Ongoing battle between wind developers and conservationists escalates—to the Court of Appeal

July 2, 2014 by Administrator

The Ontario Court of Appeal has granted leave to hear the Prince Edward County Field Naturalists’ case for Blanding’s Turtles threatened by wind energy project development. This is the latest update from an ongoing legal battle over Prince Edward County’s south shore. It began at the Environmental Review Tribunal, when the Prince Edward Country Field Naturalists (PECFN) challenged the decision of the Ministry of the Environment to approve a project on Ostrander Point. PECFN argued that development of this area, home to numerous threatened species including the Blanding’s Turtle, would cause serious and irreversible harm to the species. And for the first time in Ontario history, the Tribunal agreed. The certificate of approval for the Ostrander project was revoked last summer.

Gilead Power Corporation, the project proponent, took the decision to the Ontario Divisional Court. Remarkably, the Toronto court decided that the Tribunal’s Robert Wright and Heather Gibbs, who spent over 40 days hearing evidence of the case, and who visited Ostrander Point and saw the proposed project area with their own eyes, were wrong.

PECFN has taken the case to the Ontario Court of Appeal. Early this year, Blair J.A. stated in his judgment granting leave for written argument that the case raises “issues of broad public implication in the field of environmental law.” And just last week, the Court, after reviewing the parties’ factums, granted leave for oral argument.

This is promising news for environmentalists. In the face of Gilead Power and its ilk, which consistently dismiss concerns for threatened species as trivial, the Court of Appeal has flatly stated that no, to the contrary, threatened species issues are matters of broad public importance that should be treated by the courts as such. And for the legal minded, who may have witnessed with shock the Divisional Court steamroll the decision of the Environmental Review Tribunal—a body charged with these decisions precisely because it has the specialized expertise that traditional courts lack—the Ontario Court of Appeal’s response will be pivotal.

This case will represent a landmark decision in Ontario environmental law. My fingers are crossed that the Court of Appeal gets it right.

by Administrator

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