Read letter from Fogler, Rubinoff, LLP: Based on our review of this matter we have concluded that (1) there is no legal basis for the Province’s refusal to apply provincial environmental laws; and (2) that as provincial environmental laws apply any destruction of endangered or threatened species habitat at Ostrander point without a permit is illegal under the provincial ESA.
Places endangered species of Ostrander Point in jeopardy
Picton, ON / September 14, 2011- The Ontario government has suspended application of its environmental laws to a globally recognized Important Bird Area at Ostrander Point, Prince Edward County. That is the legal opinion obtained from a leading Canadian environmental lawyer and announced today at a news conference in Prince Edward County by the Prince Edward County South Shore Conservancy.
The legal opinion states “there is no legal basis for the Province’s refusal to apply provincial environmental laws at Ostrander Point”. Ostrander Point is home to millions of migrating birds and a significant number of endangered species.
Gilead Power Corporation has proposed building an industrial wind development at Ostrander Point. The controversial project is being strongly criticized locally and internationally by naturalists, bird experts and ecologists. The Gilead proposal includes an application under the Endangered Species Act to “kill, harm and harass endangered species and destroy habitat” of the rare Blanding’s Turtle and the Whip-poor-will. No approvals have been granted for this project.
However, without any advance public notice or consultation, contractors hired by Defence Construction Canada (DCC) suddenly commenced clearing large swaths of wildlife habitat last week at Ostrander Point looking for unexploded ordnance from the 1950’s. The site had been used by the Royal Canadian Air Force.
According to DCC documentation, the unapproved Gilead industrial wind development proposal prompted DCC actions; although, the site had previously been cleared of unexploded ordnances in the 1960’s.
The Ontario government has repeatedly stated no work at Ostrander Point would take place until proper review and approvals are given. It now claims however that provincial environmental protection laws do not apply to federal activities on provincial crown land. The South Shore Conservancy legal opinion states that the destruction of endangered or threatened species habitat is prohibited under the Ontario Endangered Species Act. The result of the Province’s position is that the endangered and threatened species of Ostrander Point are not receiving environmental protection. Ontario’s refusal to apply its environmental laws at Ostrander Point has serious implications for other provincially owned lands including Algonquin Park.
Ironically, last week Premier Dalton McGuinty published a letter to the editor of The Wellington Times in Prince Edward County in relation to the Ostrander Point project in which he states, “We have a responsibility to protect our wildlife, and are doing so through the Endangered Species Act… Each renewable project must comply with key environmental rules under the Renewable Energy Approval regulation process…” Despite this public assertion by Mr. McGuinty the endangered species at Ostrander Point have not been protected under the Endangered Species Act.
The South Shore Conservancy called on the Province to:
(i) apply its environmental laws, particularly the Endangered Species Act, (ii) order the full repair and restoration of Ostrander Point, (iii) appoint a task force of independent experts to oversee remediation and make recommendations for the future protection of Ostrander Point and the South Shore Important Bird Area, and (iv) declare an immediate moratorium on any further work at Ostrander Point.
While a full environmental assessment of the damage done at Ostrander Point this past week has yet to be made, it is clear that habitat has been destroyed and endangered species such as the Blanding’s Turtle and the Whip-poor-will may have already been killed, harmed and harassed without a permit.
The South Shore Conservancy was established in 2001. It is committed to protecting the flora, fauna and habitats encompassed by the South Shore Important Bird Area including species at risk, both breeding and migratory.
Documents will be available online at www.southshoreconservancy.wordpress.com