Legal – Jan 21, 2014 – Report on Jan. 21, 2014 Ostrander Point ERT Appeal Hearing

The following is an APPEC report for the first day of the Ostrander Point ERT Appeal hearing. Paula Peel of the APPEC Board will be reporting on the proceedings trough the week.   

Report on Jan 21, 2014 Ostrander Point ERT Appeal Hearing

by Paula Peel, APPEC board  

It was hard to find an empty seat on this first day of the hearing.  County residents and supporters of the Prince Edward County Field Naturalists (PECFN) once again showed their resolve to protect Ostrander Point from wind turbine development.  And once again they face stiff opposition.  At least 8 lawyers from Gilead Power, the Ministry of the Environment and CanWEA are representing Gilead ’s interests.

The hearing began with Gilead introducing its game-changing motion to bring in new evidence.   According to Gilead lawyer Doug Hamilton, the facts have changed since July 4, 2013 when the Environmental Review Tribunal revoked Gilead ’s REA approval.     Gilead is now in possession of a revised permit from the Ministry of Natural Resources (MNR) that requires that the access roads be closed to the public and the installation of gates.  As reasoned by Gilead these mitigations address the Tribunals’ concerns that the wind power project will cause serious and irreversible harm to Blanding’s Turtles.  

PECFN lawyer Eric Gillespie noted that Gilead and the MNR were having discussions about fencing and the leasing of crown land for the access roads back in 2010.   If these issues were so important why was not one word said about any of this at the ERT hearing?   As noted by Mr. Gillespie, there are also disclosure requirements: Gilead had every opportunity to bring these issues up at the ERT hearing and chose to withhold it.  Mr. Gillespie argued that Gilead should not be rewarded by the Court at this time with an opportunity to bring “new” information forward.   

The attempt by Gilead’s lawyers to enter this new evidence fell flat with the Court dismissing the motion.  The Court noted that reasons for the dismissal will be given at the same time reasons are given for the main appeal.

Gilead lawyers will now attempt to argue three issues:  (1) that the Tribunal  misunderstood the terms and provisions of the Overall Benefit Permit (2) that the Tribunal committed palpable and overriding errors in coming to a conclusion not supported by evidence, for example in drawing conclusions about turtle mortality without any evidence of number of turtles on site and (3) that the Tribunal failed to exercise its jurisdiction in rescinding REA approval and failed to provide natural justice and fairness.

The hearing resumes on Wednesday and is set to conclude on Thursday.

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