Report on the ERT Hearing on the White Pines Wind
November 2, 2015
by Henri Garand, APPEC
If Day One is any indication, the White Pines appeal will be as contentious as Ostrander Point’s. Even before opening statements the Environmental Review Tribunal (ERT) consisting of co-chairs Marcia Valiante and Hugh Wilkins, heard motions that may require an adjournment of the proceedings.
Eric Gillespie, counsel for APPEC, asked the ERT to summon two staff members of the Ministry of Natural Resources and Forestry (MNRF) and to order production of all materials related to White Pines permits approved under the Endangered Species Act (ESA). The request derived from similar disclosures and witnesses in the Ostrander Point appeal that have raised doubts about the integrity of the MNRF’s process for assessing risk to endangered species like the Blanding’s turtle.
Gillespie believes that testimony is relevant and necessary from Joe Crowley, the MNRF’s expert on reptiles and turtles, and Kathleen Pitt, the MNRF manager who oversaw permitting for White Pines. He argued that an appellant has a right to all the related documents on the basic principles of justness and fairness.
Four other lawyers challenged the motion: Sylvia Davis and Andrew Weretelnyck representing the Ministry of Environment and Climate Change (MOECC), Sunny Zhai for MNRF, and Patrick Duffy for approval holder/wind developer WPD. They questioned the timing of the motion at this stage, the broad scope of the materials and the difficulty of timely production, the focus of the materials on ESA permits rather the Renewal Energy Approval (REA) under appeal, and the overall need for such evidence, some of it dealing with Ostrander Point, when APPEC was calling its own expert witnesses. Duffy went so far as to accuse Gillespie of “bad faith” in using a delaying tactic.
In rebuttal, Gillespie pointed out that the ERT had been informed in September about the potential, but the need only became clear and imperative after documents were disclosed at the Ostrander appeal last week. Since much of the White Pines project adjoins Ostrander Point, Blanding’s turtles would also be harmed by White Pines access roads because experts had agreed that the turtles range over “the wetland complexes along the whole south shore and as far as six kilometers inland.” Gillespie therefore wondered how the White Pines ERT could choose not to follow the ruling of the Ostrander Point panel when the situations were so similar.
John Hirsch, the initial appellant of the White Pines REA, supported Gillespie’s motion by asking the ERT to consider why the MNRF, curiously, didn’t require an ESA permit for Blanding’s turtles which would be harmed by the White Pines project.
The hearing concluded with the ERT panel seeking comments on the scope of a production order and the probable timelines for witness preparation. A ruling on the motions will be given when the hearing resumes on November 3 at 10 a.m. in the Essroc Centre, Wellington.