AWARE Simcoe fears massive costs award will chill public participation
Council of Canadians’ Maude Barlow condemns judge’s decision as “perversion of justice”
AWARE Simcoe news release
A massive costs award against a watchdog environmental group could have an adverse impact on citizens’ ability to protect their communities and natural heritage, AWARE Simcoe chair Don Morgan says.
“We are very disappointed by Justice Margaret Eberhard’s decision to award a total of $32,000 in legal costs against us,” Morgan said today.
“In an age when governments are cutting back on monitoring and enforcing their own rules, the burden of stepping up is increasingly falling on citizens. But this kind of decision makes that task much harder.”
AWARE Simcoe is consulting with other environmental groups and has already received a message of support from Maude Barlow, national chairperson for The Council of Canadians.
“The regulatory system in Ontario is a rubber-stamp process favouring wealthy developers. Forcing community groups to pay court costs for opposing these developers is a perversion of justice,” Barlow said.
Justice Eberhard has fixed costs at $27,000 to Tecumseth Estates and $5,000 to Simcoe County.
The AWARE Simcoe board met Thursday evening to consider the November 10 Superior Court ruling.
“We received advice from our lawyer, and we consulted with members of the local group that came together to protect the Beeton Woods, and at whose request we became engaged in the legal process,” Morgan said.
“We have a number of options and we have to take time to decide how best to proceed,” Morgan said, noting that the Beeton group has been putting together documentation that will be part of a request to the Ontario Ombudsman for an investigation.
Morgan added that the AWARE board took issue with a number of points made by the judge. “To boil our complaint against the County of Simcoe down to the issue of two councillors having voted when they had not been present to hear the evidence is absurd, serious though that is,” he said, noting that the judge called this mistake ‘inept’ and wrote that she had considered ordering the county to pay a portion of the developer’s costs because of its ‘floundering.’
The AWARE board also took issue with the judge’s portrayal of Tecumseth Estates as an exemplary corporate citizen, as the history of the company’s behaviour on that land is problematic, particularly with regard to the illegal cutting of endangered butternut trees. However, “our primary complaint in this action was not with the developer,” Morgan said, explaining that for the purposes of the injunction hearing AWARE Simcoe focused on the flaws in the process.
The judge critized AWARE Simcoe for not having brought forward expert evidence on the importance of “the trees.”
“The environmental evidence exists and the approvals process would have been far more rigorous had the Nottawasaga Valley Conservation Authority been informed of the fact that the developer had an open development application on the property he was seeking to clear,” Morgan said.
Tecumseth Estates sought the application as a simple expansion of an agricultural operation.
The Environmental Commissioner of Ontario highlighted this pretext as a major problem in 2011, Morgan said. To quote the ECO report: “Natural heritage features are being destroyed as farmlands are being prepped for subdivisions and aggregate operations under the guise of ‘normal farm practices.'”
Morgan said it’s high time the provincial government address this loophole, that the Environmental Commissioner said is allowing developers to circumvent protection of countless woodlands and wetlands across Ontario.
The Beeton Woods are listed as significant woodlands and Environmental Protection 1 and 2 under the Town of New Tecumseth’s Official Plan.
November 10 2015 Eberhard ruling on costs Aware Simcoe v County of Simcoe Costs
Link to chapter in 2010-2011 ECO report Prepping the Land for Development