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The Ontario Court of Appeal has reinstated the decision of the Environmental Review Tribunal on the Ostrander Point wind farm: The Renewable Energy Approval as issued by the Director (Ministry of the Environment and Climate Change) should not be upheld as issued, because of the harm that the project’s roads would do to the endangered Blanding’s Turtles who live in the immediate area. Now the Tribunal must decide whether amendments to the Approval could adequately protect the turtles.

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….

[32] 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 obvious…)

[44] 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 Tribunal’s reasons…

…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.

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