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On Friday, July 18, 2008, FORCE on behalf of our communities, filed what is called a Notice of Application for Leave to Appeal. This application, submitted to the Environmental Review Tribunal (ERT), requests further review of the Permit to Take Water (PTTW) issued by the Ministry of the Environment (MOE) to St Marys CBM for its proposed Flamborough quarry. This means that we have taken the first legal steps necessary to challenge the PTTW. The application also included a request that the permissions granted by the permit be suspended by requesting that the ERT issue something called an interim stay. If this stay were issued, St Marys would not be able to move ahead with their testing. FORCE also issued a "stand down" letter to St Marys asking the company to stop their testing while the ERT considers FORCE's application.

Making the decision to initiate legal action has been challenging. We had signalled our intention to seek leave to appeal to the ERT when the PTTW was first issued. We unfortunately encountered a significant hurdle when the final permit was issued for less than one year, apparently removing our rights of appeal. In making our decision we have had to consider factors such as the outstanding problems with the PTTW and their seriousness, the different legal options available to us along with their potential outcomes, our communities' fundraising resources, how far along we are in the overall proposed quarry application process and the stages yet to come, and what seemed like an endless list of other factors. In the end though, we decided to proceed with the application.

Our legal experts have given us their best advice that we should proceed to challenge this permit in order to meet the following goals:

  1. This is the first regulatory decision related to this proposed quarry. It is important to signal to St Marys and to all the regulators \ decision makers that our communities are serious about challenging this proposed development. Given the tragic events of Walkerton, decisions taken about our drinking water must be scrutinized to the highest degree. We must show that our communities are prepared to take all the steps necessary to ensure that happens.
  2. Our community's legal and technical experts have identified significant policy and scientific reasons why the PTTW decision, despite its improvements, is still not reasonable. We continue to be concerned that the PTTW, if implemented in its current form, could result in significant harm to the environment. Source protection planning has not been done first as a safeguard. The GRS system for mitigation is unproven and theoretical and discriminates against our community because it uses us as "lab rats". The tests are unrepresentative of the impacts from the proposed full scale quarry and as such the results of this limited testing have the potential to bias future decisions. We expect that this test will lead to further tests, therefore it is important to establish appropriate test and regulatory frameworks right from the start. All these matters should be raised with key regulators such as the ERT.
  3. It is critically important that we document our continuing concerns and objections at key decision points and with the appropriate regulatory agencies throughout the proposed quarry application process leading up to any future OMB or Consolidated Hearings Board hearing. We need to demonstrate that our objections have been substance based and consistent throughout the entire process.

It should be noted that despite the hurdle of the PTTW being issued for less than a year, we have had some initial success with our application. It was possible that the ERT would turn down our application immediately. Instead, after receiving our application, the ERT indicated that it would consider whether it has jurisdiction. The ERT has asked FORCE for further comments by July 25 and it has invited responses from MOE and St Marys by July 30. FORCE will then be allowed to reply to those comments. Realistically, our application still has a long way to go. The less than one year time limit on the permit may still exclude us from be granted an opportunity to appeal and as a result the ERT may never fully consider the elements of our challenge to the PTTW. But whatever the decision of the ERT, at a minimum, we will have met our three goals.

St Marys has announced that its testing will begin on Monday July 21. We don't feel that their doing so would be consistent with their claims of being a good neighbour. We expect St Marys to respect the ERT's authority and cease from any testing while the ERT's democratic process proceeds. We also expect the MOE and other municipal and agency representatives monitoring the test to also respect the ERT process. Based on St Marys' track record though, good neighbourly actions don't usually happen. After all, the July 21 test start date did not even wait the 15 days allowed us after the permit was issued to submit our application for Leave to Appeal.

We will have to wait and see how all this will unfold. As we proceed through the proposed quarry application process over the coming years, we will face more difficult decisions regarding where and when we need to exercise our legal rights. These are difficult strategic decisions, but we must demonstrate to St Marys that when the time is right we will step up to the plate and use all means necessary to fully protect our rights, our homes, and our families. After all that's what this is all about.


Together We Will Succeed!