Ostrander Point ERT appeal – where we are — analysis by Myrna Wood

February 8, 2016 Borys Holowacz Latest Posts

Ameliasburg Day 1 Caspar

Some people are wondering exactly what issues will the Tribunal be considering now at the end of the long, long trail of the Ostrander Point Appeal. And when can we expect their ruling?  The easiest question to answer is no one knows when to expect a ruling.  The Tribunal panel does not have to meet a deadline.  They revoked the RE Approval July 2013 well within the statutory appeal period of 6 months.

1. The Tribunal judges will need to answer Gilead Power’s demand that they recuse themselves on the grounds of a perceived bias. Gilead’s reasons are that:

  • Judge Wright quoted from the Ostrander ruling in another appeal;
  • the Panel did not recognize the MNRF witness Karen Bellamy as an expert; and
  • they allowed the remedy appeal to be lengthened for disclosure of documents.
2. Gilead’s case remains the same as at the beginning – the only harm to the Blanding’s turtle that the Tribunal has jurisdiction to review is vehicle mortality on the access roads which will be mitigated by closing the roads to public traffic and implementation of the Endangered Species Permit and Impact Monitoring Plan, including the compensation property.
  • These overall benefit actions will fully compensate for any road mortality to Blanding’s turtles due to use of the Project access roads. The Tribunal and Appeal Court concerns about the destruction of the entire habitat is supposedly out-of-bounds.

3. In its final submissions, the MOECC’s legal team created a couple of new assertions.

  • Firstly, if a remedy reduces the harm to less than serious and irreversible, the remedy should be implemented and the project should be allowed to proceed. In other words, the Tribunal panel should be able to determine what is 50% of serious and irreversible harm!
  • Secondly, “…if the Tribunal is not satisfied that the remedial measures proposed by the Director or a project proponent reduce a harm found by the Tribunal to a level that is below the threshold of “serious and irreversible”, the Tribunal should consider the importance of renewable energy and add to the remedial measures rather than stop a renewable energy project altogether.” So, it is up to the Tribunal to find remedial measures satisfactory to itself that neither the Company or the MOE or the expert evidence has been able to provide.

4. The Director is now asserting that it was acting in the ‘public interest’ by issuing the approval for Gilead’s industrial development on the Crown Land at Ostrander Point. It is not referring to the MOE’s responsibility for the public interest in conserving Crown lands of wildlife habitat.  Instead, the Director says:

  • “…if a remedy can rectify that harm such that there will no longer be serious and irreversible harm as a result of the project, the project should be allowed to proceed, even if there may still be some residual potential for harm. Such an approach strikes the appropriate balance between the dual purposes of promoting renewable energy and protecting the public and the environment, and is consistent with the broader legislative scheme for REA appeals.
Nowhere is the public interest in protecting and conserving Ontario’s critical and declining wildlife habitat mentioned, even though it is, and should be, the foremost mission of the Ministry of the Environment.
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We await the Tribunal’s ruling with confidence in its recognition of the serious and irreversible harm that the industrial destruction of this wildlife habitat would cause.

 

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