The Court of Appeal of Ontario is Blanding’s turtle’s new BFF
THE COURT OF APPEAL SPEAKS
APRIL 20th, 2015
Prince Edward County Field Naturalists’ (PECFN) appeal to the Court of Appeal relating to Gilead Power’s Ostrander Point proposed wind factory of 9 turbines was held over two days in mid-December, 2014. The Court’s 33 page decision was released today.
Most importantly, it “… restored the Environmental Tribunal’s conclusion that the project will cause serious and irreversible harm to the Blanding’s turtle”. When the ERT originally reached that conclusion it revoked the Renewable Energy Approval (REA) issued by the Director for the Ministry of the Environment. Thus with the Court of Appeal’s decision, Gilead Power has no REA.
However, the Court of Appeal also determined that certain evidence that Gilead Power might have given before the ERT on how it proposed to protect the Blanding’s turtles by excluding the public from the 5.4 kilometres of access roads to the turbines was not, and was not able, to be given. The Court ordered that this aspect only should be referred back to the ERT to hear such evidence (but no other). PECFN is confident that such evidence will conclusively show that Gilead Power’s proposal to erect gates will in no way change the continuing serious and irreversible harm to the turtles because of other major threats which were exhaustively canvassed before the original ERT.
Gilead Power cannot proceed with construction and many months will likely go by before an ERT hears the evidence in question and arrives at a decision on that point alone. Meanwhile, Gilead Power has no REA.
One might speculate on what might occur when the new ERT arrives at a decision on the one point it has been directed to consider. If, as seems likely, it will decide that no protection would be provided then the situation is clear-cut. But it would be somewhat murky, not to say novel, if it took the opposite view. Could the revoked REA be revived, or would Gilead Power have to start the process all over again?
Both Gilead Power and the Ministry of the Environment were parties before the Court of Appeal. Each of them has 60 days from today to decide whether to apply to the Supreme Court of Canada for leave (permission) to appeal the Court of Appeal’s decisions. PECFN would have the same period to decide whether to appeal the referral back to the ERT on the one point. The Supreme Court normally only hears appeals on matters of extreme public and/or constitutional importance and so far as Ontario is concerned gives leave in only about 3% of cases decided by the Court of Appeal. It is unlikely that PECFN would wish to do so, but Gilead Power retains one of Canada’s largest and more expensive law firms and Queen’s Park has never shown any reluctance to throw the public’s money away on disaster after disaster spawned by the Green Energy Act. So, we shall see.
Meanwhile, we in the County whose Council has made it clear that we are not willing hosts to wind factories, congratulate PECFN and its counsel, Eric Gillespie, for their success, which is unique in the history of the Green Energy Act, and applaud their courage, professionalism and persistence.
CCSAGE NATURALLY GREEN
April 20th, 2015.