author: Conrad Beaubien
The light of the morning brushes the red-ochre brick of the Demorestville Town Hall. The historically designated building was once a seat of governance in the former independent townships that today make up the Municipality of Prince Edward County. The polished maple floor of the hall is an artefact from the early sawmills and shipyards of the region. Within the now empty space, neatly stacked chairs and tables silently wait.
For forty days late last spring, the Demorestville hall was a cluster of adrenalin. Nearby James Street and Friendship Lane were chock-a-block with cars and trucks; inside was standing-room-only.
The room was laid out in courtroom fashion. At the judges’ bench, lawyers Heather Gibbs and Robert Wright presided. At issue was a challenge by local citizens’ groups to the Ontario government’s decision on the 20th of December, 2012, granting approval to a privately owned company, Gilead Power, to install nine, forty-storey high, industrial wind turbines in Prince Edward County at Ostrander Point.
In front of the fold-up vinyl-table-cum-judges’ bench sat a bank of lawyers from McCarthy Tétrault, one of the country’s largest law firms, representing Gilead Power.
Shoulder-to-shoulder with the Gilead legal team sat two additional lawyers, both employees of Ontario’s Ministry of the Environment (MOE). They were there to defend their Ministry’s approval of Gilead’s proposed industrial wind complex.
On the opposite side of the hall were lawyers Natalie Smith and Eric Gillespie, representing the Prince Edward County Field Naturalists (PECFN). The naturalists were challenging the MOE’s approval of wind turbine installations at Ostrander Point in the belief that the wind turbines will cause irreversible harm to habitat and wildlife.
Gillespie was also retained by the Association to Protect Prince Edward County (APPEC) who were arguing against the government’s approval of the turbines on the basis of their effects on human health.
The procedure at hand that day was the Environmental Review Tribunal, a legal mechanism put in place by the Ontario government to allow for public objection.
The PECFN group are a soft spoken, out-of-doors bunch; most are also birding enthusiasts. Of their approximately fifty members, the whirl force core taking on the simultaneous challenge to the provincial government and ‘big wind’ is mainly driven by a small group of women. Some working, some retired, some grandmothers, the women have adopted the ‘elders’ role, giving voice to the voiceless:
their cry is a wake-up call to all of us.
Ostrander Point is a large, remote and relatively untouched beachhead jutting out into Lake Ontario on the County’s south shore. The shoreline is a globally recognized Important Bird Area (IBA), lying in the flight path of one of North America’s most important migratory routes. Ostrander Point is owned by the people of Ontario. It is Crown Land.
Cheryl Anderson is a key member in the PECFN legal challenge. “When they [Gilead Power] started doing work at Ostrander, we wrote to the minister. We assumed that the role of the MNR was to defend this area.What they did instead was to issue a permit to Gilead [Power] to destroy habitat for the Whip-poor-will and the Blanding’s turtle specifically. It’s called a ‘kill, harm and harass’ permit because in the Species at Risk legislation, if those activities are going to take place you have to have a permit,” she adds.
Anderson and her peers are in favour of renewable energy. But when turbines were designated for the fragile habitat and eco-systems of Ostrander Point, many became alarmed that there were few guidelines, even fewer chances for citizens or impacted local government to have their say. Nor were there stop-measures in place to hold in check industrial wind development on Ontario’s Crown Lands. Not only has the province’s Green Energy Act opened up Crown Land for renewable energy projects, the Act has also taken away the power of municipalities to accept or reject such projects. The wind business has joined the list of industries granted exclusion from the provisions of the Endangered Species Act.
Myrna Wood is also a member of PECFN. Living in the County for two decades, she is a founding member of the group and has been key to initiating the annual birding festival, the Point Edward Bird Observatory as well as the designation of the IBA. “There are many mainstream environmental organizations that look at us and say, ‘who are these people anyway…they call themselves naturalists and they are against turbines?’ Many have not looked deeply into the issue. It’s one thing to propose turbines on farm fields – ‘brown fields’ already removed from nature. The corporations have jumped on our Crown Lands and the government response is, ‘We’re for green energy; use them [the Crown Lands]’. They haven’t bothered to step back and look at the environmental consequences,” she comments.
Cheryl Anderson adds, “We had Birdlife International write letters – the Royal Society for the Protection of Birds; we had the Audubon Society in the U.S.; we received a letter from the David Suzuki Foundation – all of whom would normally be in favour of wind power. Their message emphasizes that for renewable energy to be truly green, it must not destroy wildlife habitat. In spite of all of this [supportive evidence], and the fact that Environment Canada, which has rules and regulations about where turbines should be sited, said that this is the worst place for wind turbines, the Province carries on. How does this play out?” Anderson asks. “We’re getting something stuffed down our throats whether we want it or not.”
“I grew up in Brockville and worked as a research technologist at the University of Guelph for 28 years before retiring to the County. This island is amazing. It sticks out into Lake Ontario like a funnel. Migrating birds want to take the shortest route over water, so they congregate towards this eastern end of the lake. Heading north to the Boreal forests in the springtime, they wait around Watertown, New York. When it comes time to cross the 100 kilometres of open water, they look for the closest jut of land and we’re it. They arrive along the south shore by the millions,” shares Anderson.
The south shore is a robust, limestone shelf-like affair. There are wetlands and grand tracts of alvar, an eco-system of thin soil above limestone. Alvars are globally unique, appearing only in Scandinavia and the Great Lakes region. Alvars flood in spring, are dry in summer and host plants and insects distinct to this environment. Ontario’s Significant Wildlife Habitat Guide lists all alvars in this area to be “provincially rare”. The south shore is also home to abandoned pasture, now meadowlands offering sanctuary.
“We get birds from the Atlantic and Mississippi flyways that venture here. Traverse Woods has ironwood, soft maple, mixed bush. When we go down there in the spring we see little warblers feeding like crazy,” Anderson describes. “They have just come over the lake and seem to be falling out of the trees. We witnessed sixteen species of warblers in one morning last spring,” says Anderson.
The south shore runs from Prince Edward Point in the east, which is a National Wildlife Area owned by the Federal government through the Canadian Wildlife Service. It continues west to Point Petre, a distance of about 26 kilometres. The 324 hectare eco-system of Ostrander Point, important to endangered species like the Milk snake, the Western Chorus frog and the Blanding’s turtle, lies smack in the middle of the shoreline.
“Within the Provincial Wildlife Area next to Point Petre, Ducks Unlimited has created a marsh whicis home to a huge heronry,” Anderson recounts, mimicking the flapping of extended wings. “To watch the young herons practice like this…up there balancing on the edge of the nest…is quite something to see,” she laughs.
“No one on any level has thought about how this policy of industrial wind turbines was going to be implemented on the ground,” Myrna Wood continues. “I have all the studies that have been done on the south shore – the phenomena of migration, the place of Ostrander Point in the bigger picture.What about the herons, the bats, the Monarch butterflies? If they don’t have this place…where are they going to go? We have developed most of the shoreline of Lake Ontario. We have to save the few precious habitats that remain.We cannot survive without the bio-diversity…People tend to be apathetic because they don’t believe they can fight city hall. But you can!”Wood asserts.
Sheena Kennedy, a retired teacher trained in botany and zoology has recently taken on the role of treasurer for the field naturalists. “Sitting through the tribunal and watching how Gilead and MOE conducted themselves – using what appeared to be manipulation and stall tactics – drawing this trial out to the point where we could no longer afford it – by Day two or three, we said ‘it ain’t gonna happen that way’ and that’s when we dug our heels in as a group and said whatever the cost of this is, we need to see it through. That has been our mantra ever since.”
Like fellow citizens’ groups in the County, PECFN are determined in their fundraising efforts. Costs of the challenge are anticipated to be in the range of $250,000. So far they have raised half that amount. “Most of our expert witnesses for the tribunal only asked for gas costs,” Kennedy comments. “They were professional, well educated in their fields and extremely generous with their expertise. They connected us with their worlds of study which has opened us to global networking.”
At the wrap-up at Demorestville, overseers Gibbs and White reconvened in the offices of the tribunal at Queen’s Park in Toronto. On Wednesday, July 3, 2013 they released their ruling: the habitat of the endangered Blanding’s turtle, a creature that takes 25 years to reproduce, would be irreversibly harmed by the Gilead project. On the basis of evidence, the tribunal decided against Gilead Power and revoked the MOE issued permit.
“It is the first time in North America that anything like this has been overturned on environmental grounds,” states Anderson. “I remember during it all, one day being at Petticoat Point which is right at the edge of Ostrander Point. As part of the tribunal, they wanted everybody to see what Ostrander was all about,” she recounts. “The whole court – lawyers with inappropriate gear – trooped down there. We lent them boots. The rep from Gilead led us on a merry chase…he was lost. We weren’t even on Ostrander Point or anywhere near where they wanted to put wind turbines. I needed to confirm where we were. I had this old GPS unit but the sunlight was glaring on its face so I pulled under the shade of a tree where I could see it. At that very moment I heard that wing-beat and then I spotted it: An eagle flew over my head. It was magical, unmistakable,
Although the decision was a landmark, the field naturalists understood that ‘big wind’ had investors at stake and wouldn’t easily accept the tribunal’s ruling. Turns out neither would the MOE. Eight weeks after the decision, Ontario’s Ministry Of Environment stated that they would continue their support of Gilead Power, joining them in an appeal to the higher courts. Gilead Power also threatened to demand legal costs.
The four-day appeal, presided over by three judges of the Divisional Courts at Osgoode Hall, Toronto
concluded in late January of this year. On Thursday February 20th, 2014 the judges declared that legal
errors were made in the tribunal process and turned the decision in favour of Gilead Power.
Sheena Kennedy remarks, “I was always naively of the belief that governments worked for the people. I
understand that there has to be a balance between industry and the environment. Now I am not so sure. I believe the odds are heavily weighted towards industry. We still remain as winners of that first
Myrna Wood concurs “This is more than a contest about the placement of wind turbines and protecting threatened environments at our doorstep. This is about use of Crown Lands – property owned by all of the citizens of Ontario – being exploited by private business with the support of our government. The imperilled Ostrander alvar site is in the centre of the last undeveloped wildlife habitat on the northern shore of Lake Ontario. We need to think about that very seriously.”
“I would say it has been one of the most difficult years of my life,” Cheryl Anderson tells me. “Yet, I remain in the belief that we channel anger into positive action aimed toward solutions.”
“The ecosystem is what pulls me,” adds Kennedy. “I am probably more appreciative that we could lose a lot of this very quickly. People believe that Crown Land belongs to the public. It doesn’t. The right to use it maybe… We have to remove our ‘head in the sand’ outlook before the wake-up call is too late.”
County Road 13 winds its way through the Township of South Marysburgh. It passes Little Bluff Conservation Area, turns at Halfmoon Point and eventually becomes the gravelled Long Point Road.
It follows the shoreline of the Prince Edward Point Wildlife Area to arrive at land’s end where you can leave your car by the Bird Observatory. It is quiet now at the nearby abandoned Point Traverse Lighthouse – quieter than most times here. Out in the reaches drifts Waupoos Island. To the east I can see the smudge of the False Duck Islands of the Timber Island Provincial Nature Reserve. Beyond lie Amherst Island where ancestral family rests, Wolfe and Howe Islands neighbouring Kingston. The snow is sugaring in mid-day light. In the sweet of the ice-leaving waters, the sap of the nearby woods, the ether on the endless space , calm has found me. Then from Behind I hear the wingbeat. And I see it. Spring is now: where eagles fly.