TORONTO — A one-day hearing held Thursday could determine the fate of the proposed quarry expansion west of Duntroon.
The Niagara Escarpment Commission voted last August to challenge the decision of the Consolidated Hearings Board decision that allowed Walker Aggregates to expand its quarry operation.
The initial hearing lasted 139 days over a 13-month period and ended last June in a 2-1 decision in favour of the expansion.
Thursday’s judicial review hearing was held in Osgoode Hall courtroom three in front of a three-judge panel: Justices Tom Lederer, Katherine Swinton, Renee Pomerance. The judges have reserved their ruling whether to uphold, amend, or overturn the Consolidated Hearings Board decision.
NEC lawyer Lise Favreau argued the two members of the Consolidated Hearings Board who supported granting Walker a license made legal errors in its decision by not considering the Niagara Escarpment Planning and Development Act (NEP).
“At the end of the day, the majority didn’t do what they were supposed to do,” she told the court. “They took a normal Planning Act approach going into making this decision… as they would anywhere in the province — and in doing so they failed (to recognize) the key terms in the NEP, the tests set out in the NEP, and the analysis that takes place under the NEP.
“Their approach was that getting aggregate is a good thing and let’s figure out how to make this work rather than having a more conservationist approach and see how this fits within the policy and objectives of this particular special protected conservation.”
Favreau said the NEP has stricter guidelines than the Provincial Policy Statement (PPS), but furthermore that it must be understood and applied.
A key term Favreau says the majority did not give meaning to is that the proposed quarry is on the Niagara Escarpment, which is considered under the NEP as a “unique ecological area.”
She says in failing to interpret this term, the majority did not give adequate protection to the Niagara Escarpment.
The commission’s decision to challenge was somewhat buoyed by the dissenting viewpoint of panel member Robert Wright, who wrote his two colleagues on the joint board failed to correctly analyze Walker’s application through the lens of the statutory provisions of the (Niagara Escarpment Plan Development Act) and the policies of the NEP.
UNESCO designated the Escarpment as a World Biosphere Reserve in 1990 and the proposed site is habitat to the Bobolink, has a stand of Butternut trees, and a colony of American Hart’s Tongue Fern — all of which are considered endangered species.
Favreau also said the majority did not properly identify the meaning of “preserve” in the NEP as the amended proposal allows for the removal of 32 hectares of trees.
The plan includes reforestation of eight hectares; however, that won’t done be in the same location.
Clearview Community Coalition’s lawyer John Laskin argued the basis for the noise evaluation was incorrect in the hearing.
He argued that the two experts on noise levels discussed the issue on the premise the current Walker Aggregates quarry — located on the south side of County Road 91 — would no longer be operating, which isn’t now the case as the Ministry of Natural Resources recently approved the removal of another 600,000 tonnes of aggregate from the current site.
He said the quarry would see 500 trucks coming to and from the site daily.
CCC was one of the parties to the Consolidated Board hearings, in opposition to Walker’s application.
“There are a lot of politicians past and present that take great pride in decades of work to protect this beautiful part of Ontario. Governments of all political stripes worked to create the NEP, with its unique set of policies and principles,” said Ruth Grier, a former Ontario Minister of the Environment in the NDP government and a member of the CCC, in a press release. “Never once did we think it would be overturned by two members of the Ontario Municipal Board.”
The original application indicated there are 44 million tonnes available on the site, and Walker vice-president Ken Lucyshyn estimated the company would ship 1.2 million to 1.5 million tonnes a year.
“The majority of the (Consolidated Hearings Board) made no error of law,” said J. Thomas Curry, Walker’s lawyer.
Curry said the approval was “heavily conditionally approved,” which demonstrated evidence that the board took “great care of the environment” in its decision.
He said one of these conditions was reducing the size of the quarry from 64 to 59 hectares.
Curry highlighted a portion of the decision that stated the Joint Board found the proposal consistent with the NEP and the PPS.
Curry said the board did not come to its conclusion on its own, but as the result of 36 expert witness and “many in support of the application from the community.”
Lucyshyn told the E-B when the judicial review was announced he was “perplexed.”
“We had a good understanding of the natural environment, and we were confident a quarry could work at that site,” he said last August. “This has been a very thorough process, and very expensive.”
Walker Aggregates acquired the land 10 years ago, Curry told the court.
Clearview Township supported Walker Aggregates during the hearing, and the municipality’s legal bills were footed by the company.
The municipality’s lawyer Ian Rowe said the township desires “good quality aggregate that’s available locally.”
Rowe argued the board dealt with a series of key issues in its findings — including geology, natural heritage, ecological issues, transportation, economical tourism, and visual impact.
“The board did not simply rubber stamp the Walker proposal,” he said.
Environmental Defense representatives attended Thursday’s proceedings, having gained a stake in the debate after its lawyers represented the CCC during the initial hearings.
In a press release, it stated legislators and environmentalists are beginning to develop and refine the concept of “net gain,” where industries can incur some environmental impacts provided they offset those impacts.
“Clearly, net gain is not now a policy under the NEP, and should not be treated as such by the Joint Board or the courts,” said David Donnelly, Environmental Defence legal counsel.