SSC drops bombshell on MNR re Ostrander Point [replaced]
[This post has been replaced by another having the same title but dated September 15, 2011]
Prince Edward County’s South Shore Conservancy (SSC), a member group in CCSAGE, held a press conference on September 14, 2011 at the Milford Town Hall to present a legal opinion regarding recent work done by Defence Construction Canada (DCC) at Ostrander Point, the proposed site of a wind energy project by Gilead Power Corporation. Note: DCC is a federal Crown Corproation whose sole client is the Department of National Defence.
Legal counsel’s opinion reads in part: “We have reviewed this matter in detail and concluded that there is no legal basis for the Province’s refusal to apply provincial environmental laws. Further, we have concluded that any destruction of endangered or threatened species habitat at Ostrander point without a permit is illegal under the provincial Endangered Species Act (“ESA”). Due to the Province’s failure to apply its own laws, it has a clear obligation to the public to use all legal tools at its disposal to ensure that any habitat destruction caused by the DCC contractor to Ostrander Point is remedied.”
The legal opinion states that that the Ministry of Natural Resources (MNR) has violated Ontario’s Endangered Species Act (ESA) by allowing DCC to do assessment work of possible unexploded ordnance at Ostrander Point, which work caused significant environmental damage to the site. (See photos elsewhere on this website.)
County resident Garth Manning, QC outlined evidence contained in a DND report prepared in advance of the work, which suggests that the DND project was planned to accommodate a change in land use to that of a wind turbine project proposed by Gilead. He also documented the failure of MNR to refuse permission to DND to do the work.
He went on to present a legal opinion prepared by environmental lawyer Charles Birchall of Fogler, Rubinoff LLC that MNR had an obligation to comply with its own law — the ESA — and refuse permission to DND to do the work because of environmental damage that it would inflict on the site. His opinion contradicts an earlier claim by MPP Leona Dombrowsky that the province had no control over the actions of DND because of an “intergovernmental immunity doctrine”.
Garth outlined obligations of the province in light of their violation of the provisions of the ESA and the environmental damage done by DND:
- Remediation of the site;
- Establishment of an indepedent task force to oversee the remediation;
- Imposition of a moratorium on any change in land use pending completion of remediation.
Representatives of the four major parties (three candidates and one riding executive) were in attendance and were invited to respond. Leona did not address the question of the province’s obligation to enforce the ESA; rather, she suggested that it was/is necessary to find a balance between environmental protection and public safety. However, she indicated that she would support an independent task force to review the situation. The other three representatives took the opportunity to criticize the Liberal Party and to express their opposition to wind turbines at Ostrander Point.
SSC intends to provide its legal opinion and supporting documentation to the province for its response. If such is not forthcoming or is not deemed satisfactory, SSC will consider taking legal action against the province.
Based on what was presented today at the press conference, it appears that SSC has made a strong case that the province has failed to meet its obligations under the ESA. If the provinces agrees to provide remediation or, alternatively, if SSC commences legal action, it is expected that Gilead will be subjected a delay of several months in its timetable for the project.