Eastern Lake Ontario Environmental Research Group 2000 (cont'd from eloerg.tripod.com/waupoos)

Turtles rule? Ontario Court of Appeal Decision: Turtlegate, April 2015
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Turtles send Ontario wind farm proposal back to environment tribunal Add to ...

But despite those efforts, Gilead Power Corp. ran into a legal roadblock this week when the Ontario Court of Appeal called a halt to the company’s $80-million plan to install nine wind turbines in Eastern Ontario. The court accepted an environmental tribunal’s ruling that a road being built to and from the 324-hectare site would put the turtle at severe risk – even though the Minister of Natural Resources gave Gilead an “overall benefit permit” three years ago. That permit said the company could “kill, harm, harass and destroy” habitat for those species, because it intended to make up for the harm.

The Ontario Court of Appeal’s 3-0 ruling sent the project back to the environmental tribunal to settle the conflict between the turtle and the project. It is the first challenge to a government-approved renewable energy project to reach the province’s highest court. It is also the first to have been initially rejected by the environmental tribunal.

In upholding the importance of protecting endangered species and stressing that the government permit is only one piece of evidence to be considered, the court ruling may threaten other renewable energy and infrastructure projects in Ontario, according to Michael Lord, Gilead’s president. Gilead owns Ostrander Point Wind Energy LP, which is responsible for building the project.

“Any infrastructure project that is subject to an endangered species permit or environmental compliance approvals is potentially in jeopardy,” he said in an interview. The Gilead project “went through a very, very rigorous process that only the Minister of Natural Resources can sign. So that permit carries a tremendous amount of weight, and it was almost disregarded when it came to the requirements under the Environmental Protection Act.”

The case also established that the numbers of an endangered species at risk do not need to be known to protect them. The appeal court, citing expert testimony, said the number is “likely small.”

“That’s a key issue because we know it’s often very difficult to get numbers on these types of species,” Eric Gillespie, a lawyer representing Prince Edward County Field Naturalists, which initiated the challenge, said in an interview.

A spokesperson for the Ontario Environment Ministry said that because the case is now before the environmental tribunal, it would be inappropriate to comment.

The project would create 300 construction jobs for nine months, and five permanent jobs, and power 50,000 homes, Mr. Lord said. He added that the site was used by the Canadian defence department to test air-to-ground bombs in the 1940s and ’50s, and though the habitat was virtually “obliterated,” the endangered species did not suffer serious and irreversible harm – Ontario’s standard for protecting wildlife from development.


Ontario wind farm halted by endangered turtles crossing the road Add to ...

The Ontario Court of Appeal ruled on Monday that a 324-hectare, nine-turbine wind farm proposed for the south shore of Prince Edward County puts a population of endangered Blanding’s turtles at risk of dying out in that region’s wetland. The risk is posed not by the wind farm itself but by 5.4 kilometres of roads to and from the site. Experts said the turtles, which range widely as part of their natural life cycle, would inevitably try to cross those roads, exposing them to vehicles, predators and human poachers.

The ruling restores an environmental tribunal’s 2013 decision that the wind farm, while not posing a serious risk to human health, would cause “serious and irreversible” harm to the Blanding’s turtle. That ruling had been rejected by Ontario Divisional Court partly because the tribunal did not know how many turtles live in the provincially significant wetland.

But the Ontario Court of Appeal said the number of turtles at risk does not matter. “The number of Blanding’s turtles, no matter what that number is, satisfies the criteria” for being deemed threatened and endangered, the court said in a 3-0 ruling written by Justice Russell Juriansz. It cited testimony from Frédéric Beaudry, a wildlife ecologist at Alfred University in New York State, that the number is “likely small.”

The Court of Appeal ruling means the case now goes back to the environmental tribunal to decide what should happen with the project, including whether an alternative plan can be permitted that takes the turtles into account. The company involved, Ostrander Point Wind Energy LP, had proposed at an earlier stage to close the road to public access.

The ruling is a setback for Ontario’s multibillion-dollar wind energy business. “It will mean that, in future, wind companies are going to have to pay attention to some of these environmental effects,” said Stephen Hazell, director of conservation and a lawyer with Nature Canada, which supported the suit launched by the Prince Edward County Field Naturalists, a local conservancy group.

Mr. Hazell added that other groups with concerns about the impact of wind projects in their own jurisdictions now have “a legal test that in some cases they may be able to meet.”

During the initial hearing, conservationists argued that the wind project would have adverse effects on a number of species, including migratory birds, but the final decision came down to the Blanding’s turtle alone because of its extreme sensitivity to human activity, particularly roads.

With a bright yellow throat, a gentle disposition and an expression that resembles a perpetual smile, the species makes a tempting target for poaching, even by well-meaning individuals looking for an unusual pet. But Blanding’s turtles usually die once they are captured or released in a different location.

Ponderously slow to grow and mature, females of the species generally do not reproduce until they reach 18 years of age. Even then, they may only lay eggs every other year. The turtle’s long life span offsets its slow replacement rate – adults may live 90 years or more – but only in places when individuals have a good chance of avoiding lethal encounters along the way.

“Losing a couple of females can, in the long run, do a population in,” said Dr. Beaudry, a world expert on the species.

He added that he had no doubt the turtles would be crossing the roads if the wind project went ahead, as they typically travel for kilometres from the places where they hatch in search of food or mates.

Blanding’s turtles are considered globally endangered. Small populations are found in scattered pockets from the American Midwest to Nova Scotia.


Turtle power

Re Fate Of Turtles, Wind Farm Still In Dispute (April 22): We hope that The Globe will continue to ask the Ministry of the Environment why it has intervened in favour of a power project in Eastern Ontario, and why the government issued the company a permit to “kill, harm, harass and destroy” the habitat of species at risk on site.

The measures proposed by Gilead Power to mitigate their government-sanctioned destruction of habitat and potential elimination of the resident turtle population at Ostrander Point are ineffective. As a globally threatened species, the Blanding’s turtle will never be protected by buying more land or by putting gates on roads. It is our responsibility, as stewards of biodiversity, to make sure the turtles’ habitat on the south shore of Prince Edward County remains undisturbed and protected in perpetuity.

We have never received an answer to our numerous queries of why the ministry refuses to exclude industrial developments from significant wildlife habitat, such as this important bird and biodiversity area.

Myrna Wood, president, Prince Edward County Field Naturalists

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Eastern Lake Ontario Environmental Research Group