Blanding’s Turtle Litigation Update

In February I wrote here on the issue of green energy vs. conservation and how the Blanding’s turtle, a vulnerable and endangered species, was holding up the development of a wind farm in Ontario.

After confirming that wind had trumped turtle in the latest edition of this battle, I also added that Prince Edward County Field Naturalists (“PECFN”) were considering seeking leave to appeal the decision.

Well, PECFN has done just that and, in a decision dated March 25, 2014, the Ontario Court of Appeal granted a stay of the Divisional Court’s order to allow the wind farm to proceed, until a decision on the appeal has been made.

In applying for a stay, a party must show that:

(a) it has raised, or will raise if leave is granted, a serious issue for consideration on appeal;

(b) it will suffer irreparable harm if a stay is not granted; and

(c) the balance of convenience favours such an order.

In this case, the Court of Appeal found that:

– there was an argument to be made that is sufficiently serious to meet the first test;

– agreed that once a habitat is destroyed, it is destroyed – and the species sought to be protected is vulnerable and endangered; and

– that given the conclusion reached on the prospect of irreparable harm, the balance of convenience favoured the stay.

Until a decision is made by the Court of Appeal on the merits of the appeal itself, the wind farm will have to wait.

By James Early.