Canada: Ostrander Point Wind Project Gets Green Light From Ontario Divisional Court

On February 20, 2014 the Divisional Court released its decision in Ostrander Point GP Inc. v. Prince Edward County Field Naturalists. The case concerned three appeals from a decision of the Environmental Review Tribunal (Tribunal). The Tribunal's decision addressed an appeal of the Ministry of the Environment's (MOE) decision to grant a Renewable Energy Approval (REA) to Ostrander Point GP Inc. (Ostrander) to construct nine wind turbines (the Project) on a site known as Ostrander Point, about fifteen kilometres south of Picton, Ontario. The Tribunal allowed the appeal and decided to revoke the REA, agreeing with the Prince Edward County Field of Naturalists' (PECFN) position that the Project would seriously and irreversibly harm a species of turtle called the Blanding's turtle.

According to Section 145.2.1(2) of the Environmental Protection Act, in the course of an REA appeal, the Tribunal must determine whether the Project will cause (a) serious harm to human health, or (b) serious and irreversible harm to plant life, animal life or the natural environment. In Ostrander Point, the Divisional Court found that the Tribunal had erred in concluding that the Project would cause serious and irreversible harm to animal life, namely to, the Blanding's turtle. The Tribunal's decision was set aside and Ostrander's REA was reinstated.

Blanding's turtles are a medium-sized freshwater turtle largely confined to the Great Lakes Basin. They have been listed as threatened in Ontario since 2004. Importantly for the purposes of the appeal, female Blanding's turtles are attracted to the gravel shoulders of roadways for suitable nesting habitat. They are occasionally killed by passing vehicles. Vehicular mortality was the main, if not only, threat to the Blanding's turtle that lead the Tribunal to conclude that the Project would cause serious and irreversible harm. The Court held that the Tribunal's conclusion in this regard was an error because while there was evidence that the Blanding's turtle would be harmed by the Project, there was no evidence that this harm would also be irreversible. The Court found the Tribunal's conclusion on irreversible harm was problematic, and therefore unreasonable, for three reasons:

• There was no evidence as to the size of the population of Blanding's turtles at the Project site or otherwise within Ontario. It was therefore impossible to determine whether an increase in the mortality rate at the Project site would or would not be significant in terms of irreversibility.
• The Tribunal did not have any evidence regarding the current vehicular traffic on the site nor did it have any evidence regarding the increase in vehicular traffic that would result from the Project.
• The Tribunal did not properly take into account the fact that Ostrander had obtained a permit from the Ministry of Natural Resources under the Endangered Species Act. The permit expressly permitted Ostrander to "kill, harm, harass, capture, possess and transport Blanding's Turtle" subject to specified conditions. The Divisional Court found that the Tribunal was wrong to dismiss the permit as irrelevant to the magnitude of harm that would result from the Project. In the Court's view, the permit should have been considered because it went to the ultimate issue of whether the harm was irreversible.

Further, the Court held that even if the Tribunal's conclusion on the issue of serious and irreversible harm was reasonable, the Tribunal could not have revoked the REA without first inviting the parties to make submissions on the appropriate remedy. The Tribunal's failure to invite submissions from the parties was a breach of the rules of natural justice. In addition, it was open to the Tribunal to choose a remedy that was focused on eliminating the increased risk to turtles posed by the additional access roads (e.g. by prohibiting public access to the roads). The Tribunal did not have to go to the extreme of revoking the REA. For these reasons, Ostrander's appeal was allowed and the Tribunal's decision was set aside.

The Divisional Court also dismissed cross-appeals from PECFN and the Alliance to Protect Prince Edward County (APPEC).

PECFN asserted that the Tribunal was wrong to conclude that the Project would not cause serious and irreversible harm to birds and alvar (i.e. naturally open areas of thin soil over flat limestone or marble rock). With respect to birds, the Court found that there was expert evidence that bird fatalities at Ostrander Point would not likely reach "biologically significant numbers". With respect to alvar, there was evidence that the alvar had previously recovered from significant disturbances caused by military operations conducted by the Department of National Defence. Accordingly, there was evidence that alvar is resilient and could similarly recover from any disturbances caused by the Project. In light of the evidence, the Court held that the Tribunal's conclusion regarding serious and irreversible harm to bird and alvar was reasonable.

APPEC's cross-appeal concerned the first branch of Section 145.2.1(2) of the EPA—serious harm to human health. The Tribunal had rejected the evidence of APPEC's expert witness, Dr. Robert McMurtry, because his evidence was based on theory that had yet to be proven. The Court held that the Tribunal's conclusion in this regard was reasonable and dismissed APPEC's ground of appeal.

The parties have 15 days from the date of the Divisional Court's decision to seek leave to appeal to the Ontario Court of Appeal.  

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