Grier, Donnelly to ask NEC to seek judicial review of Duntroon decision

Letter to Friends of the Niagara Escarpment July 11 2012

On June 18, 2012 the Joint Board, in a split decision (2-1) approved a massive, new 42-million tonne aggregate quarry for Walker Aggregates Inc. located at the very highest point of the Niagara Escarpment, near Duntroon, Ontario. 

See below, a call for action from Ms Ruth Grier, former M.P.P. and Minister of the Environment in 1990, urging all friends of the Niagara Escarpment to voice their concern with this decision to the Niagara Escarpment Commission (NEC) in advance of its July 19, 2012 meeting. 

At this critical meeting, Ms Grier on behalf of the Clearview Community Coalition (CCC) and Mr. David Donnelly on behalf of Environmental Defence will urge the NEC to consider applying to the Ontario Divisional Court for a judicial review of the Walker decision. 

CCC and Environmental Defence each submitted a letter to the NEC.  Protecting Rural Escarpment Land (PERL) also sent a letter to the NEC calling for the Commission to protect the Escarpment by initiating a review by the Court. 

See template letter below.  Please voice your concern to the NEC by 5:00 p.m. on Friday July 13, 2012, by email toannemarie.bochenek@ontario.ca or fax (905) 873-7452 so that it may be before the NEC at its July 19, 2012 meeting.  

Please cc anne@donnellylaw.ca so that we may track the number of responses.  

Please distribute widely- your support, and that of others, is urgently needed!  

Thank you, Anne Sabourin, MES, JDAssociate, Donnelly Law276 Carlaw Ave. Suite 203Toronto, ON M4M 3L1

 

Chair Scott and Niagara Escarpment Commissioners

Niagara Escarpment Commission

232 Guelph St.

Georgetown, ON  L7G 4B1

Dear Mr. Chair and Niagara Escarpment Commissioners,

Re: Walker Aggregates Inc. Case No. 08-094

Judicial Review of Joint Board Decision Urgently Needed

[I or Insert name of Organization] am/is writing to you to express serious concerns with the Joint Board’s decision to approve the massive Walker quarry on the very highest point of the Niagara Escarpment, an area of the province that has been designated by UNESCO as a World Biosphere Reserve. [I or Insert name of the Organization] urge(s) you to seek a judicial review of the decision given its legal implications.

As you may be aware, Joint Board Member Robert Wright wrote a 100-page dissenting opinion and stated that the decision sets a “perilous course for increased development in the [Niagara Escarpment Plan] Areas that is not compatible with the natural environment of the Niagara Escarpment and land in its vicinity”.  Member Wright clearly agreed with the compelling case presented by the Niagara Escarpment Commission, a Party to the hearing.

Mr. Wright, in his dissent, points to fundamental legal errors in the decision to approve the expansion of the quarry. He notes, for instance, that the application did not meet the three part amendment test under the Niagara Escarpment Plan (NEP). The decision also fails to apply the specific provisions and policies of the Niagara Escarpment Planning and Development Act (NEPDA) and the NEP to the development proposal. This means that the NEPDA and the NEP were given little or no legal effect in the decision.

The decision sets a dangerous precedent and effectively nullifies the development control regime established by the NEPDA and the NEP. There is a very real risk that if this decision stands, future development applications may also be subject to similar interpretation.

[I or insert name of Organization ] am/are very concerned that this decision, if implemented, will open the door for increased incompatible development on the Niagara Escarpment and the destruction and removal of natural features, functions and systems on sites identified as unique ecological areas.  

The Niagara Escarpment Commission must act now to protect the unique environment of the Escarpment and defend the laws and policies that serve to protect this irreplaceable landscape.  I/We therefore, urge the Niagara Escarpment Commission to initiate a judicial review of the Joint Board’s decision. 

Yours truly,

[Name of Organization or Individual]

 

Dear Friend of the Niagara Escarpment,

Re:  Call to the Niagara Escarpment Commission to Seek a Review of the Walker 

Aggregates Inc. Decision # 08-094 

As a fellow supporter of the protection of the Niagara Escarpment, green development 

and environmentally appropriate development, please consider the important news below 

concerning a recent decision of the Joint Board on a proposed massive new quarry 

located on the Niagara Escarpment, which is the largest and most prominent natural 

corridor in south-central Ontario.

I write to express my serious concerns with the Joint Board decision to approve the 

Walker Aggregates Inc. quarry near Duntroon in Simcoe County.  I urge you to write to 

the Niagara Escarpment Commission (NEC) asking them to seek a judicial review of the 

decision in the Ontario Divisional Court. 

The NEC will be considering this case at their monthly meeting on July 19, 2012. It is 

vital that environmental groups and individuals express their concerns to the Commission 

and recommend that the Joint Board decision be judicially reviewed given the legal errors 

that the board made in interpreting the Niagara Escarpment Plan (NEP) and the Niagara 

Escarpment Planning and Development Act (NEPDA). The decision undermines the 

development control regime established under the NEDPA and disregards the laws and 

policies that govern the NEP Area. Furthermore, the decision, if implemented, will have 

significant adverse impacts on the Niagara Escarpment, a special area of the province that 

has been recognized as such by the Ontario government since the 1960s and designated a 

World Biosphere by the United Nations Educational, Scientific and Cultural Organization 

(UNESCO) in 1990. 

The Joint Board’s Decision 

The Joint Board (consisting of two members of the Ontario Municipal Board and one 

member of the Environmental Review Tribunal) approved the new quarry over the

objections of the NEC, two Conservation Authorities, a land trust, local citizens, 

environmental groups and the Environmental Commissioner of Ontario. However, it is 

critically important to note that the decision was not unanimous –  the two Ontario 

Municipal Board members approved the new quarry subject to conditions, while the 

Environmental Review Tribunal member, Mr. Robert Wright, wrote an unprecedented 

100-page dissenting opinion. Mr. Wright states that the decision by the majority sets a 

“perilous course for increased development in the NEP Area that is not compatible with 

the natural environment of the Niagara Escarpment and land in its vicinity.” The full text 

of the Board’s decision is available at the Environment and Lands Tribunal Ontario 

website at http://www.ert.gov.on.ca/files/201206/00000300-BPQ1IK6FIN0026-

CFI4BD7E8HO026.pdf

Legal Errors Made by the Joint Board  

In his dissent, Mr. Wright focuses on serious legal errors made by his two colleagues in 

their decision to approve the quarry. He notes, for example that the application meets 

only one requirement of the “three part” test under the NEPDA’s plan amendment 

provision. 

Mr. Wright is also critical of his colleagues’ decision for failing to “analyze crucial 

aspects of [the] development proposal through the lens of the statutory provisions and 

polices 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… given little, or no, legal effect…”. 

These legal errors set a dangerous precedent and effectively nullify the development 

control regime which is the cornerstone of the NEDPA and the NEP. There is a very real 

risk that if this decision stands, future development applications may also be subject to 

similar interpretation. In that case, the NEPDA and the NEP would be incorrectly applied 

in assessing these applications. Consequently, it is essential that this Joint Board decision 

be judicially reviewed. 

Adverse Environmental Impacts 

According to Mr. Wright, the proposed site for the new quarry is at the “center of an 

intricate array of natural features, functions and systems that are, collectively, a unique 

ecologic area.” Mr. Wright notes that the NEC has accurately described this area as a

“strong functioning Natural Heritage System.”  However, the proposed new quarry  will 

result in these “natural features, functions and systems being permanently removed or 

drastically altered.”  The Joint Board’s decision would, therefore, result in substantial 

ecological loss for the Niagara Escarpment.

Conclusion

The Joint Board’s decision to approve the massive new Walker Aggregates Inc. quarry 

sets an extremely disturbing precedent and seriously risks opening the door to 

substantially increased development all along the Niagara Escarpment. The decision

permits the destruction and removal of natural features, functions and systems in an area 

that has been identified as a unique ecological area within the Niagara Escarpment. The 

Joint Board also made a number of fundamental legal errors in its decision which 

effectively nullify the development control regime established under the NEPDA and 

NEP to protect the natural environment of the Niagara Escarpment and land in its 

vicinity.

Therefore, I strongly urge you to write to the Niagara Escarpment Commission prior to 

its July 19, 2012 meeting and recommend that the Commission seeks a judicial review 

the Joint Board’s decision. 

Yours truly

Ruth Grier