Blandings Turtles vs turbines court drama continues

UPDATE Jan 19 – The ERT hearing scheduled Wednesday in Wellington has been cancelled.

Late last Friday APPEC’s legal counsel received the reply submissions from the Approval Holder and the Director on the White Pines appeal. On the same date, APPEC’s counsel also received the written decisions of the Tribunal on previous motions raised during the course of the hearing.

During a telephone conference call Tuesday morning, the Environmental Review Tribunal agreed to the consented solution of the parties to allow APPEC and Mr. Hirsch until Friday to submit replies and cancelling of the hearing Wednesday in Wellington.

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Prince Edward County Field Naturalists and South Shore Conservancy supporters attended a hearing in Toronto Friday to hear final oral submissions. The following report, from PECFN member Cheryl Anderson:

By Cheryl Anderson
On Friday, Jan 15 Heather Gibbs and Robert Wright – the Environmental Review Tribunal (ERT) panel – convened yet another day of hearings into the PECFN’s 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.

We were in a smaller room at the ERT offices in Toronto this time, with only about eight desk spaces and 20 chairs available for spectators. All the chairs and desks were full. About 15 PECFN and SSC supporters from Prince Edward County made the trip to Toronto.

This hearing was held to hear final oral submissions from Eric Gillespie, representing PECFN, Chris Palliere representing SSC (intervenors supporting PECFN), Douglas Hamilton, representing Gilead Power and Sylvia Davis, representing MOECC.

This “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’s, 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 Palliere spoke, also disagreeing with Mr. Hamilton. The panel reserved its 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 Palliere) 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, Jan. 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.