Donnelly Law represented the citizen’s group, Clearview Community Coalition Incorporated (“CCC”), at the 15-month Walker Quarry hearing before the Joint Board.  Donnelly Law will report on the arguments of the parties in this precedent-setting judicial review application of the Niagara Escarpment Commission, challenging the decision of the Joint Board to allow the quarry in Niagara Escarpment Commission v. The Joint Board et al.  For Donnelly Law’s take on the Walker decision, visit: http://donnellylaw.ca/?p=1313 Overview

On June 17, 2012, a majority (2-1) of the three-member Joint Board granted conditional approval to the development of a massive new quarry in the Township of Clearview, Simcoe County, within the Niagara Escarpment Plan area (the “Walker Quarry”) and on the highest point of the Escarpment.   The dissenting member of the Panel, Environmental Review Tribunal (“ERT”) Vice-Chair Robert Wright (the only member of the ERT on the panel), commented that the majority decision “sets a perilous course for increased development” in the Niagara Escarpment Plan (“NEP”) area.

The Niagara Escarpment Commission (“NEC”) agreed.  On August 16, 2012, the NEC Commissioners voted nine to three to seek a judicial review of the Joint Board decision.

Former Minister of the Environment and Member of CCC Ruth Grier commented that “in all my time in government and as an advocate, the Walker decision caused me the greatest concern for the health of the Niagara Escarpment UNESCO Biosphere Reserve.  I commend the commission for their vote to defend the Niagara Escarpment, one of Ontario’s truly unique environmental features.”

On February 28, 2013, the NEC filed its factum with the Ontario Divisional Court.  The NEC’s application for a judicial review focuses on two “significant” errors of law in the Joint Board majority decision:

(1)  Errors in the Test to Allow the Quarry: The NEC alleges that the majority misinterpreted and misapplied the test for making amendments to the Niagara Escarpment Plan, which led the Majority to err in permitting the deforestation of 32.8 hectares of significant woodland as part of its approval of the Walker Quarry.  This issue should be reviewed by the Court on a standard of reasonableness.

(2)  Error in Delegating the Adaptive Management Plan Decision to the Minister of Natural Resources: The NEC alleges that the Majority erred in delegating the finalization and final approval of the Adaptive Management Plan (the “AMP”) to the Minister of Natural Resources.  Briefly, an AMP is a document that determines monitoring requirement and mitigation measures to be implemented by the quarry operator in the event of environmental impacts.  In its decision, the Joint Board directed the Minister to finalize the AMP document and associated third party agreements, while failing to consider whether the Minister has the authority to do so.  This issue should be decided by the Court on a standard of correctness.

The relief sought by the NEC is:

(1)  An order quashing the June 17, 2012 decision of the Joint Board, permitting the conditional expansion of the Walker Quarry, and referring the hearing before a differently constituted panel;

(2)  In the alternative, an order quashing the decision of the Joint Board, and remitting the matter back before the same panel to be decided in accordance with the proper interpretation of the relevant statutes; and

(3)  Other relief as the Honourable Court deems just.

This summary reviews the NEC’s legal arguments.  Paragraph references to the NEC’s arguments are indicated by square parentheses.

 

 (1)   Errors in the Test to Allow the Quarry

The NEC submits that “the Majority of the Joint Board erred in its articulation and application of the tests for amending the NEP to change the designation of the quarry site as an Escarpment Rural Area to a Mineral Resource Extraction Area and for issuing a development permit” [59].  These errors are:

(i)                 Failure to give proper significance to the NEP amendment test;

(ii)               Reversal of the onus;

(iii)              Disregarding Section 2. 7 of the NEP, “New Development Criteria within Wooded Areas”; and

(iv)            Improperly reading-in a “net gain” or ecological compensation approach.

 

The NEC then argues:

In effect, these errors taken together demonstrate that the Majority sidestepped the NEPDA and NEP, and approached the appeal as though it were a regular planning decision under the Planning Act.  The net practical effect of these cumulative errors is that the Majority largely ignored the ‘special legislative significance’ given to the NEP area by the NEP/NEPDA and would permit the removal of 32.8 hectares of provincially significant woodland in what has been designated would [sic.] a World Biosphere Reserve. [60]

These four errors are now considered in turn.

 

(i)           Failure to Give Proper Significance to the NEP Amendment Test

The NEC submits that the Joint Board made “significant errors in its appreciation of the significance and meaning of the three part test” for applications to amend the NEP [61].  Briefly, the NEC alleges that the Joint Board erred in applying the general Provincial Policy Statement (“PPS”) in place of the NEP, the Plan with primacy in the area [75].  The NEC deems these errors significant: “These errors were fundamental to the Board approving the removal of a significant woodland to allow for a quarry in the Niagara Escarpment Plan area” [78].

The three-part test to amend the NEP, e.g. Escarpment Rural Area to Mineral Extraction Area, allows an amendment only if: (1) the amendment is consistent with the purpose and objectives of the NEPDA/NEP; (2) the amendment is justified; and (3) the proponent has discharged the onus of demonstrating that a proposed amendment will meet the purpose and objectives of the NEPDA/NEP and other relevant Provincial policies.

Significantly, the NEC states: “the Majority refused to give any meaning to the purpose and objectives of the NEP but rather preferred to rely on the PPS which it viewed as more rigorous” [63].  The NEC alleges the Majority’s fundamental errors include:

• Finding that clearer direction for interpreting the three-part test is provided by the PPS [65];
• Holding that the PPS  “no negative impact test” is the “determinative” test to apply [66];
• Refusing to interpret or attach any special significant to the terms “maintenance”, “maintain and enhance”, and “unique ecological areas” in the purpose of the NEP [73].

It is the opinion of the NEC that this incorrect reasoning led the Majority to rely principally on the PPS and disregard the primacy of the NEP, and fail to give meaning or significance to the purpose and objectives of the NEP [68-69].  The Majority “failed to assess whether the NEP provides greater protection to the woodland” [76].  Had the Majority had proper regard to the NEP, “they ought to have found that the NEP is ‘more rigorous’ or more protective than the ‘no negative impacts’ test under the PPS” [74].

The NEC concludes its argument with further examples of “environment first focus” policies in the NEP to support its legal argument that greater protection is owed to woodlands within the NEP than provided for in the PPS “no negative impact test” [78].

 

(ii)          Reversal of the Onus

Per the NEP, the proponent (Walker Aggregates Inc.) had the onus of demonstrating that the quarry meets the purposes and objectives of the NEP.   The NEC alleges that the Majority effectively reversed the onus:

The Majority’s approach was effectively to allow the quarry, unless it could be demonstrated that doing so would be contrary to the NEP.  This error is compounded by the fact that, as submitted above, the Majority consistently refused to give effect to the NEP, preferring the PPS. [83]

Instead of requiring the proponent to make its case that its quarry would not offend the purpose and objectives of the NEP, the Majority focused on its finding that there was no compelling evidence that the quarry would offend the purpose of the NEP.  Effectively, the Majority decision implies that a quarry is granted as-of-right, unless there is evidence that it should not be there.

 

(iii)        Disregarding NEP Section 2.7 “New Development Criteria within Wooded Areas”

The NEC submits the Majority disregarded a “crucial” criterion for the issuance of a Development Permit- Section 2.7 of the NEP. [84]  The Majority determined “without any authority or support whatsoever, that section 2.7 of the NEP, ‘New Development Criteria within Wooded Areas’ was ‘more oriented toward traditional and smaller scale developments and is not completely applicable to a quarry proposal’”. [85]

The objective of section 2.7 of the NEP is “to ensure that new development should preserve as much as possible of wooded areas”.  Section 2.7 also provides that “…proposed developments in heavily treed areas shall have site plan arrangements containing specific management details regarding the protection of existing trees.” [20]

In closing at paragraph 87, the NEC argues:

The disregard for the most directly applicable Development Criteria in the NEP to the significant woodland issue is yet another example of the Majority’s failure to properly interpret the NEP.

 

(iv)        Improperly Reading-in a “Net Gain” or Ecological Compensation Approach

The NEC submits that the Joint Board erred in applying a net gain approach to allow 32.8 hectares of significant woodland to be cut down and replanted elsewhere to permit the development of the Walker Quarry.  The net gain or “ecological compensation” approach of the Joint Board is the concept of compensating for the removal of significant woodland (including wildlife habitat) through the planting of trees elsewhere, even outside of the NEP area. [90]

The NEC argument outlines how a “net gain” approach is inconsistent with the applicable purpose and objectives of the NEP, and the environment first objectives of the NEPDA/NEP. [96-97]

The NEC refers to the recent Re Nelson Aggregate Co., 2012 CarswellOnt 12881 decision to bolster its argument that the NEP does not include the concept of “net gain”, and that the PPS has no provision for “net gain” to offset the requirements of “no negative impact”. [95]

The NEC concludes its submission on this legal error at paragraph 97:

The Majority, however, refused to interpret or give effect to the provisions of the NEPDA/NEP that set out these objectives and instead applied the balancing approach set out in the PPS.  Accordingly, the Applicant [NEC] submits that the Board erred in applying the “net gain” approach.

 

(2)   Error in Delegating the AMP to the Minister

Briefly, an AMP is a document that outlines how a quarry operator will monitor the environmental impact of its quarrying operations, and respond in the event of environmental impacts.  “An AMP has been described as a ‘flexible system of mitigation and monitoring’” that has been included as a finalized condition to an aggregate licence. [99]

At the Hearing, the Joint Board considered the proposed draft Walker AMP to be a ‘fundamental’ part of the application and was aware that the AMP was a matter of considerable controversy between the parties. [106]  However, the Joint Board failed to issue a decision on the AMP, and instead deferred the finalization of the AMP, a condition of the licence, to the Minister, effectively precluding parties from commenting on the final proposed AMP.  [106]

 

The NEC argues that “the Majority improperly sub-delegated the finalization of the AMP to the Minister of Natural Resources” since the Aggregate Resource Act provides no authority for the Minister to finalize the AMP, or the Joint Board to delegate this task to the Minister. [98]

At paragraph 105:

By directing the Minister to issue a licence with a requirement that the Minister make modifications to and finalize the AMP “to the satisfaction of the Minister”, the Joint Board required the Minister to do more than refuse to impose conditions…By deferring the finalization to the Minister as it [the Joint Board] did, the Joint Board exceeded their deferral power…and improperly sub-delegated the task of modifying and approving the AMP.”

The NEC submits “This improper sub-delegation resulted in a breach of procedural fairness” [98], and explains how at paragraph 106:

This improper sub-delegation prevented the parties from making submissions to the Joint Board on the final AMP contrary to their rights under the Statutory Powers Procedure Act.  The Joint Board… effectively prevented a hearing of the deferred matter without first deciding that the matter [the AMP] was not in controversy.

Donnelly Law will continue to report on the case and the parties’ submissions.  CCC will submit its argument on March 22, followed by Walker and other respondents on April 15, 2013.  The case will be argued before the Divisional Court on April 25, 2013.