Report on Remedy Hearing for White Pines Wind Project

August 1, 2016
by Paula Peel, APPEC

blandingsturtlecloseup.jpg.size.custom.crop.590x650At the end of June everything was on track for the remedy hearing.  We were encouraged to see our Tribunal members, Marcia Valiante and Hugh Wilkins, endorsing key findings in the Ostrander decision in their June 30 Order including the use of the Precautionary Principle and the ecosystem approach, its finding that harm should be evaluated based on the balance of probability and its finding that the Tribunal can “stand in the shoes of the Director” with full access to the scope of the powers given to the Director under the relevant part of the Environmental Protection Act and other regulations and policies.

However on July 12 the Tribunal issued a procedural statement that was highly prejudicial to APPEC.  In a July 27 teleconference with the Tribunal identified 11 issues of concern with the process the Tribunal had put forward for the Remedy Hearing, including allowing the Ministry of the Environment and Climate Change and WPD to introduce reply evidence after all APPEC’s evidence was served, filed and cross examined. This process is directly contradictory to the process the courts have established in the Rules of Civil Procedure.

The following day the Tribunal suspended its schedule and requested submissions from the parties on process.  One of our submissions deals with the “clock stop challenge”.   At this point in time there are only four hearing days left.  While the ERT is adjourned and technically the clock is stopped, Mr. Gillespie pointed out that legal work is still on-going with submissions, motions, qualifications of witnesses, evidence preparation, disclosure and many other tasks that typically take hearing time.

Other submissions will include requesting full disclosure from the Ministry of the Environment and Climate Change.  Mr. Gillespie noted that according to the rules the Ministry should have been disclosing information to the Appellants on an ongoing basis these past five months.   We are also requesting that the Ministry provides the actual wording in the revised REA up front, at the start of the hearing.  This is to ensure a fair hearing, which it clearly would not be if the Ministry and WPD are permitted to revise and add more mitigations “on the fly” during the hearing.

At this time there is a big question mark whether it will be an oral or a written hearing.  In its July 12 procedural statement the Tribunal only set aside one day for a hearing of final oral submissions in the County with the remainder of the hearing done in writing.

Needless to say the remedy hearing is delayed.  In the mean time APPEC is reviewing over 300 pages of material from wpd and the Ministry on the Blanding’s turtle and on Little Brown Bats.  APPEC will call our own expert witnesses to respond to their proposed mitigations.

Posted in Uncategorized, White Pines ERT

Disappointment as Amherst Island appeal dismissed by ERT

11 species of owls at risk

11 species of owls at risk

We have disappointing news from Amherst Island. The appeal of Windlectric’s 26-turbine wind project on Amherst Island has been dismissed.

Here is a brief statement from Wind Concerns Ontario:

Almost a year after the Ministry of the Environment and Climate Change approved the project planned by Windlectric/Algonquin Power on Amherst Island, the Environmental Review Tribunal has dismissed an appeal of the power project.

The appeal was based on the impact on the natural environment, heritage features, and human health.

While the Tribunal was complimentary in a number of areas on the evidence presented by the Appellant, the Association to Protect Amherst Island (APAI), it did not find that the evidence of harm put forward was irreversible or met the standard of the legislation. For the Blandings turtle, for example, the Tribunal allowed that turtles did inhabit the Island but that their habitat would not be affected by the power project, and that the number fatalities likely would not result in irreversible harm to the species.

APAI has said it will meet this weekend and discuss next steps; the community has already considered for a Judicial Review of the power project approval.

For more information please go to the APAI website

In its decision the Tribunal notes the deficiencies in the mapping of wetlands and other water features by the Approval Holder.  The Tribunal concludes that: “Without additional evidence about every access road, the proximity to water features such as wetlands, and the potential for periodic flooding or temporary presence of water, the Tribunal is unable to make specific findings about the potential level of Blanding turtle activity at every access road.”

This is further evidence if any is needed that Renewable Energy Approvals are not based on a full technical review or on scientific methods as much as they are based on suppositions about harm, or more to the point, the lack thereof.  In this case an Approval was issued by the Ministry of the Environment and Climate Change even when it was known that information on wetlands and on Blanding’s turtle activity was incomplete and that turtle surveys were done incorrectly.  The assumption behind the Windlectric Approval is that even if surveys are flawed and some wetlands are missed this is not a cause for concern.

We have seen the same thing with the Approval of the White Pines wind project.  After the conclusion of the ERT hearing an email was discovered where Kathleen Pitt, a Species at Risk Biologist for the Ministry of Natural Resources, is telling WPD that the Ministry is “still unsure of the impact turbines have on Whip-poor-will.”   Ms. Pitt chose to withhold this information from the Environmental Review Tribunal at the White Pines appeal where she had been called to testify and did so again later when she testified at Amherst Island.

In the face of such glaring information gaps and without proper technical studies, APPEC board members condemn the Ministry of the Environment and Climate Change for approving a wind project on Amherst Island.

Regards,
Paula Peel
Secretary, APPEC

Posted in Uncategorized

Riverwalk – Sunday, September 4, 2016

Riverwalk_Sept04_2016I hope your summer is going well.   If you are a beach person, then this summer has been great.   If you are a gardener, then this summer may not be so good.

There is another RiverWalk fundraiser planned for Sunday September 4, 2016. If you missed the last two, or would like to walk the river again, then please get your tickets soon as the last Riverwalks were sold out early.

Tickets are free, but reserving the tickets are through Eventbrite – www.riverwalk.eventbrite.ca .   As before this fundraiser is in support of Saving the South Shore and we are counting on your donations.  Our lawyer Eric Gillespie has been hard at work getting all the paper work together for the mitigation hearing with wpd and of course this costs money.  Eric has been successful in winning the Ostrander ERT and we are hoping for a successful outcome in the White Pines ERT.

For more information, please enlarge the poster here, or go to the eventbrite website here.

As you can see we have quite a few sponsors.  If you have a business, or cannot make the Riverwalk, but wish to be a sponsor then get in touch with Borys Holowacz at b.holowacz@sympatico.ca

See you at RiverWalk.

Johanna McCarthy
Fundraising Chair

Posted in Events, Uncategorized

Environmental Review Tribunal exercises discretionary remedial power in Ostrander wind farm case

OslerOf interest to many people within Prince Edward County is the recent Ostrander Point wind project case Remedy Hearing decision. Osler Hoskin & Harcourt LLP is a legal firm that has followed this ERT Appeal throughout the course of the appeal and has provided articles on the decisions made by the Ostrander Point Wind Project Environmental Review Tribunal, the Ontario Division Court and the Ontario Court of Appeal.

They have provided a crisp summary of the Remedy Hearing decisions with background information and came to some conclusions. By going to the enclosed link, APPEC members might find it very helpful in reviewing a summary of the decision with some of their conclusions:

In its June 6, 2016 decision, the Environmental Review Tribunal (Tribunal) revoked the Renewable Energy Approval (REA) that had been granted to Ostrander Point GP Inc. (Ostrander) to develop a nine turbine wind farm. This decision is relevant for stakeholders in Ontario’s renewable energy industry because it is the first case to provide insight into how the Tribunal will exercise its discretionary remedial powers where a REA is found to meet the “harm test” in section 145.2.1(2)(b) of the Environmental Protection Act (EPA).   Click here to read the full article.

Additionally, here are some related articles Osler has published on the Ostrander Point and the White Pines wind projects.

Related Canada articles

  1. Ostrander Point wind project returns to the Environmental Review Tribunal
  2. Ostrander Point wind project gets green light from Ontario Divisional Court
  3. Ontario Court of Appeal decides Ostrander wind farm project and sends dispute back to the ERT
  4. Environmental Review Tribunal rejects first renewable energy approval
  5. ERT Allows Another Appeal of a Wind Farm Approval

 

Posted in Ostrander ERT, Uncategorized

DID YOU VOTE “No” ON JULY 14, 2012?

If you did please consider giving to the South Shore Appeal Fund

Vote NOFour years ago this July, over 540 residents of South Marysburgh came out to vote at Milford Town Hall in a referendum arranged by The South Marysburgh Mirror. The referendum was restricted to residents and property owners of South Marysburgh, with proof of eligibility required. Voting was in person or by proxy.

Residents voted on a straightforward question: “Do you want industrial wind turbines installed in South Marysburgh like the ones proposed by wpd Canada and Gilead Power for their projects near Milford and on the south shore?”

The results were decisive with 90.2% of residents saying “NO”. The vote may have done nothing to stop the wind developers but the message from South Marysburgh residents was loud and clear: “No to turbines on the County’s south shore”.

The Alliance to Protect Prince Edward County (APPEC) is working hard to ensure that this historic referendum comes to a successful end. Our efforts are focused on taking legal action against wpd’s 27- turbine wind project through the Environmental Review Tribunal. These efforts are costly but effective: without them this project would be up and running by now, or close to it, and the County’s south shore would just be another notch under the provincial government’s belt.

To mark the occasion of the South Marysburgh referendum we are asking all residents who voted NO in 2012 to make a special donation of $100 or more to the South Shore Appeal Fund on or before July 14, 2016. All funds raised will be used to help pay for the upcoming ERT “remedy hearing” in July, where wpd will propose further mitigations for the Little Brown Bat and for Blanding’s turtles.

If you were one of the 540 residents who voted NO in 2012 please consider marking this occasion with a donation. Donations can be made by cheque or by PayPal on our website. Please write cheques to the South Shore Appeal Fund and mail to APPEC, P. O. Box 173, Milford, ON K0K 2P0. Please write “July 14, 2012” on the back of your cheque so we will know what your donation is specifically for. If donating by PayPal be sure to include a note with the date “July 14, 2012” or send a short message to contactus@appec.ca to let us know what your donation is for.

Donations for this special fundraising initiative will be kept separate and the total amount of donations raised will be announced in the August issue of The South Marysburgh Mirror.

The 2012 referendum was the first time citizens of this province who stood to be most impacted by industrial wind development were given an opportunity to decide for themselves, a right that was stripped from them in 2009 with the passing of the Green Energy Act. The results sent a strong message to wind developers, to County Council and to the provincial government. Make your vote count again by donating to the South Shore Appeal Fund.

Regards,
Janna McCarthy
APPEC Fundraising Director

Posted in Uncategorized

VICTORY FOR OSTRANDER POINT

VictoryBy now many of you will have heard about the ERT finding in favour of the Prince Edward County Field Naturalists (PECFN). In a written decision issued on June 6 the Environmental Review Tribunal (ERT) revoked the Renewable Energy Approval issued to Gilead Power for its Ostrander Point wind project. The ERT concluded that a wind project at Ostrander Point will cause irreversible harm to the local population of Blanding’s turtles and will lead to the eventual loss of the population.

This day has been a long time coming. A successful appeal by PECFN to the ERT in 2013 was followed by two provincial court appeals and another long remedy hearing before the ERT in 2015. The appeal has now come full circle with the Tribunal once again finding that the only appropriate remedy under s.145.2.1(4) of the Environmental Protection Act is to revoke the Director’s decision to issue a Renewable Energy Approval to Gilead Power:

In this remedy hearing under s.145.2.1(4), the Tribunal has found that Ostrander and the Director have not proven, on a balance of probabilities, that the remedy they propose, consisting of mitigation measures. . .will protect Blanding’s turtle from serious and irreversible harm that would be caused by the Project due to road mortalities, predation and poaching.

The decision is not only a win for Blanding’s turtles but for all the wildlife on the County’s south shore. As noted by PECFN: “This decision not only protects the Blanding’s turtle but also the staging area for millions of migrating birds and bats and the Monarch butterflies.”
Our hearty congratulations to PECFN’s legal counsel Eric Gillespie and his associates Priya Vital and Graham Andrews on this decisive victory. The win was hard-fought and is well-deserved.

Posted in Ostrander ERT, Uncategorized

Yard Sale – FUNDRAISER FOR South Shore Appeal Fund

Save the South Shore Yard Sale

Save the South Shore Yard Sale

When: MAY 28 (rain date May 29) – 8 am to 2 pm
Where: 14011 Highway #33, near corner of County Rd 32

This is a reminder that the Yard Sale is Saturday May 28 from 8 am to 2 pm (rain date May 29). The Yard Sale will be at its usual location at the big barn on 14011 Highway #33 (Loyalist Parkway near corner of County Road #32).

Come out on Saturday to browse!  There will be lots of interesting items at reasonable prices and who knows, you might just find a treasure or two. All funds from sales of items go to the South Shore Appeal Fund, to help pay off APPEC’s and PECFN’s legal bill for the ERTs.

Donations of items are accepted with appreciation. Large and small items can be dropped off at the site of the Yard Sale anytime after 6:30 am on the day of the sale.  Small items may be dropped off at Royal LePage, 104 Main Street Picton, on Friday May 27 between 10 am and 7 pm.  It would be most helpful if you could price items beforehand.  If these dates and times do not work for you please send an email to contactus@appec.ca and another arrangement can be made for dropping off your items.

Unfortunately we cannot accept: bedding, large appliances, baby equipment (toys are okay), safety helmets, or clothing. All other donations are appreciated. 

A big thanks to all the volunteers from APPEC, CCSAGE and PECFN who are donating their time on Saturday. We are looking forward to another successful Yard Sale and hope to see you there!

Posted in Uncategorized