Day 11 of Ostrander Point — Ted Cheskey on IBAs, bird migration, breeding birds
Report on April 4th ERT Hearing
by Henri Garand, Chair, APPEC
The April 4th hearing of the Environmental Review Tribunal was scheduled to deal with the testimony of Edward (Ted) Cheskey, Nature Canada’s manger of bird conservation programs. Mr. Cheskey is a licensed master bird bander, a former outdoor educator, and the Ontario coordinator of Birdlife International’s Important Bird Area (IBA) program. His publications include his master’s thesis on ecological planning for forest birds, species reports in the Breeding Bird Atlas of Ontario (2007), and contributions to The State of Canada’s Birds (2012).
Qualifying of Ted Cheskey
The entire morning was devoted to qualifying Mr. Cheskey as an expert witness. Sylvia Davis, lawyer for the Ministry of Environment, wanted Mr. Cheskey’s expertise on bird natural history restricted to Ontario birds.
Douglas Hamilton, lawyer for Gilead Power, questioned Mr. Cheskey’s status as an independent expert witness. He claimed Mr. Cheskey’s position was much the same as Nature Canada’s and Cheskey had acted as an “advocate” by opposing the Ostrander Point wind project on Nature Canada blog postings which referred readers to PECFN’s website for donations to its legal fund. Hamilton filed a binder of case law in support of his objection to qualifying the witness.
PECFN’s lawyer, Eric Gillespie, submitted that Mr. Cheskey had clearly stated his independence from Nature Canada and was fully qualified as a technical expert. Moreover, Cheskey, like any other expert, was expressing his opinion and had no personal interest in Ostrander Point. Gillespie cited a Superior Court case in which two appellants, who did have a personal financial interest, were still permitted to testify as expert witnesses. He argued that the appropriate tests, as set out in a case cited by Hamilton, are “relevance, necessity and proper qualifications,” and that decisions reflect “the path of least resistance, efficiency and common sense.” If advocacy was an issue, it could figure in the ERT panel’s weighing of the evidence.
All these arguments had taken nearly till noon. Co-chair Wright adjourned the hearing for lunch and reflection. When the hearing resumed Mr. Wright qualified Cheskey as an expert on “bird natural history and conservation programs in Ontario and on the Important Bird Area program.”
Ted Cheskey’s Presentation
Mr. Cheskey’s evidence consisted of three parts: background on IBAs, bird migration, and breeding birds.
Important Bird Areas
BirdLife International, a non-government organization based in the United Kingdom, developed the IBA program to encourage worldwide conservation of birds. Sites must meet specific criteria for inclusion. There are currently 12,000 IBAs in 123 countries; Canada has 600 IBAs, with 100 classified as “globally significant,” indicating they are vital to one percent or more of the population of at least one bird species. The South Shore IBA, extending from South Bay to Soup Harbour, is globally significant, for example, for the Long-tailed Duck.
Wind energy projects within IBAs are at odds with BirdLife International’s objectives to “conserve, manage, and enhance” both public and private areas for birds. Wind projects would open the door for other industrialization.
Ontario’s Environmental Commissioner has stated that wind energy projects should give IBAs a wide berth because of potential cumulative effects.
The South Shore IBA contains the largest natural coastline on Lake Ontario. It is essential to bird migration as a peninsula (which provides staging and landing areas) and for wetlands (which provide abundant insect food). Declining species like Tree swallows and Purple Martins would be put at special risk, as high mortality rates at Wolfe Island have already shown.
In the fall the density of migrating raptors is the fourth highest of 509 North American sites. The Ministry of Natural Resources (MNR) has designated it a priority area for restoring Bald Eagles. Raptor populations are especially vulnerable to wind turbines because of the birds’ soaring habits and low reproductive rates.
The breeding birds at risk are principally grassland species such as Eastern Meadowlark, Eastern Kingbird, and Field Sparrow, all with declining populations. American Woodcock and Common Snipe are also vulnerable because of their aerial courtship displays at turbine blade level. The MNR permit to “kill, harm and harass” the Whip-poor-will was issued on the basis of an overall benefit to the species; however, since the Whip-poor-will’s population decline is not related to habitat loss, it’s hard to understand the benefit of removing birds from occupied habitat.
Ministry of Environment Cross-examination
Sylvia Davis, lawyer for the Ministry of Environment, questioned Cheskey on his endangered species list (Henslow’s Sparrow, King Rail, Black Tern, etc.) because Stantec had found none of the birds at Ostrander Point. Mr. Cheskey explained that the sightings were historical, but the habitat either still existed or could be restored to support such birds breeding. As for migratory birds, he agreed that the value of Ostrander Point as a stopover site depends on the season, weather, and habitat modifications.