Canada: Wind Farms Vs Blanding's Turtles – A Final Decision At Last?

Last Updated: July 1 2016
Article by Charles Birchall

On June 6, 2016 the Environmental Review Tribunal ("ERT") released its decision determining the appropriate statutory remedy respecting the Director's approval of the construction and operation of a nine turbine wind farm at Ostrander Point. The remedy hearing decision takes account of proposed mitigation measures for preventing serious and irreversible harm to the Blanding's turtle population.


Summer is here. Trips and cottage time are being planned. Summer camps will be in full swing shortly. And, Canada Day is fast approaching.

As people prepare to spend a little less time in front of computers, iPads, and cell phones, it may be easy to miss an important date – at least in the context of the three and a half year battle over a renewable energy approval (the "REA") issued by the Director, Ministry of the Environment and Climate Change (the "Director" and "MOECC") on December 20, 2012, to Ostrander Point GP Inc. as general partner for and on behalf of Ostrander Point Wind Energy LP ("Ostrander"). The REA would permit Ostrander to install nine wind turbine generators (the "Project") at Ostrander Point near Picton, Ontario.

July 6, 2016 is the last date on which Ostrander can appeal a decision rendered by the ERT to once again revoke the Director's decision to issue the REA. This is the first REA appeal proceeding where an appellant has met the environmental harm test in s. 145.2.1(2)(b) of the Environmental Protection Act (the "EPA") – namely a renewable energy project that will cause "serious and irreversible harm to plant life, animal life or to the natural environment". It is also the first hearing solely on the matter of remedy in the history of renewable energy approval appeals in Ontario.


The ERT has described the area for the proposed wind farm as follows:

"The Ostrander Point Crown Land Block is 324 hectares of provincial Crown land located about 15 kilometres ('km') south of Picton on the south shore of Prince Edward County, and is one of the least developed areas of the County. It is bordered by three roads and Lake Ontario to the south. It contains a provincially significant wetland in the southeast corner and is known for its alvar vegetation. It is used for recreational purposes such as camping, hiking, "birding", and all-terrain vehicles.

The Project would require the construction of approximately 5.4 km of gravel access roads on the Site that would be approximately 6 metres ('m') wide with larger turnarounds. The access roads would be used to construct the wind turbines, for their ongoing maintenance, and are to be removed after decommissioning." (paras 4 and 5)

As we have reported previously, (click here), following an appeal by the Prince Edward County Field Naturalists ("PECFN") and the Alliance to Protect Prince Edward County ("APPEC"), the ERT revoked the REA in July 2013 on the grounds that the Project would cause serious and irreversible harm to a population of Blanding's turtles, a threatened species in Ontario. The Divisional Court subsequently set aside the ERT decision as being "unreasonable" due to four errors of law. On further appeal, the Court of Appeal reversed the Divisional Court's findings save for the remedy imposed by the ERT of revoking the Director's decision to issue a REA. The Court concluded that the ERT should have given the parties the opportunity to address the appropriate remedy to be adopted by the ERT. As a consequence, the Court of Appeal remitted the matter back to the ERT for a hearing to address the issue of the remedy. It also held that Ostrander could provide fresh evidence at the hearing of the steps that would be taken to prevent public access to the gravel roads leading to Project's turbines thus preventing or mitigating "serious and irreversible harm" to the Blanding's turtles.

ERT's Analysis and Findings

ERT's Remedy Powers are Discretionary - Under section 145.2.1(4), once the ERT determines that there will be "serious and irreversible harm" to animal life, the ERT may do one of the following:

  1. revoke the decision of the Director;
  2. by order direct the Director to take such action as the ERT considers the Director should take in accordance with this Act and the regulations; or
  3. alter the decision of the Director, and, for that purpose, the ERT may substitute its opinion for that of the Director.

Based on the wording of section 145.2.1(4), the ERT confirmed that its statutory remedial power is discretionary. In exercising this power, the ERT went on to state there is a "balancing of factors" that must be accounted for including the purpose of the EPA to provide for the protection and conservation of the environment, including animal life. The ERT also noted that the legislative objective of promoting renewable energy approvals under the EPA must also be considered but that this factor cannot be presumed to take priority over other all other factors.

Precautionary Principle Applied - The ERT also canvassed the application of the precautionary principle in the context of the EPA renewable energy approval scheme. Reference was made to the Supreme Court of Canada case 114957 Canada Ltée (Spraytech, Société d'arrosage) v. Hudson (Town), [2001] 2 S.C.R. 241 that defined the precautionary principle at para. 31 to mean:

"Where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation."

The ERT concluded that the principle should be applied not only in its decision-making but also in decisions taken by the Director respecting REAs:

"The Tribunal finds that the precautionary principle, a principle of international law incorporated into domestic law in Spraytech and a key principle of the MOECC's [Statement of Environmental Values], applies to decisions of the Director and to the [ERT's] choice of the appropriate remedy. On the same basis, the [ERT] further finds that the principle of an ecosystem approach to environmental protection is also a relevant consideration to the Tribunal's s. 145.2.1(4) remedial powers." (para. 61)

Proposed Mitigation Measures Not Effective In assessing Ostrander's evidence, (presented at the 2013 appeal hearing as well as at the remedy hearing), the ERT determined that there are two types of mitigation measures proposed to reduce the road mortality of Blanding's turtles: measures to keep the turtles off the roads, and measures to keep traffic off the roads where turtles are present.

With respect to the first set of measures to keep turtles off roads the ERT concluded that evidence of the use of culverts, fencing, and the creation of artificial nesting sites in safe locations had not proven in other cases to be successful.

With respect to the second set of measures to keep traffic off the access roads, Ostrander proposed the following:

  1. One gated point of access to all access roads together with gates on the three trails in the Project area;
  2. Signs indicating not access;
  3. On-site Project maintenance staff to monitor and enforce access restrictions; and
  4. Immediate reporting of unauthorized trespassing to the Ontario Provincial Police.

However, the ERT was not persuaded on a balance of probabilities that such efforts over time would prove successful enough to prevent serious and irreversible harm to the Blanding's turtle population:

"The Tribunal accepts, on a balance of probabilities, that the gates will deter some public road users, and it is likely that there will be less public traffic on Project access roads with the gates, than without them... however, the Tribunal concludes that the success of the gates in preventing public access over the time period of relevance to this species depends almost entirely on well-intentioned visitors not to use the access roads because they are gated and signed. It is unlikely poachers will be deterred at all, and in fact easier access to the Site via better roads will likely facilitate poaching. The Tribunal received insufficient evidence on which it can reliably find, on a balance of probabilities, that the elements of the Road Access Control Plan will effectively deter members of the public from driving vehicles on access roads. " (para. 129)

The ERT preferred and accept the evidence of the experts but forward by PECFN and APPEC that,

"despite the proposed gates on the access roads, the various threats to the local population of Blanding's turtle [would] still represent a risk, although it may be moderate in any particular year, that [would] cumulatively over the life of the Project cause serious harm to the population of Blanding's turtle on the Project Site and surrounding area." (para. 130)

Appropriate Remedy In exercising its discretionary statutory power and taking account of various factors, the ERT concluded that the Project should not proceed:

"The Tribunal finds that to proceed with the Project, when it will cause serious and irreversible harm to animal life, a species at risk and its habitat, is not consistent with the general and renewable energy approval purposes of the EPA in s. 3(1), protection and conservation of the natural environment, and s. 47.2(1), protection and conservation of the environment, nor does it serve the public interest under s. 47.5. In this particular case, preventing such harm outweighs the policy of promoting renewable energy through this nine wind turbine project in this location." (para. 138)

The ERT also took the step of applying the precautionary principle in the following fashion:

"In regards to the general application of the precautionary principle (see Spraytech), Blanding's turtle has not been the subject of extensive scientific study generally, and in this location in particular. This is evident from the disagreements among the expert biologists at both the 2013 hearing and in this remedy hearing. Proceeding with the Project where there is the threat of serious and irreversible harm to a species at risk, including its habitat, and a lack of full scientific certainty regarding the species, would not be consistent with the precautionary principle." (para. 142)

On this basis, the Tribunal determined that "in the unique circumstances of this case" the appropriate remedy under section 145.2.1(4) of the EPA would be to revoke the Director's decision to issue the REA.


It has been three and a half years since the Director issued the REA to Ostrander. Is this the last step in the appeal process? Will Ostrander appeal the remedy decision to Divisional Court?

Even if there is no appeal, one should not forget that the ERT's decision was determined "in the unique circumstances of this case". For the following reasons, it is unlikely that there will be many instances where a renewable energy project will be turned down for failing to meet the statutory environmental harm test concerning plant life, animal life or the natural environment.

The environmental harm test in section 145.2.1(2)(b) of the EPA" has a very high standard. A party such as PECFN or APPEC must establish on a balance of probabilities that the renewable energy project that will in fact cause "serious and irreversible harm." This standard involving "will cause" and "irreversible" components must also be met after taking into account various proposed mitigation measures.

In Ostrander case, the Project site would be entirely composed of high quality Blanding's turtle habitat, which the ERT found in the 2013 decision to fall within the definition of "critical habitat" under the Ontario Endangered Species Act. Further, the ERT adopted the expert's opinion that even a low loss of life would lead to the extinction of the "threatened" Blanding's turtle. The proposed mitigation measures, in one of the least developed parts of the south shore of Prince Edward County, were determined to be not effective enough to prevent such a fate for the Blanding's turtle population on the Project Site and in the surrounding area.

Enjoy the summer of 2016. We will let you know if the Ostrander saga has come to an end.

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
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