the final decision on any of these projects?
    Whoever is giving the final stamp of approval is the one we need to hear from, not just on the county projects, but on every project in the province.




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  4. Susan says:

    How serious and impacting is the MNR’s managers admission that he had advised against approval?




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  5. County Resident says:

    @ Keen: And on reflection, Gillespie should seek an immediate stay in the Tribunal proceedings, and bring on a motion for disclosure and particulars- ie., get the Tribunal to order full disclosure of all internal Ministry memoranda, minutes, etc. relating to Ministry assessments.

    PECFN, AAPEC, CCSAGE et al. should also consider retaining a Toronto “tower” litigation firm (Gowlings, Lenczners, Harbin Pitch) to sue the Ministry and named officials for civil damages- officially induced error, negligence, etc. This process has become both farce and outrage.

    It is quite possible that senior LPO apparatchiks and Cabinet members were orchestrating this. Only a judge’s Order can hope to get to the truth- as, quite likely, the MNR bureaucrats were prepared to disclose same but for political intermeddling…




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  6. Chris Keen says:

    @County Resident – I agree. Having heard most of the testimony from MNR employees during the original ERT in 2013, I felt that many of them, if they really were the scientists they professed to be, must be very uncomfortable with some of the testimony they gave. Some of them really did look like deer caught in headlights. Now I wonder if they all actually knew the MNR had NOT agreed to support the project. If so, I wonder if this makes any of their testimony supporting, or suggesting mitigation works, actually perjury?




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  7. County Resident says:

    Unbelievable (in normal circumstances; ie., pre-McGuinty and Wynne)- failure to disclose by a Crown Ministry official in a protracted court and administrative tribunal process. I’d like to see the co-Chairs cite this bureaucrat and the Minister for contempt. Gillespie deserves the OO for prising this admission out of the MNR bureaucrat. The senior LPO cabal cannot be pleased…




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  8. Sam says:

    Richard, the last time I checked the scrap price for steel it was $140 per ton. It would take a lot of gates to be worth a criminal charge. Better to stick with “recycling” copper at $5000 per ton.




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  9. Richard Howes says:

    Surprised no one has asked how the wind companies are going to stop local scrap collectors from recycling these proposed gates?




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  10. Alice Langley says:

    How many other experts has the government ignored in its push for wind power? A source of power that is unreliable, and which damages the environment it’s supposed to be saving? How many experts were ignored in the 2010 Medical Officer of Health report? The 78-turbine Niagara Region wind power project? This is another scandal for the Ontario government.




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