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Future of proposed quarry site unknown
ANOTHER ‘NAIL’ HAMMERED IN ‘COFFIN’ FOR ST MARYS CEMENT PROPOSED FLAMBOROUGH QUARRY
ERT Dismisses Company’s Appeal and Upholds MOE’s Decision to Deny Permit
FORCE has received notice that the Environmental Review Tribunal (ERT) has dismissed St Mary’s Cement’s appeal and upheld the Ministry of the Environment’s (MOE) decision to deny the company a Permit to Take Water (PTTW). The ERT’s decision was issued January 13, 2012. St Marys Cement (SMC) applied for its most recent PTTW in February 2011. MOE denied the PTTW in April 2011, on the basis that it could not issue a permit in contravention of the Ministerial Zoning Order (MZO) on the proposed quarry lands. The company appealed the decision to the ERT in June 2011. The ERT held a public hearing in September 2011. FORCE was a party to the hearing and our Communities were actively represented by legal counsel.
The issue that was under consideration at the ERT hearing was a narrow legal issue – whether section 48 of the Planning Act prohibits the issuance of a PTTW for a pumping test where the MZO is in place. An MZO was placed on the proposed quarry lands in April 2010, freezing the zoning as Agriculture and Conservation Management, and stopping a zoning change to Industrial Extractive (quarry). MOE argued that the ministry was “...obliged to respect and comply with the intent and purpose of the MZO”. The ministry consulted section 48 of the Planning Act when it deliberated on whether it could issue a permit. Section 48 indicates that “...a licence, permit, approval or permission shall not be issued by a...public or Crown agency in respect of any land... where the proposed use of the land...would be in contravention of...an order made under section 47...” MOE found that section 48 did not permit it to issue a PTTW.
The independent administrative tribunal agreed with the MOE and found that section 48 of the Planning Act prohibits the issuance of the permit. The basis for this finding is that the PTTW is for aquifer testing in respect of a site, the proposed use of which is a quarry, where quarrying is not a permitted use. The ERT found that the section’s wording provide a broad interpretation to capture any connection/relationship between the land, use, and proposed permit.
We will review the decision in more detail to fully understand its content and implications.
Our Communities are pleased that the ERT has upheld the MOE’s decision to deny St Marys Cement a Permit to Take Water to support its quarry application because of the Ministerial Zoning Order in place on the properties. The decision is consistent with the Government of Ontario’s decision to freeze the lands for Agriculture and Conservation Management. We thank the Environmental Review Tribunal for its time and deliberations.
While we may not like it, we understand that the company still has appeal rights; we do live in a democracy and we would want to have similar rights if our positions were reversed. Section 102.3(1) of the Ontario Water Resources Act gives the company the right to appeal to the Divisional Court on a question of law. SMC would have to commence its appeal within 30 days of the decision. The ERT’s Rules also provide the company with the right to request a review of an order or decision within 30 days of the decision. We will be monitoring the company’s reaction and our Communities will be kept informed of any appeal or review steps.
Our Communities naturally hope that the company will respect the decision of the Tribunal and consider dropping the other actions which it has underway. The company filed an application for judicial review of the decisions by Ministers of Municipal Affairs to issue the MZO and a Declaration of Provincial Interest (April 2011) in an OMB hearing which is currently adjourned. The company has also filed an application for a section 11 NAFTA arbitration seeking compensation.
While the ERT decision is good news and represents yet another ‘nail’ hammered in the proverbial ‘coffin’ of the proposed St Marys Cement Flamborough quarry, it’s not over...yet!
Our Communities need to remain engaged and vigilant. We need to keep doing what we have shown works, as evidenced yet again by this most recent decision – pooling our resources, bringing our Communities’ unique perspectives and strong case arguments to the table, working with the provincial and municipal governments, their agencies and other key stakeholders, and ensuring we are represented by the best legal and technical expert teams possible.
Together, We Will Succeed!