Dramatic developments at the Ostrander Point ERT hearing
At the direction of the Appeal Court of Ontario, the Ostrander Point ERT sat again on September 2, 3 and 4, 2015 to consider the Gilead’s mitigation plan to reduce harms to Blanding’s turtle resulting from the construction and use of access roads. About 120 County residents attended on the first morning to show their support for the PECFN appeal. There were few, if any, residents supporting the other side.
The plan relies heavily on the use of gates on access roads to reduce public vehicular traffic. PECFN called two witnesses, both of whom testified during the earlier phase of the ERT — Dr. Fred Beaudry, an expert in Blanding’s turtle and Kari Gunson, an expert in road ecology. Both demonstrated strong and relevant knowledge and gave compelling evidence, supported by scientific papers and personal experience as to why the access roads would be problematic even with gates. While both agreed that gates would reduce public access to a considerable extent, they also stated that there is little or no scientific evidence that other proposed mitigation measures will be successful.
Concerns about the impact of access roads include: heavy equipment movements during construction, fragmentation of habitat, barriers to movement of more timid turtles, changes to water flow and pooling, encouragement of invasive plant species, provision of appealing but easily seen nesting sites on the shoulders, and improved access within the site for poachers, predators (foxes, raccoons, skunks) and the public (some will intentionally kill turtles). PECFN’s witnesses expressed particular concern about adult mortality, because Blanding’s turtles don’t mate until at least age 20 and have a low reproductive rate. Dr. Beaudry emphasized that the cumulative effects of the many factors relating to roads would result in inadequate mitigation of harms.
Both witnesses were cross-examined in detail by the lawyers for MOECC and the developer, and both held up well. To observers supporting PECFN, it was difficult to understand how the developer’s mitigation plan could justify proceeding with the project.
The third day of the hearing produced an unexpected development. We’ll let Myrna Wood, President of PECFN, describe it:
From the beginning several years ago, we were astounded that the Ministry of Natural Resources would issue a permit that allowed development of a site as important to species at risk as Ostrander Point. Over the years we continually have reminded the Ministry of Environment and the Ministry of Natural Resources that their responsibility to protect species at risk was being ignored by allowing development at Ostrander Point.
What began as a usual day in the extended Environmental Review Tribunal appeal of the Ministry of the Environment and Climate Change plan to allow development at Ostrander Point in the PEC South Shore Important Bird Area finished with an unexpected ruling.
The witness was Joe Crowley from the Ministry of Natural Resources and Forestry, who was qualified as a species at risk herpetologist with expertise in Blanding’s Turtles. Mr. Crowley has a long history of interest in and working in the field of herpetology in Ontario and helped to develop the Ontario Herpetology Atlas, a citizen science project, while working with Ontario Nature before he started his tenure with MNRF. At MNRF his responsibilities included being the species at risk expert on herpetology, giving advice to staff and partners and conservation groups on the development of species at risk protection plans. He was instrumental in developing the provincial task team forestry policy regarding amphibians and reptiles. He is a member of the reptile and amphibian sub- committee of COSEWIC (Committee on the Status of Endangered Wildlife in Canada), reviewing reports for that committee of technical and scientific information which informs decisions regarding listing species at risk. He is the Vice President of the Canadian Herpetology Society responsible for web site development and communication.
Mr. Crowley’s witness statement was concerned with the attempts to mitigate harm to the indigenous turtle population at Ostrander Point through the installation of gates on the turbine access roads and a program of monitoring, signage and staff training. Mr. Crowley answered many questions about the effectiveness of the various mitigation measures proposed to protect the turtles. Gates are proposed on about 6 road intersections on the site including the intersection of Helmer Rd and Petticoat Point Lane. Mr. Crowley indicated that he felt that those gates would reduce the risk of turtle mortality to public vehicular traffic; however the presence of roads would increase the probability of turtles nesting in a place that would make them more vulnerable to predation and the
roads[gates] were unlikely to deter poachers.
The unexpected part of the day came when Mr. Crowley was asked about his role in the granting of the Endangered Species Act permit
grantedallowing the proponent to “kill, harm and harass” the Whip-poor-will and the Blanding’s Turtle at Ostrander point. Mr. Crowley stated that his advice at the time was not to allow the permit because the project roads would prove a risk to the site’s indigenous Blanding’s Turtles.
This new information caused an abrupt halt in the proceedings. The legal argument was made by PECFN counsel, Eric Gillespie that it appeared that a senior manager at MNRF had advised against approval of the Ostrander project at the very onset. Mr. Gillespie requested documentation of that advice. Mr. Crowley was unable to produce any documentation and asserted that the final decision on the project was not his.
Ultimately after much legal discussion the Tribunal issued a ruling: “That the Ministry of Natural Resources and Forestry witnesses produce forthwith all papers and electronic correspondence to date relating to roads and/or Blanding’s Turtle and this renewable energy approved project and site.”
The Tribunal resumes on September 23, 24 and 25.
The revelation by the MNRF official that he recommended against allowing the “kill, harm and harass” permit may be the turning point in this long and expensive fight by PECFN and its many County donors to protect wildlife at Ostrander Point. Stay tuned for further developments, and please make plans to attend the continuation of the hearing on September 23.