Former environment minister Ruth Grier dismayed by Duntroon Quarry decision

Dangerous precedent disregards Niagara Escarpment Plan

Letter to Chairman and Members, Niagara Escarpment Commission June 20 2012

I write to express my dismay with the Joint Board decision of June 18, 2012 (Walker Aggregates Inc.) and my concern about the impact that the majority decision may have on the future of Escarpment protection.

While Board decisions aren’t binding on future Boards this one does set a very dangerous precedent that opens the door to rampant substitution of irrelevant or erroneous laws, regulations and policies in place of the carefully thought out provisions of the authoritative Niagara Escarpment Planning and Development Act (“NEPDA”) and Niagara Escarpment Plan (“NEP”).  If this decision stands, future development applications are open to minimal review and evaluation, using tests like “appropriate balance”, “appropriate regard” and “consistent with good planning”.

None of these tests apply legally to NEP development applications.

The Walker Aggregates Inc. decision improperly tosses aside the NEP’s clear development control approach, and substitutes Provincial Policy Statement (“PPS”) standards of evaluation.

Member Robert V. Wright in his extraordinary and unprecedented 100-page Dissent Reasons got it right when he said that this decision sets a “perilous course for increased development in the NEP Areas that is not compatible with the natural environment of the Niagara Escarpment and land in its vicinity.”

This observation is critical to the Niagara Escarpment Commission’s very existence.  The majority decision of the two Ontario Municipal Board (“OMB”) members makes clear that is the opinion of the OMB that the NEP is weaker than the PPS, or its terms are too ill-defined to be meaningfully applied. 

The Niagara Escarpment Plan (NEP) is the law of Ontario.    And for almost thirty years Commissioners have effectively upheld that law.

Member Wright addressed explicitly the critical failure of the two OMB members to address the NEP correctly in their majority decision:

“The findings and conclusion of my [OMB] colleagues reject the development control approach, and fail to analyze crucial aspects of this development proposal through the lens of the statutory provisions of the NEPDA [Niagara Escarpment Planning and Development Act] and the policies of the NEP. The practical result is that the specific provisions and policies of the NEPDA and the NEP that protect the natural environment of the Niagara Escarpment and land in its vicinity are either wrongly equated with the PPS [Provincial Policy Statement] requirements, or given little, or no, legal effect, and the more general province-wide policies of the PPS are applied by default.”

 The Niagara Escarpment Commission (NEC), citizens’ and environmental groups, both conservation authorities responsible for two different local watersheds, and the Environmental Commissioner of Ontario all agreed the impacts were either unacceptable or unknown, and all testified in opposition to the Walker Quarry.  This Commission, its staff and an Escarpment Commission Hearing Officer i.e. Member R. Wright, all agree this application must not be allowed under the NEP.

I understand that this will be discussed at a later meeting of the Commission.   There is no doubt that the decision puts the Niagara Escarpment Plan under attack and that the decision needs to be over-turned or the Plan must be overhauled and I urge members to give serious consideration to the options that I am sure staff will outline in their report to your next meeting.   

Yours truly,

Ruth Grier