The Ontario Court of Appeal has stayed the
Ostrander Point wind approval pending an appeal by the Prince Edward County Field Naturalists.
The Ostrander Point wind farm is the only one in Ontario whose
Renewable Energy Approval (REA) has been overturned by the Environmental Review Tribunal. As for all other
Ontario wind farms, the ERT rejected claims that the wind farm
would cause serious harm to human health. What is different about
Ostrander Point is its habitat for the endangered Blandings Turtle.
The ERT ruled that the wind farm, and more particularly, the road
to it, would pose an unreasonable risk to the turtles who live in
The Divisional Court overturned the ERT decision,
and reinstated the Ostrander wind approval (REA). The court noted
that the Ministry of Natural Resources had issued a permit for the
project under the Endangered Species Act, and that there was no
good evidence of how many turtles lived in the area, nor of the
likely impact of the project (when conducted as required by the ESA
permit) on the relevant population. The court upheld all other
parts of the ERT decision, including their dismissal (again) of the
perennial allegations about human health impacts.
The wind farm developer immediately announced its intention to
start removing vegetation and if possible constructing the
The Prince Edward County Field Naturalists, who
are trying to protect the turtles, brought a motion for leave to
appeal to the Court of Appeal and a request to stay the REA pending
the appeal. The Court of Appeal promptly granted the stay, on the
ground that disrupting the turtles' habitat could cause
irreparable harm. The court also noted that this is the first case
in which it has been asked to opine on Renewable Energy Approvals,
and that there are important questions of public policy to be
" In addition – something of relevance as well in
the context of the balance of convenience – the issues raised
on the proposed appeal are issues of broad public implication in
the field of environmental law. These issues include: (i) the
proper interpretation and application of the term "serious and
irreversible harm" to plant life, animal life, or the natural
environment – the test to be met by a person seeking to have
the Minister's decision to issue an REA reviewed – and
the evidentiary standard required to meet it; and (ii) the nature
of the remedy to be provided by the ERT and by the Divisional Court
on review – here, the Divisional Court substituted its own
remedy rather than send the matter back to the ERT for
reconsideration. These are issues of first impression because the
review in the Divisional Court and, if leave is granted, the appeal
to this Court, constitute the first time that either the Divisional
Court or this Court will have dealt with an appeal from an REA.
 The parties spent much time debating whether irreparable
harm will result if a stay is not granted.
 Clearly the moving party must meet this criterion, but in
my view this type of case is not one in which the evidence is to be
parsed and fine distinctions drawn. Once a habitat is destroyed, it
is destroyed – for at least short-term purposes, in any event
– and the species sought to be protected here is a vulnerable
and endangered species."
Construction of the wind farm has to wait until the Court
of Appeal makes its decision on these important issues about
protecting species at risk.
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