Watershed News analysis of Walker Aggregates application approval

By George Powell The Watershed News Fall/Winter 2012

On June 18, 2012, the Consolidated Hearings Board (CHB) approved Walker’s application for expansion of their quarry near Duntroon. 

The three-person CHB, comprised of Ontario Municipal Board (OMB) members Messrs Conti and Atcheson, and Environmental Review Tribunal Vice-President, Mr. Wright, approved the quarry by a 2-1 decision subject to conditions. To read the decision: http://www.ert.gov.on.ca/english/decisions/index.htm.

In his decision (page 163) Mr. Wright wrote the following:

 “I am compelled to write dissenting reasons because of the importance of the matters raised in this proceeding.  The basis of the disagreement with the decision of my colleagues rests in the application of the development control approach of the Niagara Escarpment Planning and Development Act (“NEPDA”) and the Niagara Escarpment Plan (“NEP”). 

While my colleagues acknowledge the primacy of the NEPDA and the NEP in regards to the proposed development, on key issues they do not utilize the NEPDA and NEP tests for the threshold NEP amendment and development permit applications, and, instead, they apply the policies of the Provincial Policy Statement (“PPS”) and the provisions of the Planning Act.  The practical result is that … crucial aspects of the proposed development are not analyzed through the protective lens of the statutory provisions of the NEPDA and the policies of the NEP. 

In my view, and contrary to the finding of my colleagues, the NEPDA and the NEP do provide direction and give definitive guidance for the protection of the natural environment of the Niagara Escarpment and land in its vicinity.  The Joint Board must fully apply the NEPDA and NEP tests to the NEP amendment and development permit applications.   

When those tests are brought to bear on those applications, it is clear that this site in the NEP Area, with a large existing quarry across the road, is not the right location for another large quarry and human-made end-lake.  The site is at the center of an intricate array of natural features, functions and systems that are, collectively, a unique ecologic area.” 

THE NIAGARA ESCARPMENT COMMISSION APPEALS WALKER DECISION 

Based on the strong dissenting argument of Mr. Wright, the Niagara Escarpment Commission (NEC) voted on August 16, to apply for leave to appeal the Walker decision to a judicial review board. If the appeal is granted, a provincial court will then rule on whether the CHB made errors in law by failing to apply the NEP correctly.   

While most of the Niagara Escarpment Commission members stood firmly behind this decision, it should be noted that it was a 9 to 3 decision. The Chair and the Grey County municipal member declared a conflict and did not vote. Voting against were Moreen Miller, President of Ontario Stone, Sand and Gravel Association, Shawn Davidson, municipal member for Simcoe County, and John Riley, Nature Conservancy of Canada. One might wonder why Miller and Davidson, a Clearview councillor, did not declare a conflict. Riley’s opposition is disappointing, particularly based on the organization he represents. 

Prior to the vote, Clearview Community Coalition (CCC), the Watershed Trust and others sent letters to the NEC in support of a judicial review.  

To think that the three members of CHB could not agree on the priority of legislation to be used in testing the hearing evidence should be of great concern to all of us as a tremendous amount of time and money was spent by the public sector and citizen’s groups in order to make responsible presentations at the hearings. 

The Watershed Trust gained considerable experience participating in this hearing and as a result has plans for action in the following areas:

* The Provincially Significant Rob Roy Wetland Complex consists of a series of smaller interconnected wetlands. The Watershed Trust has recommended to NEC that the entire complex be included in the NEP when it is updated in 2015. 

* For the most part, issues raised by various commenting agencies such as the Ministry of Natural Resources (MNR), Ministry of the Environment (MOE), Conservation Authorities and local governments, are raised prior to the hearing. However, their attendance at the hearing was minimal. As a result, they were not privy to the expert testimony regarding natural heritage and hydrology. This is particularly problematic for the MOE and MNR because they play a continuing role in the quarry operating license and the Adaptive Management Plan (AMP). 

The AMP will require a very detailed monitoring program with various triggers set up to provide an action plan should negative impacts occur. 

* Provision of guarantees for the perpetual care of the site were not discussed in any detail and the financing and administration of this important aspect of the quarry closure process needs to be addressed by the MNR and Township of Clearview. It is not clear how or if the public will be involved.  

* Presently the MNR is responsible for not only Ontario’s natural heritage features and its biodiversity such as wetlands, woodlands and species at risk, but also, the NEPDA and the Aggregate Resources Act (ARA). These latter two should be moved out of MNR, NEPDA back to the MOE and ARA to the Ministry of Northern Development and Mines.

* Intervenor funding assistance should be provided. The Walker hearing sat for 152 days, over a hundred days more than originally scheduled and the public citizen’s groups had to bear burdensome costs.

The Watershed News is published by Blue Mountain Waterfront Trust Foundation