Day 19 of Ostrander Point — M. LaPlante (MNR) and A. Baxter (MNR)
Report on April 29th ERT Hearing
by Henri Garand, Chair, APPEC
Two Ministry of Natural Resources (MNR) employees, Melissa LaPlante and Andy Baxter, provided the bulk of testimony at the Environmental Review Tribunal on Monday.
Before Ms. LaPlante and Mr. Baxter testified, two County residents made presentations. Neither was qualified as an expert or technical witness. The Ministry of Environment’s (MOE) lawyer and Gilead Power’s lawyer asked no questions.
PECFN lawyer Eric Gillespie, in questioning, clarified that Ostrander Point, when used by the Canadian military, had never been bombed with any device except dummy or practice bombs, which emit smoke upon impact. He also established that a newspaper article written by one presenter referring to “delusion thinking and irrational hatred of windmills” was considered “tongue in cheek”.
Qualifying of LaPlante and Baxter
Melissa LaPlante, Protected Areas Species-at-Risk Biologist, has worked for MNR since 2003 after graduating with a Guelph University B.Sc. in Zoology. Currently, her position entails providing guidance on protection and recovery of species at risk. Since she is not a species specialist, she said she consults with MNR colleagues and other species experts as well as relying on a database, books and journal articles. She has advised proponents on “hundreds” of projects, 14 of which involved renewable energy.
The ERT panel qualified Ms. LaPlante as an “expert in reviewing proposed projects on species at risk.”
Andy Baxter, MNR Coordinator, Permits & Agreements Program, has worked chiefly in an IT capacity since 1989. In his current position he “supports MNR district offices in clarifying policies, process, and points of consideration for the Endangered Species Act” by “providing technical and scientific information.”
MOE lawyer Sarah Kronkamp sought to qualify Mr. Baxter as a “technical witness.” PECFN lawyer Natalie Smith objected to opinions and hearsay contained in the witness statements because technical witnesses can report only facts and sensory perceptions; they cannot offer expert opinion. Ms. Kronkamp agreed to remove the non-factual content.
The ERT panel qualified Mr. Baxter as a technical witness on MNR’s permitting program.
Examination of Baxter and LaPlante
Mr. Baxter and Ms. LaPlante testified as a panel to explain the MNR’s handling of projects affecting species at risk. The MNR’s assessment and process are separate from the MOE’s Renewable Energy Approval process.
Ms. LaPlante outlined the categories of species at risk: special concern, threatened, endangered, extirpated, and extinct. The Endangered Species Act does not protect the first category by requiring permits to “kill, harm, and harass” individuals or destroy their habitat. Permits apply only to threatened and endangered species. If projects have an adverse effect on protected species, developers must first try to avoid the effects and perhaps relocate the project. If these alternatives are not possible, then MNR recommends a permit that confers an “overall benefit to the species.”
Mr. Baxter added that the “overall benefit” meant “positive outcomes” for the species as a whole, whether regionally or provincially.
For Ostrander Point, Ms. LaPlante said, the records review identified 15 species for potential study. Following site surveys, MNR recommended permits for only the Blanding’s Turtle and the Eastern Whip-poor-will.
Mr. Gillespie objected that Ms. LaPlante had therefore relied on reports prepared by unqualified Stantec personnel. Mr. Andrew Taylor had conducted the majority of the field studies, and Mr. Taylor was not qualified as an expert by the ERT panel. Therefore, she had no valid basis for her opinions.
Gilead Power lawyer Doug Hamilton argued that the reports are observations and are in evidence.
Mr. Gillespie replied that if a non-expert failed to make observations, such as sightings of Henslow’s Sparrow, such reports were not evidence.
The ERT panel considered the question of admissibility versus weighting of the evidence, and they decided to allow the testimony and to defer a decision on its evidentiary weight. Mr. Gillespie was advised that he could return to the issue of admissibility in his final submission.
Resuming their testimony, Mr. Baxter and Ms. LaPlante listed some of the conditions on Gilead Power’s permit: construction work and maintenance outside the breeding season, signage and low speed limit on roads, habitat enhancement and acquisition, species monitoring, and scientific research on whip-poor-wills.
Cross-Examination of Baxter and LaPlante
Mr. Gillespie asked whether relocating the project away from Ostrander Point was ever considered. Ms. LaPlante answered “No.” He then asked whether alternative locations had been considered for the roads or specific turbines. Ms. LaPlante answered “No.” Finally, he asked whether the newly-acquired land, adjacent to the project site, had been considered for relocating turbines. Ms. LaPlante answered “No.”
Turning to the Stantec field studies, Mr. Gillespie inquired what information Ms. LaPlante had reviewed when deciding on the status of Henslow’s Sparrow. She said she used the Natural Heritage Assessment report which summarized field studies. Mr. Gillespie referred her to the appended field studies, indicating that they consisted of two visits—one lasting 55 minutes, the other 75—for the 324 ha project site. He asked whether these were sufficient to determine the presence of the sparrow. Ms. LaPlante said she was not a species expert but it would depend on the qualifications of the searcher. She was then asked whether she had reviewed Mr. Taylor’s background and qualifications. She answered “No.”
ERT Panel’s Questions
Co-chair Robert Wright asked whether habitat includes air space for migrating species at risk. Ms. LaPlante was not sure. Mr. Baxter said it was regarded as critical for some species, such as those with nearby roosts.