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Further wind litigation in the Oak Ridges Moraine: Part II

Written by on February 04, 2016. Posted in Environmental & Regulatory Matters, News

Recently, the Environmental Review Tribunal (the “Tribunal”) allowed in part the appeal of a Renewable Energy Approval (“REA”) approving the construction of a wind turbine facility in the Oak Ridges Moraine Area in the City of Kawartha Lakes (the “Project”). The Tribunal concluded that, with respect to harm to the woodlands, neither the compensation nor mitigation measures proposed by the approval holder were sufficient to show that the removal of a portion of the woodlands would not result in serious and irreversible harm.

This appears only to be the second time that a REA has been successfully challenged at the Tribunal.

In SLWP Opposition Corp v Ontario, 2015 CanLII 83848, the Appellant was a community group and argued that the project would cause serious harm  to human health and serious and irreversible harm to plant life, animal life, or the natural environment.

The Tribunal, as it has consistently done in the past, concluded the Appellant could not establish harm to human health. In this case, the evidence only raised concerns about the potential for harm to human health.

The Appellant further argued that there was a serious risk to the natural environment from the potential for the spill of hydrocarbons into the groundwater due to the type of equipment proposed. Although the Appellant attempted to establish that a spill of hydrocarbons was inevitable, the Tribunal concluded that there was little risk of a spill or groundwater contamination given the equipment proposed and safeguards in place.

The Tribunal then considered whether the project would cause serious and irreversible harm to plant life, animal life or the natural environment, specifically through impacts to grassland bird habitat and to woodlands/woodland habitat. While there was the real potential for impacts to grassland bird habitat, the Tribunal found that an agreement with a nearby landholder to create compensation habitat would offset the impacts of the project to grassland bird habitat.

However, the Tribunal concluded that, with respect to harm to the woodlands, neither the compensation nor mitigation measures proposed by the approval holder were sufficient to show that the removal of a portion of the woodlands would not result in serious and irreversible harm.

The woodlands were located within the Oak Ridges Moraine Conservation Area, and the Oak Ridges Moraine Conservation Plan considered significant woodlands to be a key natural heritage feature afforded special protection from development. Indeed, development was prohibited unless an exception applied and even then only when a need is shown. This was a strong indication to the Tribunal that the removal of a portion of a significant woodland in this area should be considered serious harm.

The woodlands in this situation was significant as it was a diverse functioning woodland providing connectivity and habitat for a variety of species. The removal of woodlands would result in fragmentation of the woodland, which has already been identified as a serious problem in southern Ontario, leading to an increase of edge habitat at the expense of interior habitat and a loss of biodiversity.

The harm was found to be irreversible. While the approval holder proposed compensation and mitigation measures through replanting, it was unclear whether the functionality lost through woodland removal could be replicated. Even assuming that the functionality could be replaced, it was clear that any attempt to do so would extend decades beyond the life of the Project.

While the Tribunal noted that there has been little consideration of what constitutes “irreversible harm” under the EPA it found the Court’s analysis of the irreparable harm in the injunction context instructive. Prior court decisions had found that irreparable harm was easily established in the context of tree removal given the length of time it takes for trees to regrow.

The Tribunal has only once before this decision allowed (in part) an appeal of a REA for a wind turbine project planned for an ecologically sensitive area at Ostrander Point in Prince Edward County. There, one Appellant successfully established that the project, which would require construction of roads and increased vehicular traffic, was likely to cause serious and irreversible harm to Blanding’s Turtle populations. The Ostrander sage wound its way through both the Divisional Court and the Court of Appeal, with the latter ultimately upholding the Tribunal’s original findings, but sending it back to the Tribunal for reconsideration of remedies.

We previously blogged on recent decisions in which proposed wind projects affecting the Oak Ridges Morainewere rejected.