NEC files application for judicial review of Walker decision

Errors in law jeopardize future of Niagara Escaprment Plan

Clearview Community Coalition newsletter November 19 2012

The Niagara Escarpment Commission’s (NEC) application for judicial review (JR) of the Walker decision was filed with Divisional Court this past week.  The NEC cited four key errors in law made by the OMB members in their majority decision issued in June 2012:

1.  Contrary to the NEPDA and the NEP, the PPS was applied in substitution for key provisions of the NEP.

2.  The majority either refused to interpret or erred in its interpretation of key terms in the NEPDA and NEP, e.g. “maintain and enhance” and “unique ecologic areas”.  They failed to find that these terms require a higher standard of protection of the natural environment than the policies of the PPS.

3.  Contrary to both the NEP and the PPS the majority accepted the “net gain” approach of the applicant, whereby a part of a significant woodland was to be destroyed and replaced with new trees planted elsewhere.

4.   Contrary to both the Consolidated Hearings Act (CHA) and the NEPDA, the joint board did not require Walker to submit a final draft Adaptive Management Plan (AMP) and improperly delegated the final decision to the MNR, thereby depriving the NEC and other parties of an opportunity to comment.  The majority failed to meet its obligations under the CHA to make a final determination on all issues before the Board. 

The NEC did not take the decision to proceed to a JR lightly.  They voted to seek the JR after several discussions with their lawyers, after which they concluded that errors in law had been made and the future of the NEP and NEPDA are at stake.  In the face of relentless attempts, by Walker, their employees, and two of the NEC Commissioners, one of whom is the representative from Simcoe Cty/Clearview Twp, to have the NEC reverse its decision, the NEC remained committed to seeking the JR.

Over the past couple of months, the CCC board has considered our options by consulting David Donnelly (the lawyer who represented us at the hearing) and by speaking with lawyers who have experience with judicial reviews.  CCC concluded that it is important for us, as the community group, to participate in this important next step.   We have retained John Laskin to represent us; he is a highly respected senior litigator from Torys with experience in JR applications involving environmental matters.   His colleague, CCC member, Bill Estey has generously volunteered to assist, and likewise David Donnelly has volunteered to assist as needed.  We are confident that CCC is in good hands.

Now that the NEC has filed, the parties who wish to be involved in the JR will indicate their intent.   There will be negotiations among the lawyers both to determine timelines and to decide on the documents, from the hearing, that will form the record.  The application will culminate in an oral hearing before three judges, will likely be a full day, and is expected to take place in Toronto.   The argument before the panel of judges is ordinarily based entirely on evidence submitted in writing, and will include written evidence through affidavits, documents on record, and transcripts of any witness examinations or cross examinations conducted by the parties.  Each party will submit written legal argument in the form of a factum.   Depending on the complexity of the case the entire process can take from three months to a year, or more, to complete.     

1.  The majority decision to approve the Walker Quarry is upheld.

2.  The majority decision is quashed and the case is remitted to the same hearing panel or to a new hearing panel to decide the case based on the correct principles of law.

3.  Parties have the right to appeal the Divisional Court decision.

4.  If the case is remitted to a new hearing, it would be a more narrowly scoped hearing than the previous hearing. 

5.   If a new hearing is ordered, the hearing panel could:

a)  turn the quarry down, or

b) approve the quarry, with conditions, based on the correct principles of law, presumably stricter conditions than the current approval.   

Walker Industries has made application to the MNR to amend their license to permit the extraction of an additional 600,000 tonnes.  In combination with their current supply of aggregate this would provide the company with approximately one more year of operation.

As we proceed to the JR, Walker has taken steps to shore up its municipal support.  Both Clearview Twp. and Simcoe Cty councils have passed resolutions of continued support for Walker.  Neither of the Settlement Agreements oblige the municipalities to take part in the JR, and fortunately, councillors Thom Paterson, Clearview, and Rob Keffer, Simcoe insist that any direction from Council to do so must be debated in public.

Clearview Twp. forwarded a letter to other local municipal councils requesting a like motion of support for the Walker quarry application.  The Town of Collingwood passed a motion of support, but the Town of the Blue Mountains wisely declined to issue such a letter.  The Blue Mountain Watershed Trust has written a letter to the Town of Collingwood and to the papers expressing their disapproval of the Town of Collingwood’s resolution.

In October, CCC appeared before Clearview Twp Council to request that they not respond in opposition to the NEC application to seek a JR on the basis that the majority decision, if upheld, could be precedent setting for future development on the Niagara Escarpment.

CCC remains disappointed that our local municipalities have not acknowledged the higher standard of protection required by the NEP and the NEPDA, plans that are an integral part of the Clearview and Simcoe Official Plans and are the senior documents.  Our municipalities appear to view the Niagara Escarpment as an aggregate resource that can provide short term economic gain, an economic gain that, on balance, is questionable, while destruction is certain.  Municipalities to the south, Caledon, Burlington and Halton, have shown long term vision by opposing quarry applications on and adjacent to the Niagara Escarpment, and those applications were turned down at the OMB and the CHB.

SO ……. we battle on.