Wood Bull Blog

Divisional Court Overturns ERT Decision Re Blanding’s Turtle

Mar 07, 2014

On February 20, 2014, the Divisional Court released its decision in Ostrander Point GP Inc. v. Prince Edward County Field Naturalists overturning the Environmental Review Tribunal’s (the “Tribunal”) decision to revoke the wind farm proponent’s Renewable Energy Approval (“REA”) (see our blog post on the original decision).

The Divisional Court found that, although there was evidence that the proposed wind farm would cause “serious” harm to Blanding’s turtle, there was not enough evidence to support the Tribunal’s conclusion that such harm would be “irreversible” as required under the Environmental Protection Act (the “EPA”).

The Divisional Court found the following errors of law in the Tribunal’s decision:

i. the Tribunal failed to separately identify and explain its reasons for concluding that, if serious harm would result from the Project, that serious harm was irreversible;

ii. the Tribunal concluded that serious and irreversible harm would be occasioned to Blanding’s turtle without any evidence as to the population size affected;

iii. the Tribunal concluded that serious and irreversible harm would be occasioned to Blanding’s turtle arising from road mortality without any evidence as to the current level of vehicular traffic on the Project site or any evidences as to the degree of increase in vehicular traffic arising from the Project;

iv. the Tribunal failed to give sufficient weight to the existence of the ESA permit, the conditions attached to that permit, the obligation of the MNR to monitor and enforce the permit and the fact that the Renewable Energy Approval expressly required Ostrander to comply with the ESA permit;

v. the Tribunal failed to give a proper opportunity to the parties to address the issue of the appropriate remedy and thereby violated the principles of natural justice and procedural fairness;

vi. the Tribunal erred in finding that it was not in a position to alter the decision of the Director, or to substitute its opinion for that of the Director.

As a result, the proponent’s appeal was allowed and the Tribunal's decision to revoke the REA was set aside.

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