The Tribunal ruled that the project would cause serious and
irreversible harm to the Blanding's turtle population that uses the
immediate area and that the proposed mitigation measures would not
prevent that harm. They did not put much weight on the permit
issued by the Ministry of Natural Resources under the Endangered
Species Act. The court upheld the Tribunal's reasoning.
Once the Tribunal decided that the proposed mitigation
measures would not be effective in protecting turtles in the
immediate area, the REA (as originally issued) could not stand:
"All the experts agreed that the continued existence of the
roads constructed for the project risked causing serious harm to
the turtle. They differed only about whether the proposed
mitigation measures would prevent irreversible harm...
accidental road mortality could have a significant negative
impact on the local turtle population.... "the likelihood
that any turtle would cross one of the roads [in its annual cycle]
is extremely high". The roads would also provide poachers and
predators easier access to turtle habitat and nesting sites....
 The Tribunal also found that the fact Ostrander had been
granted an ESA permit did not determine whether the project would
cause serious and irreversible harm to Blanding's turtle. The
Tribunal explained that before issuing the ESA permit, the MNR
considered whether the project would have an overall benefit to the
species as a whole in Ontario, whereas the Tribunal considered the
status of the Blanding's turtle population at the Area. As
well, the Tribunal found the mitigation measures that the ESA
permit required for the Blanding's turtle would not adequately
address the harm to the turtle in the Area...
(BTW, MNR's rationale in issuing this permit is not
 On appeal the question for the court is whether the
Tribunal's decision is reasonable. In determining whether the
decision is reasonable, the reviewing court is concerned with
"justification, transparency and intelligibility" of the
...all the experts agreed that the roads would harm the turtle.
They differed only about whether the proposed mitigation measures
would prevent irreversible harm. The Tribunal's conclusion that
the mitigation measures would not be effective left it with
unanimous expert evidence that the roads would harm the turtle and
the evidence of Dr. Beaudry that the serious harm could not be
adequately mitigated and would be irreversible."
However, the court also ruled that the Tribunal was wrong to
revoke the renewable energy approval without giving the wind
proponent, and the other parties, a chance to be heard on
remedies: Can the project be saved by amendments designed to
prevent irreversible harm to turtles? The proponent has
already arranged to close the roads to the public. Would that be
enough? If not, can they do more?
The case will now go back to the Tribunal to hear evidence, and
to decide whether any amendments to the approval could adequately
protect the local turtles.
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 Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
It is relatively common knowledge that the government has a "duty to consult" aboriginal groups when undertaking actions or making decisions that could adversely affect aboriginal rights, aboriginal title and treaty rights.
On April 5, 2017, Environment and Climate Change Canada released the report of an external Expert Panel that was established in August 2016 to review the scope and process of federal environmental assessments under the Canadian Environmental Assessment Act, 2012.
40 to 60 years may be too old when determining whether to extend a limitation period for a negligence-based environmental contamination claim, the court recently ruled in Brookfield Residential (Alberta) LP (Carma Developers LP) v Imperial Oil Limited, 2017 ABQB 218 [Brookfield].
Our April 7 post on the report of the Expert Panel reviewing federal environmental assessment processes noted that the report contains recommendations for greater inclusion of Indigenous peoples in federal environmental assessment processes.
Over the past week, the Project Law Blog has been discussing the recommendations set out by the Expert Panel in its report entitled Building Common Ground – A New Vision for Impact Assessment in Canada, The Final Report of the Expert Panel for the Review of Environmental Assessment Processes.
On April 5, 2017 the Federal Minister of Environment and Climate Change received her report from an expert panel of four, comprised of three lawyers with significant environmental and aboriginal law experience as well as a retired senior executive of a resource company.
On April 5, 2017, an Expert Panel established by the Minister of Environment and Climate Change (the "Panel") released its report, Building Common Ground – A New Vision for Impact Assessment in Canada, The Final Report of the Expert Panel for the Review of Environmental Assessment Processes (the "Report").
Last week we summarized the recommendations set out by the Expert Panel established by the Minister of Environment and Climate Change in its report entitled Building Common Ground – A New Vision for Impact Assessment in Canada, The Final Report of the Expert Panel for the Review of Environmental Assessment Processes.
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).