Canadian Music Icon Seeks Protection of Fallsbrook Creek & Sawguin Creek Marsh

Ameliasburgh—Area residents are challenging the relocation of a gravel access road on Gore Road near County Road 23 in Ameliasburgh, Prince Edward County. W. D. Harris Excavating Ltd. (“Harris”) applied to the County and the Ministry of Natural Resources for permission to relocate the road earlier this year and received approval by September 2009 without providing notice to affected residents.

The residents, led by Canadian music icon Bernie Finkelstein, the founder of True North Records and long-time manager of Bruce Cockburn, are concerned that the relocation of the road may adversely impact on Fallsbrook Creek, a significant flood plain that traverses the Harris property and drains into the Sawguin Creek Marsh.

“The Sawguin Creek Marsh, part of which sits on the southern edge of our property, stretches well beyond our borders and into the centre of the County. It’s considered one of the most significant wetlands in the province,” said Mr. Finkelstein, citing the Natural Heritage League who became interested in protecting the wetland complex in 1992.

“Although a portion of the marsh sits within our property line, I know that no one can ever truly own a wetland; it’s a shared natural resource. We do, however, take our responsibility as stewards of this significant natural feature seriously and we find it hard to believe that we were cut out of this process.”

The proposed relocation of this commercial road will be nearly 1,400 feet closer to Fallsbrook Creek. The environmental impacts of the road’s construction and use by gravel trucks on the Creek and Marsh are unclear, but neither the County nor the Ministry required Harris to assess these potential impacts prior to granting the approvals. In fact, the County accepted a sketch by Harris on its entrance permit application which labelled Fallsbrook Creek as a “drainage ditch”.

The quarry, operating in the area for decades, has a long and interesting history. In the 1980’s, residents successfully opposed a significant quarry expansion. In 1996, a proposal to relocate the access road next to Fallsbrook Creek was rejected. In both cases, the residents were notified by the County well in advance of any approvals being issued.

Strangely, the County appears to have revised its policy as it did not provide notice to residents about this proposed road relocation.

Elizabeth Gerrits, owner of the adjoining land, remembers previous battles. “In the past, the local community was always allowed to present its perspective on the impacts of proposed changes to the quarry, and decision-makers chose to keep the quarry and the road where they were. It is unclear why these well-considered decisions have been summarily overturned by sneaking this through without anyone in the community having a fair opportunity to speak on the issue,” said Gerrits.

“It’s bizarre. I now realize that the whole process occurred out of sight and without notice to any of us. I’m stunned,” said Mr. Finkelstein. Ms. Gerrits finds it unthinkable that the landscape is about to change. “For over two hundred years, the Redner family farm has been bordered by woods, streams and wetlands, not by a commercial road for gravel trucks.”

In general, an affected party’s procedural fairness rights include both a right to receive notice and the opportunity to state his/her case (see Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817). In this case, relocation of the Harris access road and road entrance means an increase in aggregate truck traffic near residents and the watercourses, which means increased dust, noise and vibration. These nuisances may adversely impact on the quiet enjoyment of the residents’ property, but they may equally compromise the integrity, features and functions of the Fallsbrook Creek, flood plain and Sawguin Creek Marsh. Given the importance of this decision to the residents, they were entitled to be notified and to make submissions to the County and the Ministry.

In granting the entrance permit, the County did not alert area residents. In granting an amendment to the quarry’s site plan, the Ministry decided to merely post an instrument on the EBR Registry for a 30-day commenting period. Since area residents did not receive notice of this application, they were unaware of the posting and therefore unable to submit comments in time. Merely posting an instrument proposal on the EBR website without notifying affected parties does not meet the standard of notice and participation rights to which the residents are entitled.

Mr. Finkelstein and others have now retained lawyer David Donnelly, NOW Magazine’s “Best Green Activist” for 2008 and recipient of Earth Day Canada’s “Hometown Hero” Award. “The Environmental Commissioner of Ontario has commented several times that the Aggregate Resources Act is out of date – this is one of the worst examples that I have seen of excluding the public,” said Donnelly.

“We expect Prince Edward County to join Mr. Finkelstein and residents in closing this loophole and stopping the road,” Donnelly added.

Mr. Finkelstein and neighbours have now joined the fight to reform the Aggregate Resources Act, including stronger public notice provisions. The group would also like to grow the greenbelt in Prince Edward County and are determined to see a Green Gravel Standard for Ontario. Prince Edward County has been discovered by developers and needs protection like the Niagara Escarpment, Holland Marsh and the Duffins Rouge Agricultural Preserve.

Residents anticipate an Ontario Municipal Board hearing on this issue in spring of 2010.

For more information: Bernie Finkelstein, 416-402-9937, bernie@finkelsteinmanagement.com David Donnelly, 416-722-0220, david@donnellylaw.ca