By Henri Garand
The Environmental Review Tribunal hearing
on PECFN’s appeal continued Monday, March 18 from 9:30 a.m. until after 6:30 p.m. in Sophiasburgh town hall. The
long day consisted of a cross-examination of Dr. Paul Catling, presentations by Dr. A. Goddard-Hill and Parker Gallant, and
further procedural debate over witnesses, evidence, and scheduling.
Cross-Examination of Dr. Paul Catling
of Environment lawyer Sylvia Davis continued the cross-examination begun after Dr. Catling, a Research Scientist with Agriculture
and Agri-Food Canada, testified on March 6. Her questioning was meticulous to the point of tedium.
Time and again she referred Dr. Catling to the transcript of his testimony
and the scientific reports submitted in support. She implied that since Ostrander Point (OP) was already so greatly disturbed
by ATV and hunting use, wind turbine construction would not be harmful. She also tried to establish that since ecosystems
can regenerate after fires, the effects of turbine construction are not irreversible. Dr. Catling patiently explained
that plants have adapted to natural disturbances like fire and flood but are not adapted to human disturbances, such as road
construction that would elevate nutrient levels, spread contamination and invasive species, and alter drainage patterns.
Hence, negative effects extended well beyond the 5.2 hectares occupied by turbine bases and access roads; 50 hectares of Ostrander
Point would be irreversibly harmed.
Ms. Davis also tried to defend Gilead’s proposed Alvar Management
Plan. But Dr. Catling disputed that it was possible to restore OP “to pre-construction conditions” and transform
cultural meadow into alvar. “Self-sustaining alvar will not be created,” he said. He added that while
there was a science of restoration ecology, the alvar plan was a disservice in claiming more than could be achieved.
Following a series of questions on which plants were special, if not
unique, to alvars, Ms. Davis attempted to discredit Dr. Catling by pointing to discrepancies between his (incomplete) field
notes and his final report. Dr. Catling explained that his notes recorded interesting observations and therefore did
not include common plants such as the eastern red cedar visible out the town hall window.
The botanical education of Ms.
Davis took up three hours.
When Gilead’s lawyer announced that his own cross-examination would
take a further five hours, PECFN lawyer Eric Gillespie raised a procedural objection. He pointed out that Dr. Catling
had restricted his testimony to one hour, but cross-examinations were going to take ten times as long. This approach
was unfair to a witness and unreasonable for an ERT hearing in light of the six-month deadline. Chair Wright agreed
that the pace of the hearing would have to be addressed, but he made no ruling on the length of further cross-examinations.
Presentation of Dr. Alban Goddard-Hill
Goddard-Hill, a Belleville family physician and director of the Prince Edward Point Bird Observatory, sought to qualify as
an expert witness on the environment. But the ERT panel found insufficient his undergraduate studies in biology; membership
in the Kingston and Quinte Field Naturalists, and in the Eastern Lake Ontario Environmental Research Group; as well as a dozen
years of field observations in the Prince Edward bay area.
Nonetheless, Dr. Goddard-Hill was able to give a presentation that stressed
worldwide declining bird populations, the unreliability of the bird mortality figures provided by wind companies, and the
probability that bird mortality at OP would exceed that on Wolfe Island because the South Shore is a more Important Bird Area.
Bryn Gray, one of the lawyers representing Gilead, asked only about Dr.
Godard-Hill’s research into wind development. Ms. Davis asked no questions but objected to an appendix in Dr.
Goddard-Hill’s submission. The ERT panel deferred a decision on admissibility until Dr. Goddard-Hill made a later
presentation on the health aspects of wind turbines.
Presentation of Parker Gallant
APPEC member and director of Wind Concerns Ontario (WCO), claimed no expert witness status. His presentation focussed on information
on habitat and guidelines provided by the Ministry of Natural Resources, and on international research on bats. He contended
that 120-m setbacks were inadequate because of the high bat mortality recorded elsewhere and MNR’s failure to discriminate
among sizes and types of wind turbines. According to the published research, MNR regulations do not fully take into account
bat feeding patterns and roosting sites, turbine sound and electromagnetic emissions, and blade speed causing decompression.
Consequently, bats are highly vulnerable to IWTs.
Mr. Gallant also stated that Stantec had omitted bat monitoring in May
in its report, even though MNR guidelines note that the busiest months for bat activity are May through to September.
Hence, Stantec was underreporting the presence of bats and the potential for harm.
Finally, Mr. Gallant argued that Gilead Power has contravened the Environmental
Protection Act by violating the status of Ostrander Point as an Area of Natural and Scientific Interest (ANSI) and by not
consulting with Quinte Conservation Authority, which has responsibility for shorelines and wetlands.
Gilead lawyer Bryn Gray asked questions only about WCO’s overall
position on wind development. Ms. Davis had no questions but commented that later witnesses would address the issues
Mr. Gallant had raised.
Mr. Gallant also attempted to present to the ERT panel the record of
his second site visit to Ostrander Point. Lawyers for the MOE and Gilead Power objected to this late submission, and
Chair Wright ruled against its admissibility.
The material has been made public on the WCO website: http://www.freewco.blogspot.ca/2013/03/what-ostrander-point-ert-site-tour.html#more.
Stay of Construction
PECFN’s motion for
a stay of construction was put in abeyance when Gilead’s lawyer explained that no construction could occur before the
alvar management plan was approved. Since construction was also precluded between May 1 and July 31, it would likely
not occur while the ERT was in session. Gilead’s lawyer undertook to notify Mr. Gillespie if Gilead’s plans
changed, at which time the motion to stay could be brought forward again.
The hearing ended with PECFN
lawyer Natalie Smith’s request to add two new witnesses, Dr. Frederick Beaudry and Dr. Charles Smith, whose reports
had previously been submitted in evidence. It had been expected that Ian Dubbin would be relying on their reports, but
he had not been accepted as a Presenter or Participant. Both opposing lawyers objected to the witnesses because of preparatory
and scheduling problems. The ERT panel, however, accepted Dr. Beaudry as a witness on April 3 because of his expertise
on the Blanding’s turtle. The decision on Dr. Smith was deferred until a specific date was known for his availability.
Upcoming ERT Sessions
A teleconference among
the ERT panel and all the lawyers is set for Wednesday afternoon. It will deal with procedural matters and may not be open
to the public.
The next full ERT hearing takes place on Monday, March 25, in Demorestville, time not yet announced.
One of Gilead’s lawyers is scheduled cross-examine Dr. Catling.
The hearing is expected to run March 25-28.
-Henri Garand, APPEC chair
PECFN report on Tribunal Appeal hearing March 18, 2013
Sylvia Davis, the Ministry of the Environment’s
lawyer, cross-examined our witness, Paul Catling, for the entire first half of the day, even though she claimed she would
take only one hour.
her theme that Ostrander Point is a disturbed area, she opened a path for Paul to further discuss alvar habitats and the effects
of roads, pollutants and invasive species. Davis questioned his assertion that construction would harm 50 ha, not six.
He explained once more the fragility of alvar species and how water movement and drainage affect the site.
He again discussed alvar plants, especially those
that are unique to these areas and thus indicators of the site’s importance. Available studies have listed only
30% of the species that would be expected to be found. No hydrological study was done.
Davis raised the subject of the Alvar Management
Plan imposed on Gilead’s project prior to construction. She asked many questions, trying to show that human management
is better than nature’s. Paul explained why Gilead’s goal of returning the site to pre-construction condition
Gilead’s lawyers say they intend to take
5 hours to cross examine Paul, so even after spending two days on our appeal, Paul will need to return. This raises serious
questions about the Tribunal process. The Green Energy Act says that if a decision is not reached in 6 months –
July 3 – the proponent automatically wins approval. Will the Tribunal limit the amount of time spent on cross
examinations by the Proponent? Can Pecfn and its volunteer witnesses continue a legal court procedure against a multi-million-dollar-corporation
and a government funded by tax payers?
Our lawyer, Eric Gillespie, asked about the status
of PECFN’s Motion to prevent construction activity. The Tribunal adjourned our motion; Gilead has agreed that
no work will be done on the site. The proposed Alvar Management Plan must be discussed by the community and public authorities
prior to construction. It has not been determined how that discussion will take place..
The remaining time was devoted to two Presenters.
Parker Gallant, vice-president of Wind Concerns Ontario, discussed the status of bats on the site and the harm the project
will do to the Species at Risk. His presentation is available on the WCO site.
Alban Goddard Hill cited his experience with the
Prince Edward County South Shore Important Bird Area and the Prince Edward Point Bird Observatory as reasons for believing
that the Ostrander Point wind project will cause serious and irreversible harm. With each death, genetic diversity is
lost, he explained. This hastens the decline of species. He included an appendix of MOE activities in the Bay of Quinte
area which showed how difficult it is to make wise decisions.
be a teleconference call Wednesday afternoon to confirm dates for March and April. As soon as we are updated, we will
post the dates on our website. The venue has not been mentioned; we assume it will continue at Sophiasburgh Hall in
Demorestville, even though it is inconvenient, with no local cafes.
Dr. Robert Barclay on Bats at the ERT hearing Thursday March 7
Dr. Robert Barclay presented evidence about bats on video conference from Calgary to the ER Tribunal yesterday.
Myrna Wood was able to listen in on the telephone and sends the following report.
I think Robert did well with a clear and simple statement. Sarah Kromkamp, lawyer for the MOE, asked him
questions about his various studies which did not seem to lead anywhere at all. Gilead’s lawyer (It was hard on
the telephone to be sure whether it was Mr. Hamilton or Mr. Grey) tried to muddy the waters by raising questions about which
bat species actually migrated. This was in response to Dr. Barclay quoting Stantec’s figures on “unidentified”
species. Grey attempted to make him agree that many of those were really Brown Bats. The lawyer pointed out that
the map Barclay had seen did not include the placement of the turbines. This allowed Robert to say that if they are on the
shoreline it would be the most dangerous for the bats. His Manitoba studies show the bats follow the shoreline to avoid
flying over the lake. Three of Gilead’s turbines are proposed along the shoreline. Grey attempted to introduce a new
document by email to Dr. Barclay in Calgary. The document did not arrive and Mr. Gillespie stepped in to argue against
introducing evidence in this fashion. Mr. Gillespie then asked Dr. Barclay several simple direct questions giving him the
opportunity to clear up whether the types of species would have changed his conclusions.
Tribunal co-chair Heather Gibbs asked perceptive questions: First she quoted Stantec’s report that there are no bat species at risk. Dr. Barclay
answered that was true when the report was written, but since then the emergence of white nose syndrome had caused the decline
of two bat species resulting in an emergency posting as Endangered by the Committee on the Status of Species at Risk in Ontario
(COSSARO). One of the bats listed, the Little Brown Bat, is one of the most common bats. To have it designated as Endangered
Second question: Dr Barclay had mentioned to the MOE lawyer he did not agree with Ontario Bat Guidelines for Industrial
Wind Turbine projects (which they cut off immediately) so Ms. Gibbs asked him why? He answered that the allowable threshold
of killing 7 bats per year per turbine was inadequate. With the numbers of turbines growing exponentially in North America,
the cumulative effects of such a high fatality rate on top of the effects of white nose syndrome will cause harm to the species
at the population level. He also mentioned that with all the projects planned for the eastern end of Lake Ontario and
the South Shore of Prince Edward County that the cumulative kill rate would be unacceptable. He used the analogy of
hunting regulations where a hunter is allowed a set number of ducks, but the number of hunters is also controlled.
Tribunal co-chair Robert Wright followed up on the cumulative effects and asked about acceptable kill rates in other
jurisdictions. Dr. Barclay said that the BC threshold is 7 bats per turbine per year. In Hawaii it is 1 and in
West Virginia it is 3 bats per turbine per year. In many US states the threshold numbers are vague, or there are no
numbers. It was satisfying to hear the Tribunal really getting to the environmental effects of the turbines relative
to bat mortality.
The hearing continues on March 18 and then on March 25-28.
Paul Catling Day at the ERT
Wed March 6
Today Dr. Paul Catling is our hero. His testimony at the Environmental Review Tribunal
showed that proper botanical studies had not been carried out as part of the Environment Impact Study of the site. His conclusion
was that only 30% of the species occurring on this globally imperilled alvar site has been identified. Paul also identified
several plant species at risk growing at Ostrander Point.
Through a PowerPoint presentation Dr. Catling reviewed
his own investigation of Ostrander Point and contrasted it with other studies carries out since the late 1990’s.
His conclusion was that development of a wind turbine project on the Ostrander Point Crown Land Block would cause serious
and irreversible damage to the important natural alvar environment. The sensitive ecology would not withstand the construction
of roads, turbine pads, crane pads and lay down areas. All these activities would seriously impact the delicate and
rare plant communities at Ostrander Point. Combined with the damage caused by interference with hydrogeology, as much
as 50 hectares of the site would be impacted.
Council for the Ministry of the Environment spent the
afternoon trying to discredit Dr. Catling’s conclusions. Ms. Davies tried to establish that Ostrander Point was
already a seriously impacted ecosystem. She spent a lot of time talking about the presence of European Buckthorn and
other invasive species. We heard a lot about studies that Dr. Catling had carried out on various alvar communities in
Eastern Ontario. Throughout it all, Dr. Catling remained cool and controlled, easily explaining his work and remaining
committed to his original conclusion that Ostrander Point is no place for wind turbines. Dr. Catling’s cross examination
will continue on Monday March 18 with Ms. Davies and finally Mr. Hamilton from Gilead Power.
PECFN expresses sincere gratitude to Dr. Paul Catling
for his commitment to www.SaveOstranderPoint.org
ERT Site visit report March 5
The Environmental Tribunal visited Ostrander Point today.
It was a brilliantly sunny day – with no wind – perfect for appreciating the peaceful beauty of the South Shore
of Prince Edward County. Present for the tour were The Tribunal members, Ms. Heather Gibbs and Mr. Robert Wright, the
legal representatives of the Ministry of the Environment and Gilead as well as Eric Gillespie and Natalie Smith representing
PECFN. Mike Lord from Gilead was there to lead the expedition and representatives from the County Sustainability Group,
Wind Concerns Ontario and PECFN rounded out the trekkers. Gilead had Helmer Rd. plowed to make walking easier.
Mike Lord used a map to describe the site and we took off down Helmer Rd. We walked along Helmer Road and down a pathway
that appeared to be somewhat west of turbine sites 1, 2 and 3 until we reached Lake Ontario. It was my impression that
all the participants appreciated the beauty and peacefulness of the site. We turned around and walked back.
Unbelievable as it might seem, that walk took us almost 2.5 hours. Most of us were pretty well tired out by it all.
The hearing continues Wednesday March 6, 9:30 am Sophiasburgh Town hall. All are welcome.
The group starting out – we got a bit straggly as time went on.
Ostrander Point Hearing Begins – March 4 update for Donors and Friends
The hearing finally started today. Approximately 150
people crowded into Sophiasburgh Town hall in Demorestville for the 11 pm starting time. The tribunal members were revealed:
Mr. Robert Wright, who we are familiar with from the preliminary hearing, and Ms. Heather Gibbs. Present were lawyers
for the Ministry of the Environment and Gilead Power along with parties to the appeal Prince Edward County Field Naturalists
and Alliance for the Protection of Prince Edward County and their legal representatives Eric Gillespie and Natalie Smith.
Because of a previous commitment Eric Gillespie had
to leave Demorestville by 12:30 pm. It was decided to take care of some preliminary business and then have Eric Gillespie
do his opening statement. It was noted that the hearing has been designated fragrance free.
The site visit requested by Gilead was set up for Tuesday March 5. Individuals will
arrive in their own vehicles at the corner of Babylon and Helmer Roads for a 2 pm start. Only the Tribunal, the parties,
presenters, participants and their lawyers are invited to the site visit.
On Wednesday March 6 the hearing will commence at 9:30 am at Sophiasburgh Town Hall.
Expert witness for PECFN, Dr. Paul Catling will be heard. Paul Catling holds a Ph.D. and is a Research Scientist for Agriculture
and Agri-Food Canada. He specializes in a number of areas including plant taxonomy, native germplasm, berry crops, medicinal
plants, and invading alien plants. Mr. Catling has numerous affiliations including being on the Committee on the Status
of Endangered Wildlife in Canada, the Board of Directors of the Nature Conservancy of Canada, the Chair of Biodiversity Publications
Committee and Chair of the Ecology Canadian Botanical Association. He is also an Adjunct Professor at the University of Ottawa
and has numerous scientific research publications.
On Thursday March 7 the hearing will move back to Toronto to hear evidence from witnesses by video conference.
Mr. Ian Dubbin and Dr. Robert Barclay will be heard. Dr. Barclay is a Professor and the Head of the Biological Sciences Department
at the University of Calgary. He teaches in the areas of biology, ecology, conservation biology, field biology and mammalogy.
In his career he has supervised over 35 graduate students and has been the recipient of numerous prestigious research grants
including the Natural Sciences and Engineering Research Council of Canada (“NSERC”) Operating and Equipment Grants.
He also has a substantial publication record which includes a long list of peer reviewed articles. Ian Dubbin has presenter
status in the hearing. Mr. Dubbin is a retired engineer from Kingston.
Friday March 8 has been left unscheduled at this point. (cancelled) Still to
be determined is the schedule for presentations from Wind Concerns Ontario vice-president Parker Gallant, County Sustainability
Group representatives, Don Chisholm and Deborah Hudson. Ms. Kari Gunson may be scheduled for Friday as well. Ms.
Gunson is a Principal Road Ecologist for Eco-Kare International. She holds a Bachelors of Science in Zoology and Ecology from the University of Calgary, a Master of Science in Conservation Biology from the University
of Cape Town, and a Master of Science in Geospatial Technologies from New York State University. For the past 13 years she
has worked as a contract road ecologist on Road Mitigation Projects throughout North America, including Banff National Park,
Montana, New York, Vermont, and Ontario.
Eric Gillespie’s opening statement outlined the reasons for the PECFN appeal of
the project approval. He mentioned that Ostrander Point was recognized by local, provincial and national and international
organizations as the worst site for wind turbines. Because of that and also since this is the first multiple witness
appeal on environmental grounds, the case is precedent setting. Ostrander Point is in the middle of the PEC South Shore
Important Bird Area. Ontario’s Environmental Commissioner has recommended against using IBA’s for wind turbines
development. It is a breeding area for 14 priority species as recognized by Partners in Flight and 19 Species at Risk. Mr. Gillespie went over the list of expert witnesses that he will call and gave a brief description
of each of their area of expertise.
The public is invited to rejoin the hearing on Wednesday March 6 at 9:30 am in Sophiasburgh
Town Hall, in Demorestville.