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Turtles send Ontario wind farm proposal back to environment tribunal

The Globe and Mail
Sean Fine
April 21 2015

It planned to build its wind-energy project only from October till May, while the Blanding’s turtle slept and the whippoorwill flew south. It would set aside 40 hectares of protected habitat as compensation for the eight hectares that would be disturbed. It would fund a research project at a Canadian university on the Blanding’s turtle, a freshwater creature known for its smiling mien and 90-year life span. It would monitor the two species for 20 years.

But despite those efforts, Gilead Power Corp. ran into a legal roadblock this week when the Ontario Court of Appeal called a halt to the company’s $80-million plan to install nine wind turbines in Eastern Ontario. The court accepted an environmental tribunal’s ruling that a road being built to and from the 324-hectare site would put the turtle at severe risk – even though the Minister of Natural Resources gave Gilead an “overall benefit permit” three years ago. That permit said the company could “kill, harm, harass and destroy” habitat for those species, because it intended to make up for the harm.

The Ontario Court of Appeal’s 3-0 ruling sent the project back to the environmental tribunal to settle the conflict between the turtle and the project. It is the first challenge to a government-approved renewable energy project to reach the province’s highest court. It is also the first to have been initially rejected by the environmental tribunal.

In upholding the importance of protecting endangered species and stressing that the government permit is only one piece of evidence to be considered, the court ruling may threaten other renewable energy and infrastructure projects in Ontario, according to Michael Lord, Gilead’s president. Gilead owns Ostrander Point Wind Energy LP, which is responsible for building the project.

“Any infrastructure project that is subject to an endangered species permit or environmental compliance approvals is potentially in jeopardy,” he said in an interview. The Gilead project “went through a very, very rigorous process that only the Minister of Natural Resources can sign. So that permit carries a tremendous amount of weight, and it was almost disregarded when it came to the requirements under the Environmental Protection Act.”

The case also established that the numbers of an endangered species at risk do not need to be known to protect them. The appeal court, citing expert testimony, said the number is “likely small.”

“That’s a key issue because we know it’s often very difficult to get numbers on these types of species,” Eric Gillespie, a lawyer representing Prince Edward County Field Naturalists, which initiated the challenge, said in an interview.

A spokesperson for the Ontario Environment Ministry said that because the case is now before the environmental tribunal, it would be inappropriate to comment.

The project would create 300 construction jobs for nine months, and five permanent jobs, and power 50,000 homes, Mr. Lord said. He added that the site was used by the Canadian defence department to test air-to-ground bombs in the 1940s and ’50s, and though the habitat was virtually “obliterated,” the endangered species did not suffer serious and irreversible harm – Ontario’s standard for protecting wildlife from development.

Caroline Schultz, executive director of Ontario Nature, a conservation group, said the decision shows that while the serious and irreversible harm threshold is high, the ruling “gives us faith that there actually is a standard.” She said that Gilead’s permit did not hold up because “when push came to shove, the actual proof that overall benefit would be achieved just wasn’t there.”

She said Ontario Nature supports wind-energy projects, but “the fundamental issue is to make sure the site is appropriate.”

Mr. Lord said the company is proposing to close to the public the 5.4 kilometres of road deemed a danger to the turtle, and still expects the project to gain the tribunal’s go-ahead. But Mr. Gillespie said the road-closing idea is “clearly ineffective,” and “we think should make for a very short hearing, and the same end result.”

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