Canada: Environmental Tribunal Reluctantly Approves Wind Turbines Near Eagles’ Nest

Last Updated: November 22 2013
Article by Dianne Saxe

The Environmental Review Tribunal has issued another decision approving a 45 turbine wind farm, but strongly recommended that the proponent defer or relocate the two turbines within 800 metres of a bald eagles' nest.Lewis v. MOE, 13-044  is an appeal from a Renewable Energy Approval Number 2494-94QQ97 (the "REA"), issued by the Director, Ministry of the Environment ("MOE"),  to Bornish Wind LP, as a general partner for and on behalf of Bornish Wind Energy Centre (the "Approval Holder") under s. 47.5 of the Environmental Protection Act ("EPA"). The Bornish wind farm will be a Class 4 wind facility with 45 wind turbine generators, with a total name plate capacity of 72.9 megawatts (the "Project"), located in the Municipality of North Middlesex, Middlesex County, Ontario.

On May 13, 2013, Robert Lewis (Case No. 13-044) and the Municipality of North Middlesex (Case No. 13-045) filed separate appeals for a hearing before the Tribunal pursuant to s. 142.1 of the EPA.  The Municipality filed its appeal on the basis of harm to human health and Mr. Lewis filed his appeal on the basis of harm to the environment, particularly an eagles' nest within 800 metres of two of the turbines.

The Tribunal dismissed the human health argument, as it has in all previous cases, as the evidence of claimed harm does not meet the statutory test. But the Tribunal found there was good reason for concern about the potential effect of the wind farm on the eagles' nest.  This did not meet the statutory test, so they were obliged to approve the wind farm. However, the Tribunal strongly recommended that the proponent defer the two turbines within 800 m. of the nest, and obtain much evidence that the eagles would be unaffected before building those two particular turbines.

Wind turbines and eagles

The Tribunal said:

[22] The approach of maintaining existing habitats is well supported in Ontario laws and policies respecting natural heritage. ... Where possible, decisions should attempt to maintain existing features that are not easily recreated rather than proceeding too quickly with a relocation, compensation or restoration plan that may not work completely.

[23] In general, species at risk, including extirpated, endangered, threatened, and special concern species, receive added attention in conservation efforts. Their status is also highly relevant in assessing serious and irreversible harm under the EPA.  ...

It is not enough for the Ministry of Natural Resources to sign off on the project; the Tribunal will make its own decision about the impact of a project on an endangered or threatened species, or a species of special concern. And physical harm to the eagles or to their overall population is not required. For bald eagles, given their special status, disturbance of this single pair may be enough:

[56] ...Will the Project affect the eagles' behaviour, including displacement from the breeding site and/or loss of surrounding habitat?  Indeed, it is a question that is the subject of a behavioural study to be conducted by the Approval Holder this year.  It is currently an open question as to how far the tertiary habitat for this nesting pair extends.  Two potential turbines are proposed within 800 m of the nest, which is the radius of potential tertiary habitat as per the Bald Eagle Guidelines....

However, there was no adequate evidence that the eagles will be disturbed.

[67] ... it cannot be said that there has been any proof that there will be harm to these eagles or their habitat, regardless of whether the two proposed turbines nearest the nest are in fact built.  Taken at its highest, the evidence brought forward by Mr. Lewis (largely through cross-examination) is that there is some potential for harm to the eagle pair's habitat.  It does not rise to the level of proof required by the statute....

[69] ...the Tribunal concludes that there may be harm to the eagles or their habitat if there is construction of turbines in the tertiary zone and that the tertiary zone may extend to 800 m when there is a direct line of sight...

[76] ...there is a potential for harm from these two turbines and it is not clear that the current limited duration field studies will sufficiently eliminate that potential for harm.  While the Approval Holder is not "expecting" any harm to result, the possibility of harm remains....

[79] ... there is a perception by some that renewable energy projects take precedence over everything else.  They should not ...  Here, the Tribunal recommends that the Approval Holder not attempt to immediately utilize condition K5(2) of the REA and build the two contested turbines based on a short behavioural study. ...  Relocating or postponing construction of these two turbines would also allow more behavioural studies to be undertaken ....  Further study could provide better information in determining the tertiary habitat zone and deciding whether to build the two turbines in question....

[81] There is no need for the Approval Holder to jeopardize that community goodwill or the eagles themselves by placing two turbines in the potential tertiary habitat of this nesting pair without longer-term data on the pair's behaviour in a newly modified landscape (i.e., one where the rest of this Project has been built, and any neighbouring projects).  While the Tribunal does not have the statutory authority in these circumstances to alter condition K5(2) to require more in-depth longer term study in the absence of proof of harm from the construction of two turbines within 800 m of the nest within the meaning of the EPA test, it does recommend to the Approval Holder that it not immediately build the two turbines on the basis of a short duration behavioural study."

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Dianne Saxe
Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions