Wind Turbines vs. Turtles
Was the Environmental Review Tribunal’s decision to reject the nine-turbine Ostrander wind development project in eastern Ontario based on the evidence of harm to the threatened Blanding’s turtle reasonable?
This is a key issue that the Ontario Court of Appeal addressed in hearings on December 8 and 9 reviewing a Divisional Court decision that overturned the Tribunal’s decision. Nature Canada decided to intervene in this appeal because this project would be located in a key wetland complex along the shores of eastern Lake Ontario that is home to numerous species at risk, including the threatened Blanding’s Turtle. Ostrander Point is also part of a globally significant Important Bird Area and directly in one of the most important migratory routes for birds in North America (370 bird species!). Nature Canada also intervened because of the terrible (for nature) precedent that the lower court’s decision would set for species at risk across the country.
The Prince Edward County Field Naturalists (PECFN) have been waging this battle against the Ostrander Project for many years, and nature lovers packed the Toronto court room to hear the lawyers argue. I was one of those lawyers representing Nature Canada.
The Tribunal had decided that the Ostrander project will cause “serious and irreversible effects” on the Blanding’s Turtle, but not on birds. The Divisional Court held that the Tribunal had not explained how the evidence dealt with the key legal test of irreversibility, and thus that the Tribunal’s decision was not reasonable.
PECFN, which was the appellant before the Court of Appeal, argued that the Tribunal’s decision was reasonable and based on the evidence and that Divisional Court should have deferred to the Tribunal on its determinations of fact.
On behalf of Nature Canada, I argued that the Tribunal had based its decision as to the irreversibility of the effects on the Blanding’s Turtle on the alteration to its habitat caused by the 5.2 km network of roads to be built through the various wetlands used by the turtles. Once constructed, the roads would result in increased turtle mortality due to vehicle collisions, poaching and predation by racoons and skunks. Experts at the Tribunal hearings had testified that Blanding’s turtles range widely (up to 6 km) through these wetlands and nest on the gravel road sides, increasing their vulnerability to these road-related impacts. The Tribunal had determined that the existence of the road network “directly in the habitat” of the turtles created irreversible effects that could not be mitigated.
The Court of Appeal reserved its decision, which means a wait of several months at least before its decision and reasons are released. Several decisions are possible. Rejection of PECFN’s appeal would mean that the Ostrander project would go forward. Alternatively, the Court of Appeal could allow PECFN’s appeal and either deny the permit for the project, or send the matter back to the Environmental Review Tribunal for reconsideration.