Vol. 28, No. 5, 2013
found that appellant Prince Edward County Field Naturalists haddemonstrated, on a balance of probabilities, that the project willcause serious and irreversible harm to Blanding’s turtles, athreatened species in Ontario. It therefore held that the projectshould not be allowed to proceed as proposed.
Prince Edward County Field Naturalists, one of two appellants,challenged the project on environmental grounds, drawing thetribunal’s attention to the fact that the project site is located withina globally significant Important Bird Area; acts as a migratory corridor for birds, bats, and butterflies; and offers suitable habitatto threatened species such as the Blanding’s turtles and Whip-poor-will. The tribunal also heard evidence regarding the site being analva—a rare and globally imperiled ecosystem that supports a richdiversity of flora and fauna. The naturalists’ appeal thereforeconcerned the second branch of the test under
of the EPA. Thus the onus was on the organization to prove thatengaging in the renewable energy project in accordance with theREA will cause serious and irreversible harm to plant life, animallife or the natural environment.Alliance to Protect Prince Edward County appealed theministry’s decision based on human health grounds, taking theposition that engaging in the project in accordance with the REAwill cause serious harm to human health—the first branch of thetest. The tribunal found, however, that the alliance had failed todraw a causal link between the proposed project and the healthconcerns raised. It therefore dismissed the alliance’s appeal.
seou nd eveble hm to Blndng’ tutle
Prince Edward County Field Naturalists’ successful appeal wasbased on the tribunal’s finding that the project will cause seriousand irreversible harm to Blanding’s turtles. This was a high legalthreshold to meet, the scope of which had not been clearly definedby the tribunal in earlier cases. In this appeal, the tribunal acceptedthe opinion evidence advanced by the naturalists’ experts that thecreation of 5.4 km of access roads at the project site will bringabout increased road mortality, the greatest anthropogenic threatto Blanding’s turtles, as well as increased poaching and predation.In coming to its decision, the tribunal took into considerationand weighed the following factors: the conservation status of thespecies; the species habitat on the site and in the area; vulnerability of the population; the type and extent of harm caused by theproject; vulnerability of the species to this type and extent of harmdue to its life history traits; the mitigation measures included in theREA; and the demonstrated effectiveness of the mitigationmeasures (para. 362).The tribunal made the explicit finding that when it is dealingwith a species at risk, “a decline in the population or habitat of thespecies, or the alteration or destruction of such feature, willgenerally be factors with considerable weight when considering‘serious and irreversible harm’ and applying the test” (para. 208).Of note is that prior to the issuance of the REA by the ministry,proponent Ostrander Point GP Inc. had been granted an “overallbenefit permit” under the
Endangered Species Act
which allows apermit holder to kill, harm, harass or capture a species otherwiseprotected under the act, such as the Blanding’s turtle. The tribunalheld that the ESA process is “completely separate from the [REA]process” (para. 265) due to the “difference in scale.” Under the ESAscheme, a permit is granted if it has been determined by theMinistry of Natural Resources that the species ‘as a whole inOntario’ will have an overall benefit; in contrast, the tribunaldetermined that it was required to consider the status of theBlanding’s turtle population that occupies the project site and thesurrounding landscape (para. 343).Both the Ministry of the Environment and Ostrander Point GPInc. have filed appeals to the Divisional Court.
renewble enegy poject
The tribunal’s decision has broad implications for proponents of all renewable energy projects, not just wind projects. It is now clear that the tribunal will give significant weight to the presenceof species at risk and their habitat when hearing an REA appealand it will explore proposed mitigation measures for theireffectiveness. The tribunal also made clear that it will consider allappeals on a case-by-case basis.
Eric Gillespie and the other lawyers at his Toronto-based firm practice primarily in the environmental and land use planning area. Natalie Smith is a second-year associate lawyer. The firmrepresented Prince Edward County Field Naturalists in this matter.Readers with suggestions for future articles or who wish tocontribute their comments are encouraged to contact Eric at any time. He can be reached at email@example.com.
Social MediaDesign workshop tools
By Robert Voigt, contributing editor
his column uses a broad definition of technology:choosing to use tools to make or modify knowledge andtechniques to achieve goals. In this way, I am able tohighlight two simple technologies that fit within existingplanning practices neither of which requires investment in new computer software or hardware. Their use for community/urbandesign work is described as this has been my experience: itaddresses common barriers to effective communication such asassumptions as to what constitutes design; fluency with readingvarious types of drawings; and the ability to envision physicalchanges in the built environment.
When working with the public on site design in a workshop orcharrette format, for example, there are a few key challenges toovercome to encourage dialog and creativity. These includingdeveloping an understanding of the site context, built form andsurroundings; moving beyond individual points of view, toward acollective vision (while not dismissing or superseding one for theother); creating a sense of collaboration and problem solving; andheightening awareness of site characteristics.To help facilitate I developed a process called the Puzzling Sitethat adapts the use of aerial photos. Instead of a traditionalapproach that only provides a static image of a study area, a very