SSC drops bombshell on MNR re Ostrander Point [updated]
The South Shore Conservancy alleges that the provincial government failed to uphold the Endangered Species Act in allowing a federal Crown corporation to damage habitat of endangered or threatened species at Ostrander Point.
[This post replaces one having the same title and dated September 14, 2011.]
Prince Edward County’s South Shore Conservancy (SSC), a member group of CCSAGE, held a press conference at the Milford Town Hall on September 14, 2011 to present a legal opinion regarding recent EO (Explosive Ordnance) assessment work done by Defence Construction Canada (DCC) at Ostrander Point, the proposed site of a wind energy project by Gilead Power Corporation.
DCC is a federal Crown Corporation having as its sole client the Department of National Defence (DND). The assessment work required pre-clearance of vegetation down to 10 cm in height over a wide area, which has allegedly damaged and destroyed habitat of endangered species.
At the press conference, County resident Garth Manning, QC outlined evidence contained in a 40-page report by DCC for DND dated March, 2011 and titled Due Diligence Environmental Assessment Screening Report for the Proposed EO [Explosive Ordnance] Assessment and Clearance in Ostrander Point. He went on to present the legal opinion from noted enviromental lawyer Charles J. Birchall of Fogler, Runbinoff LLC, who has been retained by SSC.
Following is a summary of the circumstances surrounding this situation, believed to be consistent with the views of SSC and its advisors.
Why was this assessment work done? The answer is contained in the DCC report referenced above. It states: “.. recent changes to the intended land use have prompted the need for further investigation and EO risk assessment of the area prior to undertaking any subsurface excavations”. What excavations? “The foundations supporting the wind turbines require excavation and depths of up to 2 meters.” By whom? “The wind development proponent, Gillead [sic] was consulted..”
What action did MNR take regarding the proposed project? DCC enquired as to whether provincial approval was required. MNR informed DCC that no provincial permits were necessary for the work proposed. There was no mention of any need for a permit to “damage and destroy habitat” under the ESA. There was no reference to the fact that Gilead had not received any approvals to proceed with the project and no suggestion that DCC defer its work pending provincial decisions on the project.
Did the work damage and destroy wildlife habitats? SCC has obtained opinions by two enviromental experts that the clearing work has had adverse effects on wildlife habitats at Ostrander Point:
- Frederick Beaudry, Ph.D, Assistant Professor of Environmental Science, Alfred University: “These activities are of serious concern for the viability and persistence of the local population of Blanding’s turtles.”
- Charles R. Smith, Ph.D, Senior Research Associate, Cornell University said in part: “Clearing the areas within the circles outlined in red on the map you provided will adversely affect a significant percentage of the habitats at the Ostrander Point wind turbine site.”
Did MNR meet its obligations under the ESA? Charles Birchall’s legal 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”).” In particular, he stated that the doctrine of jurisdictional immunity, advanced earlier by MPP Leona Dombrowsky in an email to the many people who complained about DCC work, does not apply in the case of provincial environmental laws.
What should be done? In his legal opinion, Charles Birchall suggested the following remedy, with which SSC concurs: “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. As it is too late to stop any damage that has occurred at Ostrander Point, one way to address the situation is for the Province to assemble an independent multi-disciplinary task force to conduct a scientific assessment of the extent of the damage done to Ostrander Point and the steps necessary to remedy the damage. The task force should also undertake an assessment of how to ensure the ecological diversity and vitality of Ostrander Point can best be preserved for future generations. A moratorium on any new land uses, site alteration or other activities at Ostrander Point should be declared until such time as the findings of the task force are released and implemented.”
What did the politicians say? Representatives of the four major political parties (three candidates and one riding executive) attended the press conference and were invited to respond. Current Liberal MPP Leona Dombrowsky 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 establishment of an independent task force to review the situation. The other three representatives took the opportunity to criticize the Liberal Party for its handling of the energy file and to express their opposition to wind turbines at Ostrander Point.
Next steps. SSC will provide its legal opinion and supporting documentation to the province for its response. If such is not forthcoming or is deemed unsatisfactory, SSC will consider taking legal action against the province.
Implications for Gilead. Based on what was presented at the press conference, together with the supporting documents, it appears that SSC has made a strong case that the province has failed to meet its obligations under the ESA. If the province agrees to remediation or, alternatively, if SSC commences legal action against the province, it is expected that Gilead’s wind project will be delayed by several months.