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St Marys Cement Withdraws PTTW Appeal to Environmental Review Tribunal

FORCE Motion Delivers Results for our Communities

St Marys Cement (SMC) has withdrawn its appeal to the Environmental Review Tribunal (ERT). SMC had appealed the decision by the Ministry of the Environment (MOE) to refuse to issue a Permit to Take Water (PTTW) to the company in June 2010. MOE refused the permit on the basis that a Ministerial Zoning Order is in place on the proposed quarry site, freezing the zoning as Agricultural and Conservation Management, effectively stopping a quarry. The PTTW permit application was in support of a establishing a quarry.

So what happened? Here's what we know:

On August 26, 2010, the ERT held a preliminary hearing in Waterdown. The tribunal member identified some of the issues in the appeal, decided which groups and individuals would have party, participant and presenter status, and established that the main hearing would be held during the week of December 6, 2010. Lawyers for FORCE indicated to the other lawyers and to the tribunal member that our Communities intended to bring forward a motion that the appeal was premature.

On September 28, 2010, FORCE presented a 714 page submission to the ERT, on behalf of our Communities. It was also delivered to the lawyers for the other parties, including SMC, the MOE, and the City of Hamilton. The FORCE submission included a motion for adjournment sine die (an adjournment without prejudice), an affidavit signed by FORCE Chair and Spokesperson, Graham Flint, and many supporting documents. The FORCE submission made the argument that SMC's appeal to the ERT was premature. Lawyers for FORCE wrote that the appeal should be adjourned, until the OMB considers SMC's request that the Ministerial Zoning Order be revoked or cancelled. Read the final FORCE motion (148 KB) and affidavit (677 KB).

Lawyers for the other parties were scheduled to respond to FORCE's motion, in writing, by October 13, 2010. The FORCE motion was to be argued by lawyers for all parties at a hearing before the ERT on October 20, 2010.

On October 12, just one day before response materials were due, lawyers for SMC wrote to the ERT and withdrew the company's appeal. Read the SMC letter (33 KB).

While we may never know all the reasons behind SMC's withdrawal of its appeal, our Communities' intervention before the ERT was solid and substantive.

This is a key example of why our Communities need to stay engaged, until St Marys Cement has exhausted all of its appeals. Decisions to intervene before tribunals, like the ERT, cost a significant amount of money. Legal costs alone for the ERT preliminary hearing and preparations for the motion for adjournment approached almost $40,000. Our proactive motion has, however, helped to save many more tens of thousands of dollars that we would have had to spend had the entire appeal hearing proceeded. Sometimes, a strategic investment can help save a large investment, like the one we all have in our communities!

We need to keep doing what we have shown works – pooling our resources, bringing our Communities' unique perspectives and strong case arguments to the table, and ensuring we are represented by the best legal and technical expert teams.