Canada: ERT ’s Bornish Wind Farm Decision Requires Sufficient Evidence Of Serious And Irreversible Harm

Last Updated: December 3 2013
Article by Charles Birchall

To prove that a wind energy project will cause serious and irreversible environmental harm, you will need an expert and a scientifically solid case.

In a decision released November 12, the Environmental Review Tribunal (ERT) said it will not overturn the approval of a large wind energy facility in southwestern Ontario that, potentially, could pose a threat to a pair of bald eagles nesting in the immediate vicinity. This case underscores the requirement that the evidence must show, on a balance to probabilities, that there will be – versus potential – "serious and irreversible harm."

In adjudicating Lewis v. Director, Ministry of the Environment (ERT Case No. 13-044), the Tribunal found the appellants had not met the statutory test set out in section 145.2.1(2)(b) of the Environmental Protection Act (EPA) and failed to prove that the project "will cause serious and irreversible harm to plant life, animal life or the natural environment."

Opponents of the Bornish Wind Energy Centre did not present any expert evidence, but relied on lay testimony and written submissions about the project's potential harm to the eagles, as well as mass bird kills, habitat loss and damage to other species. The Tribunal was looking for evidence demonstrating that there would be serious and irreversible harm caused to the bald eagles. To that end, it pointed to an earlier case where the ERT rejected the approval of the Ostrander Point Wind Energy Park south of Picton, Ontario, over concerns that road traffic through the site would likely cause "serious and irreversible harm" to a population of the endangered Blanding's turtles found on the project site.

On April 26, 2013, the Ministry of the Environment (MOE) issued a Renewable Energy Approval (REA) to Bornish Wind LP on behalf of the Bornish Wind Energy Centre for the construction, installation, operation and retiring of 45 wind turbine generators in the Municipality of North Middlesex, in southwestern Ontario. The REA was appealed to the ERT by the municipality, on the basis of potential harm to human health, and in a separate appeal by Robert Lewis, on the basis of possible harm to an active bald eagle nest in the area. North Middlesex's appeal was disposed of in a separate decision of the ERT dated August 6, 2013.

During the hearing of evidence, Lewis and other parties focused on potential harm to two bald eagles that have an active nest adjacent to the project. Bornish stated that it would not be removing the nest, but indicated that no turbines would be erected with 800 metres of an active eagle nest. The Ministry of Natural Resources had worked with the MOE in developing and adopting several mitigation and monitoring conditions in the REA.

In determining whether the REA would cause serious and irreversible harm to the bald eagles, the Tribunal noted that the bird is considered to be in the "special concern" category under the Endangered Species Act and this would be an important factor in its assessment. The Tribunal also said that its decision would be based on local circumstances – versus a province-wide assessment – since the "death or displacement of this pair would constitute a loss of bald eagles from the immediate area, as there was no evidence of any other documented nest near this site." Notwithstanding these factors, the Tribunal found that Mr. Lewis had not provided sufficient evidence to meet the test of serious and irreversible harm.

Given the limited evidence offered by Mr. Lewis on this question, 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 ... an appellant must bring sufficient evidence to convince the Tribunal that the appeal test has been satisfied on a balance of probabilities. The test is not drafted in as precautionary a manner as many other provisions in environmental statutes.

The ERT also concluded that direct bald eagle mortality – including collision with turbines, electrocution from the substation, or other contact with project infrastructure – is not likely based on the evidence provided. Nor did it find sufficient evidence to meet the EPA test with respect to other birds and bats, as well as with respect to the project lands and the adjacent lands.

Interestingly, even though the Tribunal found that the test for "serious and irreversible harm" does not capture the concept of the precautionary approach, it nevertheless went on to recommend its application

Given the wording of the Bald Eagle Guidelines (and especially the reference to an up to 800 m tertiary zone if there is a direct line of sight), the most precautionary approach would be to ensure that the turbines are located outside the 800 m radius [from the nest]. The Tribunal recommends that the Approval Holder examine all available options in this regard.

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.

Charles Birchall
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.