OPAF update on the July 14 ERT pre-hearing in Toronto

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The purpose of the hearing was to determine what evidence will be heard at the ERT hearing on September 2-3. We think this hearing will be in PEC, but no definite information is available on the location yet.

The new ERT hearing is as a result of the Appeal Court ruling which said that the Court “would allow the appeal on the merits and restore the Tribunal’s conclusion that the project would cause serious and irreversible harm to the Blanding’s Turtle…. allow the cross appeal and the fresh evidence application [that was denied by the Divisional Court]..dismiss the appeal from the Divisional Court’s finding that the Tribunal erred in dealing with remedy …remit the matter back to the Tribunal to address remedy after giving the parties opportunity to be heard”

The parties gathered in the ERT chambers in Toronto. Myrna Wood and Cheryl Anderson attended. Representing PECFN was Graham Andrews from Eric Gillespie’s office. Chris Paliare was a participant representing South Shore Conservancy.

There was a phalanx of lawyers representing Gilead, Ministry of the Environment and Climate Change (MOECC) and participant Canadian Wind Energy Association (CanWEA).

The Tribunal members were Mr. Wright and Ms. Gibbs who conducted the original 40 day Tribunal hearing.

Both PECFN witnesses, Dr. Fred Beaudry and Kari Gunson, visited the county in June and spent a day at Ostrander Point. They submitted comprehensive witness statements reiterating the importance of the habitat at Ostrander Point to the continued health of the Turtle population. It is the conclusion of both reports that the construction, the turbine pads and access roads will cause serious and irreversible harm to the habitat of the Blanding’s Turtle population at the site and no remedial road ecology changes would effectively mitigate that harm.

Gilead’s lawyers (Hamilton and Rogers) attempted to object to PECFN’s witness statements on the grounds that we are trying to submit new evidence on issues already dealt with, and going beyond the Appeal Court’s referral of the question of remedies.

Gilead attempted to “split the case”, maintaining that the physical existence of the access road and turbine project is irrelevant to the Sept 2-4 hearing.  The only issue before the Tribunal should be road mortality, from public vehicles and poaching and predation on the roads.

They quote the Tribunal Decision [360]: that the mitigation measures “during the construction phase (seasonal stoppage May to Oct; education of employees; biologist searching for turtles) will be effective” – to mean that the issue of destruction of habitat through construction of the access roads is already decided and cannot be discussed.  Further, they selectively quote the Decision’s conclusion [630]: “that mortality due to roads, brought by increased vehicle traffic, poachers and predators,…” is the issue that the Appeal Court has referred back to the Tribunal and therefore is the only issue that can be discussed.  Actually, that sentence continued to say ”…directly in the habitat of Blanding’s turtle, a species that is globally endangered and threatened in Ontario, is serious and irreversible harm to Blanding’s turtle at Ostrander Point Crown Land Block that will not be effectively mitigated by the conditions in the REA.”

PECFN’s lawyer Eric Gillespie submitted a reply that “the fact that all of these impacts are occurring ”directly in the habitat of Blanding’s turtle”, all of which the Tribunal expressly found to be “critical” habitat ( Tribunal decision [313]) further illustrates that any decision regarding remedy cannot be limited solely to considering the access roads.  The entire site was, and remains, highly relevant to any decision the Tribunal makes.”   At the oral hearing, Graham Andrews (PECFN) and Chris Paliare (SSC) used these facts to argue that Gilead’s attempt to isolate our witnesses’ evidence and remove it from the context of the Tribunal’s Decision is unacceptable and is not what the Appeal Court decided.   After all, the Appeal Court decision said it “would restore Tribunal’s conclusion that the project will cause serious and irreversible harm to the Blanding’s turtle.” [7] Further, it noted that “the Tribunal had evidence of how the proposed access roads would cause harm to the turtle’s habitat quite apart from collisions with motor vehicles.” [100]

Gilead said PECFN and its witnesses want to reopen the whole Tribunal appeal case by discussing the several factors of the turtles’ habitat to be effected by the project.  He referred to Eric’s Reply, paragraph 10: “It would not be possible for the Tribunal to (a) fulfill the direction of the Court of Appeal, or (b) fulfill its own mandate, without considering the issue of remedy in the context of all the impacts the evidence (past and present) demonstrates will adversely affect Blanding’s turtles across the site if the Project is permitted to proceed as now approved.”

Gilead then threatened to extend the Sept hearing from 3 days to one of weeks by recalling all their experts on turtles, alvar, and hydrology.

We found the judges questions to be very relevant. For instance, Judge Gibbs asked Gilead’s lawyer was he was saying that the Tribunal’s jurisdiction has been circumscribed by the Appeal Court? If so, what about its mandate under the Environmental Protection Act?

Both Ms Davis for MOECC and Mr. Terry for CANWEA supported the positions of Hamilton and Rogers. Their concern was about how long the hearing will go on.

Graham Rogers for PECFN was succinct in his comments. He said that the key to what the Court of Appeal has remitted back to the Tribunal is the context – applying the changes that have happened in the last year and a half. Gunson and Beaudry’s statements reflect the current conditions. The changes to the entire site are what the Tribunal should be focussing on, in addition to remedy. He mentioned specifically Gunson’s comment that there are permanent effects of construction, for example, ruts in the roads that must be taken into account. The evidence presented by both witnesses relates to the on-going nature of the Crown Land Block. PECFN did not need to bring a motion to file materials. PECFN’s documents respond to the Impact Monitoring Plan published in Nov 2013.   It is the nature of reply evidence that the appellant should be able to review new evidence as well as the old and comment on it. We disagree with the Approval holder’s suggestion that its evidence can be considered without an opportunity to respond. Based on the Court of Appeal decision in paragraph 100 (see below) it is inconceivable that PECFN would not be able to respond.

[100]” … that the Tribunal will allow the project to proceed upon the roads closure should not be regarded as a foregone conclusion. I note the Tribunal had evidence of how the proposed access roads would cause harm to the turtles’ habitat quite apart from collisions with motor vehicles. Finally, the Tribunal has yet to determine the scope of its remedial jurisdiction in the context of the case.”

Finally, after more discussion and attempts by Gilead to make their point, which amounted to the parsing of the meaning of the words in Paragraph 100, the hearing was adjourned. The Judges said they would rule on the motion in one week, if not before.

Cheryl Anderson





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