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
In association with
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
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.