Independence of Land Use Planners Challenged

On February 28, 2018, Donnelly Law will be before the Public Service Grievance Board (the “Board”) arguing one of our most important cases involving the Greenbelt and Places to Grow. Specifically, we will be defending the independence of professional planners in government to speak truth to power, even when government doesn’t like their opinions regarding growth management and urban sprawl in southern Ontario. Here’s the background. Several weeks ago, Victor Doyle RPP MCIP, one of Ontario’s most experienced professional planners and an “architect of the Greenbelt”, begrudgingly left the provincial Ministry of Municipal Affairs.

This is a huge loss at a critical time given the release of the new Growth Plan and Greenbelt Plan, the preparation of documents supporting the Plans, municipal implementation of the Plans and the current initiative to Grow the Greenbelt. Mr. Doyle had been at the epicentre of provincial planning in the Greater Golden Horseshoe for almost thirty years, serving 9 provincial governments under all 3 political parties.

Why is he leaving? On June 5, 2017, Mr. Doyle was found to be in “conflict of interest” under the Public Service Ontario Act and re-assigned from arguably one of the most influential planning jobs in North America to a redundant research position investigating driverless cars. He was given an office on an empty floor, stripped of his staff and even denied access to the government computer data server.

Subsequently, Mr. Doyle filed a grievance with the Public Service Grievance Board (the “Board”) asking that the Board rescind the “conflict of interest” finding. Donnelly Law is asking to Board to withdraw this finding and recommend systemic changes so that planners are free to express their independent opinions (provided of course no confidential information is disclosed).

What was Mr. Doyle’s so-called “conflict”? On May 7, 2017 he disseminated publicly The Growth Plan and the Greenbelt Plan – Setting the Record Straight a paper refuting spurious claims by the development industry that Ontario was running out of developable land (greenfields) for ground related housing and that this shortage was the cause of dramatic increases in housing prices.

In fact, Mr. Doyle’s paper showed there were upwards of 125,000 ha (over 300,000 acres) of land approved for urban use and yet we have only used about 20% of it by the end of 2016. This represents an over-supply of land to accommodate growth to 2041. David Crombie called the Paper an excellent piece of “ground-truthing”; the Neptis Foundation wrote, “Bravo – somebody had to do it.”

Industry spokespeople in the media were using the claims of a land supply shortage as the pretext for asking the Government to compromise its strategic Growth Plan, and possibly the Greenbelt.

The Ministry, in its legal arguments against Mr. Doyle, also cite an interview Mr. Doyle gave to Jeff Gray of the Globe and Mail as a source of the conflict of interest, which Mr. Doyle believes is the true source of the disciplinary action against him.

This is odd, as his Job Description lists as a primary responsibility “Frequent contact with stakeholders, including: … the general public and the media… to explain, resolve or exchange information regarding land use planning.”

The Ministry isn’t even alleging the paper’s dissemination is a true conflict i.e. there is no allegation of an outside business relationship.

Instead, the Ministry is alleging he broke arbitrary rules designed to stifle his professional opinion critical of the development industry’s misuse of greenfield land supply statistics.

This is the second time Mr. Doyle was found in conflict of interest – the first being in 2010 when he shared his professional views on the ill-conceived Simcoe Strategy – which were also subject to media coverage.

As a result of the 2010 finding, he was removed from his position of Manager of Community Planning – Central Ontario where he oversaw planning applications for most of the Greater Golden Horseshoe including reviews of numerous, large-scale developments involving tens of thousands of acres in Simcoe County, which were subsequently approved for development. The proposals were opposed by Environmental Defence, Campaign Lake Simcoe, Ontario Nature, and other environmental organizations[note]Continuing to Promote Sprawl in Simcoe County Campaign: Lake Simcoe’s Response to the Proposed Simcoe Amendment to the Growth Plan, Environmental Defence et al, 10 January 2014. [note]http://donnellylaw.ca/wp-content/uploads/2011/01/Environmental-Defence-Growth-Plan-Simcoe-Amendment-EBR-Response.pdf[/note]. Simcoe has been referred to as the "Wild West" of development in Ontario.[note]“The county is the "Wild West" of development in Ontario, says Rick Smith, executive director of Toronto-based Environmental Defence.” Phinjo Gombu, Sprawl Hits Above the Belt, The Toronto Star, 10 March 2007. https://www.thestar.com/news/2007/03/10/sprawl_hits_above_the_belt.html[/note]

It is the opinion of Mr. Tony Usher, Past-President of the Ontario Professional Planners Institute (“OPPI”), that Mr. Doyle’s release of the paper was not a conflict of interest, and more importantly, Mr. Doyle had an ethical duty as a professional planner to speak freely and openly with the public and media about critical decisions affecting land use planning, environmental protection, transit, housing and urban sprawl. Mr. Usher is being called as an expert witness.

We all support the fight to preserve the independence of scientists in the federal government and their right to speak freely. On Wednesday February 28, 2018, we will have a hearing on whether the planners that control environmental protection, farmland preservation and urban growth expansions in Ontario are truly independent from the influence of bureaucrats, politicians and industry. The conflict of interest finding against Mr. Doyle has already had a “chilling effect” on provincial planners.

A Board decision is expected sometime this Spring.

Eulogy: Heather Bastien

** Eulogy ** Heather Bastien’s Legacy in the Traditional Territory of the Huron-Wendat

A great friend and Elder to all of us, Mme Heather Bastien, passed away last week. Canada lost one of its greatest Aboriginal cultural heritage champions.

Together with Luc Laine, legal counsel and a few dedicated archaeologists, Heather’s efforts resulted in the protection of dozens of significant Huron-Wendat villages and burials, after decades of neglect and destruction by urban development in southern Ontario, the Traditional Territory of the Huron-Wendat.

In addition, four laws in the province of Ontario were reformed as a direct result of her campaigning for indigenous rights and recognition.

After retiring in her late 60’s, Heather traveled with her sisters to Midland, Ontario in 1999 to visit the ancestral homeland of her Nation, the Huron-Wendat. She had never been to Ontario. Her curiosity was piqued by a Parks Canada pamphlet at Sainte-Marie among the Hurons declaring the Hurons “extinct”.

What few people knew then was that when the Huron-Wendat people were driven from southern Ontario in 1650, they left behind a rich legacy of villages, burials, sacred sites, place-names and artifacts. As development exploded across their former territory, approximately 8,000 Aboriginal culture heritage sites were destroyed, 2,000 were significant. Most of these sites were Huron-Wendat.

In 2001, all that changed. Heather was invited to a ceremony by the Rouge River, once a thriving Huron-Wendat community, where we were first introduced.

The Ontario Realty Corporation (a government agency) had given a piece of land to the Catholic Cemeteries Board to allow them to build a 50,000-plot cemetery adjacent to a significant 14th century Wendat village, known as the “Milroy Site”. Heather wanted to know why the Huron-Wendat weren’t consulted, and how so much digging could possibly avoid the desecration of the nearby but undiscovered mass burial or “ossuary” of her ancestors?

Environmental Defence, Save the Rouge and the Huron-Wendat Nation came together to launch a remarkable private prosecution of the Ontario Government for failing to consult First Nations under the Environmental Assessment Act (“EA Act”)

At trial, the government argued an archaeological consultant driving a Mohawk woman by the site was sufficient consultation. The Judge laughed at that one, but didn't laugh when our star witness, Environmental Commissioner Gord Miller, told the court the Ontario government had broken the law.? Together, we obtained a precedent-setting conviction, and the case was written up in the Globe and Mail as a “landmark victory” for the Huron-Wendat people and First Nations rights in Canada.

Finally, the Huron-Wendat and their legacy was legally recognized in Ontario.

What followed was a tidal wave of notices to the Huron-Wendat under the EA Act of new projects that threatened Huron-Wendat villages and burials all across southern Ontario.

A court challenge of the new status of the Huron-Wendat was launched by developers and other First Nations, fearful of a loss of land and authority over Aboriginal sites. The case forced Heather, by now well into her 70s, to testify on behalf of her Nation in another landmark case in Seaton, Ontario. Heather and Luc Laine had negotiated a breakthrough heritage conservation agreement with the government of Ontario that would see four significant Huron-Wendat sites protected from a single urban development, a momentous development agreement (not seen before or since). The court agreed with everything Luc and Heather had done, and further that the Huron-Wendat had the sole authority to make the agreement concerning their sites. Another victory was secured in which the court unanimously recognized the Huron-Wendat interest in their archaeological record in Ontario.

On December 7th, 2005, the Ontario Realty Corporation remitted to Heather Bastien a certificate certifying that a Wendat Site in Ontario would, from now on, be named for the Bastien Family, that is the Sébastien Site in the City of Pickering. This honour was given as a word of thanks for her great contribution to the conservation/protection of sites and ossuaries found across Ontario. After the ceremony, the media quoted ORC spokesman Jim Butticci, who said, "We feel this was an important event in the ongoing relationship ORC is building with the First Nations community. The very fact we named it Sebastien is very significant”. The naming of Aboriginal sites after archaeologists, landowners or almost anything was a long-standing tradition in Ontario, until Heather and Luc put a stop to it. Burials and village sites commonly had names such as “Seed-Barker”, “Milroy”, “Teston Road” or “Park” (named after a nearby trailer park). Heather made it her personal mission to respectfully re-name new and old Aboriginal sites.

On Thursday March 28, 2013, Mme Heather Bastien received the Queen Elizabeth II Diamond Jubilee Medal in Wendake, Quebec. The Medal was presented by the National Aboriginal Veterans Association for Heather's work in commemorating ancient Huron-Wendat cultural heritage sites by re-naming them after Huron-Wendat veterans, such as Marcel Bastien and Fernand Laine, who had been treated so shabbily upon their return from war.

Perhaps Heather and Luc’s greatest victory was the preservation of Skandatut and the repatriation and re-burial of 2,000 Huron-Wendat skeletons at a nearby ossuary in Vaughan Ontario. Skandatut is a very large, 15th century village site in Ontario’s Greenbelt that would have served at one point as the Huron-Wendat capital. A developer sought a development permit to destroy the site to make way for new homes, and had begun to dig up the site.

What followed was another court case, and an incredible public education and awareness campaign led by Heather, Luc and Environmental Defence. Assembly of First Nations National Chief Shawn Atleo ultimately wrote Premier Dalton McGuinty, calling Skandatut an “internationally significant site of high historical and archaeological significance”, and asked for its preservation in the name of all First Nations people.

The Premier listened, issuing an unprecedented “Stop Work Order” under the Ontario Heritage Act. Heather and Luc traveled to Toronto many, many times as part of a provincially-led negotiation that culminated in the successful creation of a 10-acre park, with Skandatut at its heart.

At this time in Ontario history, Aboriginal burial sites were routinely dug up without consent for academic purposes, or to make way for development. The Ontario Cemeteries Act did not require notice to the rightful descendants when a burial was discovered i.e. the most closely culturally affiliated Nation, but rather allowed notice to the “closest geographic” First Nation. For example, in August 2005 when a roadwork crew tore open a 400-person Huron-Wendat ossuary on Teston Road in Vaughan, the government called in an Anishnawbe person to conduct the re-burial. For decades, no one cared about Huron-Wendat burials. Heather and Luc set about changing the laws on Aboriginal burials and cultural affiliation.

They met their greatest challenge upon learning the University of Toronto had been storing (on Huron Street, if you can imagine) thousands of bones dug up by archaeologists from Huron-Wendat ossuaries across Ontario. Nearly two thousand Huron-Wendat ancestors were stored in banker’s boxes, all jumbled together by bone type, with titles like “skulls”, “femurs”, “teeth”, etc. scribbled on the sides of the boxes.

When Heather first entered the storage area, her heart sank. To make matters worse, at first the University of Toronto claimed ownership over the bones, and maintained a right to continue to perform scientific experiments without consent. Another court case was initiated, with Heather and Luc in the lead for the Huron-Wendat. Gradually, with overwhelming perseverance, patience and conviction, both the University of Toronto and the Ontario Heritage Trust were won over. A site was found for the re-burial across the Humber River from Skandatut, along the Carrying Place Trail, which is now known as the Thonnakona Ossuary.

In May 2012, in order to finalize the Thonnakona burial agreement, Heather and the Huron-Wendat Nation travelled to Miami, Oklahoma to reach an accord over ancestral sites with the Wyandotte First Nation, separated from the Wendat in 1650.

One day in September, 2013 under a sunny sky, the ancestors’ remains were laid to rest in a day-long ceremony. The Thonnakona Ossuary and the newly protected Skandatut would be forever linked and protected in Ontario’s first dedicated cultural heritage landscape.

When she was asked what preserving Skandatut and the ossuary meant to her, she said in giving thanks to the Province of Ontario:

“We created a permanently protected cultural heritage landscape in the Greenbelt. Preserving Skandatut, our ancient capital and burial ground, is a great legacy for all Nations."

As part of this legacy, Heather and Luc made it a priority to stop decades of indifference and hostility over ancient sites between Ontario’s three Founding First Nations. Heather, Luc and her legal team travelled to several Assembly of First Nations Annual General Assemblies, where meetings between the Huron-Wendat, Haudenosaunee and Anishnawbe eventually led to a Memorandum of Understanding being signed to create the “Founding First Nations’ Circle” clearly ceding rights and responsibilities to the “closest culturally effected First Nation”, whenever a village or burial is threatened.

There is one final project of note. In 2010, Heather and Luc began a collaboration with Yap Films, History Television and ASI to produce a film about a particularly unique artifact found at a 16th century village site in Stouffville, Ontario, sometime referred to as the “Manhattan” of Huron-Wendat village sites. The Mantle site excavation yielded a piece of a Basque iron tool that was curiously buried in a long-house that pre-dated direct contact with Europeans in the lower Great Lakes. The resulting film, “Curse of the Axe,” featured Luc and Heather as they animated the experience of coming face-to-face with the ancestors. The film has now been viewed by more than three million people around the world, further extending the reach of the Huron-Wendat into the national and international consciousness.

Heather did not just change people’s minds about aboriginal rights, she also changed the law in four different ways. First, consultation with directly affected First Nations is now mandatory under the Environmental Assessment Act. Second, the Cemeteries Act was re-written so that the “most closely culturally affiliated” First Nation is notified whenever a burial is disturbed. Third, under Ontario’s Planning Act, Policy 2.1.6 of the Provincial Policy Statement now says “Significant cultural heritage landscapes shall be conserved.” Finally, the “Standards and Guidelines for Consultant Archaeologists” under the Ontario Heritage Act now requires consultation with First Nations before a site can be excavated.

This extraordinary record of law reform was a collaboration led by Heather and Luc, and their many friends in Ontario, including Donnelly Law, Environmental Defence, Archaeological Services Inc., Jacques Huot, Dr. Andrew Stewart, Gilbert’s LLP, a number of women’s and Aboriginal rights organizations and many others. In all, Heather and Luc enlisted close to 100 professionals, lawyers, archaeologists, scientists, media, and politicians in their pursuit of justice for the Huron-Wendat people.

Heather was finally “retired” as the Huron-Wendat Cultural Heritage Liaison in 2013. In her dozen years of advocacy, she was involved in 53 files, serving almost entirely as a volunteer.

She would be very cross with me if I left you with the impression her work is done. Ninety-seven ancient Huron-Wendat ancestors’ bones are being experimented upon at Louisiana State University, and the university legal counsel is refusing to hand them back. The bones were stolen from an ossuary in Oshawa, Ontario.

The City of Toronto website still says our region was occupied by “Iroquoian people”, instead of the proud Huron-Wendat people. That phrase bothered Heather, and she used to tease me, “try calling an Irishman ‘potato eater’”.

Finally, Notice of projects that threaten First Nation’s sites are given, as required by law, to local residents, conservation authorities, school boards, Ontario Hydro, gas and electric utilities, Rogers Cable and other telecommunication infrastructure providers, and the list goes on.

You must only notify the Huron-Wendat Nation of a project that threatens your sites if, and I quote the Regulation, “The First Nation is located on a reserve any part of which is within one kilometre of the area covered by the proposed plan of subdivision.” For projects in Ontario, this means Notice is NEVER given to the Huron-Wendat. This is profoundly racist and an insult to First Nations that needs to be fixed.

Now I hear Heather’s voice, “That’s enough about me David, just tell them our work is far from done”.

And so I will answer, “That’s true Heather, but you and Luc put the Huron-Wendat back on the map in your Traditional Territory. Huron-Wendat rights and responsibilities have been restored in your name, your work is done”.

Merci, Heather.

RIP Heather Bastien, 1932-2017

Delivered at: Notre-Dame-de-Lorette Church, Wendake PQ Delivered by: David Donnelly, MES LLB Date: February 4, 2017

David Donnelly on Greenbelting Halifax

David was recently invited to Halifax to speak about greenbelting Halifax. Condemning mushrooming suburban growth as a “great failed experiment,” Toronto-based attorney David Donnelly is joining forces with the Our HRM Alliance to push for a full-on greenbelt around Halifax.

Our HRM Alliance says that a greenbelt would both preserve local ecosystems and redirect growth to downtown cores, suburban main streets and rural areas across Halifax Regional Municipality.

“The planner in me says: get the true cost-accounting of urban sprawl and then your decision is easy. Let people live downtown and in existing settlement areas and save taxpayers a lot of money,” Donnelly told the Chronicle Herald.

Read the full article here: http://thechronicleherald.ca/novascotia/1433531-ending-urban-sprawl-can-make-you-happier-says-expert

First Nation and Residents United in Opposition to Development

September 13, 2016 marked Day 1 of a four-week hearing at the Ontario Municipal Board. Donnelly Law represents Curve Lake First Nation and the Friends of the Fraser Wetlands Inc. ("FFW"). Curve Lake First Nation and FFW are united in their opposition to the proposed development on the 200+ hectare property near Burleigh Falls, which is connected to the Teaching Rocks (Petroglyphs Provincial Park), an international sacred site.

A first: the OMB will move on to the Curve Lake First Nation for evidence from Elders and a professor of cultural landscapes/archaeology from Trent University. Donnelly Law successfully argued a motion to move the hearing on-reserve, so those most impacted by the Aboriginal cultural heritage issues can attend and give evidence.

The protection of an Aboriginal cultural heritage landscape and natural is at stake.  The OMB will hear from Curve Lake First Nation Elders, ecologists, First Nation botanist, land use planners, a professor of archaeology and others over the 19-day hearing.  The Township of North Kawartha is opposed to the application, and will call its land use planner. Read about the issues for the hearing here.

Economic Benefits Questioned at OMB Hearing

On the sixth day of the Ontario Municipal Board ("OMB") hearing regarding the Burl's Creek Event Grounds the OMB heard the opinions of both Mr. Arthur Churchyard, a policy advisor with the Ontario Ministry of Agriculture, Food and Rural Affairs ("OMAFRA"), and Dr. Peter Tomlinson regarding the temporary use by-law proposed for Burl's Creek and the economic impact of the events happening there. Mr. Churchyard's analysis focused at length on Section 2.3.6 of the Provincial Policy Statement, which lays out a number of tests any proposal would need to meet to get a green light from OMAFRA.

“There needs to be an actual land-use argument about whether there is a demand for a site,” Churchyard said. “I would not be able to support this proposed use as being consistent with (Section) 2.3.6.”

Mr. Churchyard challenged Burl's Creek's market analysis in that it did not go far enough to assess the demand for such uses beyond ticket sales for the events and that it did not go far enough to look for alternative sites for such events.

When Dr. Tomlinson took the stand he began his testimony by telling the board the camping and parking being considered under the temporary use by-law were actually a drain on the local economy, when looked at on their own.

“The concerts provide the economic benefits,” he said. “The camping on-site is probably — considered on its own — a negative economic impact ... simply because of the on-site camping penning the attendees in the event grounds, where there are no in-and-out privileges and where they're compelled to buy their food and beverages the organizers bring onto the event grounds.”

The hearing adjourned at the conclusion of Dr. Tomlinson's testimony, with a resumption date to be determined.

Read the news coverage here.

Noise focus of Burl's Creek OMB testimony on Tuesday

Week two of the Ontario Municipal Board ("OMB") hearing regarding the Burl's Creek Event Grounds opened with the testimony of three lay witnesses called to testify by SaveOro and West Oro Ratepayers' Association ("WORA"). The lay witnesses were followed by John Coulter, an acoustical engineer for SaveOro and WORA.

Read the news coverage here.

Week 1 of Burl's Creek OMB hearing wraps up

Despite assurances and best intentions, the Ontario Municipal Board ("OMB") hearing into the temporary zoning by-law proposed by Burl's Creek Event Grounds ended its first week of testimony far away from a resolution. Darren Vella, founder of Innovative Planning Services and the land-use planner retained by Burl's Creek, resumed his testimony to close out the Burl's Creek case. His testimony was designed to tie together the evidence given by the proponent's other expert witnesses.

It was assumed Vella would be cross-examined Friday as well, bringing a close to the Burl's Creek case. However, given the length of the Vella's testimony and the depth of the information he was presenting, the session ended while he was still in chief. Given Vella's prior commitments outside of the country next week, accommodating a cross-examination was not going to be simple.

“We keep adding time,” Chair Richard Makuch said. “When I saw this (as) three days ... I'm not pointing the finger at anybody; I'm just saying it was totally unrealistic.”

“I'm the only one in the room who can say 'I agree with you' with a straight face,” Donnelly added.

Read the news coverage here.

Participants tell OMB how they feel about Burl's Creek

Numerous stakeholders got their chance to officially tell the Ontario Municipal Board ("OMB") just how they feel about the proposed temporary use by-law for Burl's Creek Event Grounds Wednesday night. Participant statements were heard by the board at the conclusion of a marathon session Wednesday, which lasted approximately 12 hours, including lunch and dinner breaks.

Read the news coverage here.

Day 3: First Nation call for more studies of Burl's Creek surfaces at OMB hearing

On the third day of the Ontario Municipal Board ("OMB") hearing regarding the Burl's Creek Event Grounds arguments surrounding archaeological issues and First Nation concerns continued. The letters from the Huron-Wendat and the Ministry of Tourism, Culture and Sport were brought up again Thursday morning, as Paul Racher, the expert archaeologist for the Montagnais Métis First Nation, testified in front of the board.

During cross-examination, Save Oro and West Oro Ratepayers' Association lawyer David Donnelly led Racher through the letters, asking his professional opinion on their contents.

"The potential for disturbance is a risk the nation simply cannot take," Donnelly read from the letter. "Sir, is it clear to you, an archaeologist, that the Huron-Wendat Nation is withholding consent for the temporary use by-law to proceed before the proper archaeological assessments occur?"

"Absolutely," Racher replied.

The concern of the Huron-Wendat, Montagnais Métis and other like-minded individuals, such as Racher, is the compaction of the soil from camping and parking could damage any artifacts found underground, particularly in such a rich archaeological area as Oro-Medonte Township. Regardless, Racher said, most lands in the province are presumed to house archaeological artifacts until proven otherwise.

Read the news coverage here.

Land use, First Nation concerns on display during Day 2 of Burl's Creek OMB hearing

On the second day of the Ontario Municipal Board ("OMB") hearing regarding the Burl's Creek Event Grounds archaeological issues and First Nations concerns were explored by Chief Keith Doxsee representing the Montagnais Metis First Nation, and David Donnelly, counsel for SaveOro and West Oro Ratepayers' Association ("WORA"). Under cross-examination, Jamie Lemon, who prepared a Stage 1 archeological assessment for Burl's Creek, said both the Huron-Wendat Nation and Ministry of Tourism, Sport and Culture wrote in separate letters dated May 19 saying the temporary zoning by-law should not go forward until after a Stage 2 assessment is complete.

Mr. Dave Hogson, an agrologist for Burl's Creek, and Mr. Gord Miller, former Environmental Commissioner for Ontario and econologist for SaveOro and WORA, also took the stand.

A significant portion of David Donnelly's cross-examination of Hodgson was based on the latter's change of opinion regarding the type of buffer required via a minimum distance separation zone. Hodgson had previously considered a Type A buffer, which is substantially larger than a Type B buffer. Hodgson's opinion changed because he didn't consider the events occurring on the subject lands as “high intensity” recreational use.

Miller disagreed with Hodgson's classification.  “The density is far in excess of what you see in any normal campground situation,” Miller said. “All this is on the highest impact of camping, as it were. This is hardly camping in a normal sense of the word. This is an intensive use of the land more akin to a box store parking lot than camping.

Read the news coverage here.

Lengthy opening day at Burl's Creek OMB climaxes with tense cross examination

On Tuesday May 24, 2016 the Ontario Municipal Board ("OMB") hearing on the temporary use by-law application for Burl's Creek Event Grounds begun. The hearing began with Burl's Creek calling Mr. Henry Regelink, an Oro-Medonte farmer, Sgt. Guiseppe Pileggi, an OPP Officer summonsed by Burl's Creek, a brief introduction by Mr. Darren Vella, a land-use planner for Burl's Creek, and Mr. Peter Thoma, a land economist and market expert.

Most notably, Mr. Thoma had told the board it was not reasonable to put the Wayhome and Boots & Hearts festivals anywhere else besides Burl's Creek. He came to this realization by both examining other concert festival sites in the province, including Canadian Tire Motor Sports Park in Clarington and Downsview Park in Toronto.

Mr. David Donnelly didn't think Thoma had looked hard – or far – enough. If the majority of the concert goers were coming from points south of the Holland Marsh, he said, why have them travel so far north?

“It would have been actually more convenient for people to come to a festival in King City than it would be all the way up here in Orillia?” Donnelly opined. “That's where they live.”

The cross-examination of Thoma was at times tense, with the land economist often appearing unamused with Donnelly's line of questioning.

Read the news coverage here.

Private Prosecution of Republic Live Continues

Donnelly Law represents a private informant in a private prosecution, now against Republic Live Inc. only, for charges related to the WayHome Music and Arts Festival and Boots and Hearts Music Festival.  We appeared in court on Monday, March 14, 2016.  Read the Orillia Packet and Times article here. The next scheduled court appearance is April 11, 2016.

Donnelly Law Begins Private Prosecution of Burls' Creek and Republic Live

  Four charges have been laid against  each Burl's Creek Event Grounds Inc., Republic Live Inc. and related companies alleging illegal use of Agricultural/Rural lands for the 2015 WayHome and Boots & Hearts Festivals.  David Donnelly is acting as the prosecutor on behalf of a private informant, a Director of SaveOro.

February 10, 2016 was the first appearance for the companies charged.  Read the Orillia Packet article here.

We will be back in court in mid-March 2016.

David Donnelly Speaks at Simcoe County Greenbelt Townhall

David Donnelly was invited to speak at a meeting sponsored by the Simcoe County Greenbelt Coalition and AWARE Simcoe, along with Barrie Mayor Jeff Lehman, Liberal Barrie MPP Ann Hoggarth, Conservative MPs John Brassard (Barrie-Innisfil) and Alex Nuttall (Barrie-Springwater-Oro-Medonte), and Oakville Mayor Rob Burton. Lawyer David Donnelly noted that, according to land economists at the provincial Ministry of Municipal and Housing, Ontario has designated enough land to accommodate its projected employment and residential needs until 2041.

“There is no danger of running out of developable land,” Donnelly said. So the logical conclusion is that “we need to protect what we have in a natural cover state.”

Read about the event and discussion here.

Donnelly Law Client: SaveOro and West Oro Ratepayers' Association

On Tuesday, July 14, Oro-Medonte Council denied Burl's Creek Event Grounds’ special event permit application to allow camping and parking on mostly prime agricultural land.  Council did, however, issue a special event permit for the 92-acre concert site. David attended a rally against the special event, organized by SaveOro, reminding residents the proposed special events on prime agricultural land are illegal.

Read more here: http://www.orilliapacket.com/2015/07/14/large-festivals-will-have-to-be-restricted-to-92-acres

Donnelly Law Client Featured in Radio Canada Story

Donnelly Law represents Ms Gillian Evans and Mr. David Toyne, residents of Upper Cold Creek in Vaughan, Ontario.  On May 22, 2015, Radio Canada covered Ms Evans and Mr. Toyne's appeal to the Ontario Municipal Board, where they are seeking an appropriate buffer to protect the ongoing operation of their multi-generation family farm from residential development adjacent to the farm. Read about it and watch the video here.

David Donnelly on Anti-SLAPP Bill 52 Controversy

Bill 52, the Protection of Public Participation Act, was debated at Queen's Park again this week. Bill 52 is designed to prevent SLAPP suits (Strategic Litigation Against Public Participation), where deep-pocketed corporations bring frivolous lawsuits against grassroots critics (often citizen’s groups and environmental groups) in order to intimidate and silence them. MPP Jagmeet Singh (Bramalea-Gore-Malton) began the debate, commenting:

“It’s my pleasure to continue debate on this important piece of legislation. What I discussed earlier was how important this bill was in terms of protecting public participation. It’s, again, a hallmark of our society that people need to be able to participate in discourse, particularly on matters that impact their communities, so it should go without saying that people should be encouraged, not discouraged, from participating in issues that affect where they live and how they live. This law will address that.”  (http://ow.ly/KUkeW)

Although Bill 52 has wide support across all political parties, controversy has arisen over whether the Bill should protect all alleged SLAPP suit victims currently before the Courts.

If enacted as written, the anti-SLAPP “freeze” provision (reproduced below) applies only to potential SLAPP suits started on or after December 1, 2014.  The previous version of this Bill, which died in the House when the June 2014 election was called, would have applied to ongoing litigation.

David Donnelly was asked for his take on this issue by Brian Platt of QP Briefing.  While David`s preference is for Bill 52 to apply to ongoing lawsuits, the opposing view can be justified too:

“It’s not a black-and-white issue, because if you brought a lawsuit under one set of assumptions, I think you can make the claim that you should be able to see the action through under the law of the day, but any disappointment we feel over the retroactivity change is more than made up for in the euphoria that this bill is finally going to start protecting people.”

Read Platt’s March 26, 2015 article “Concerns of favouritism raised after retroactive provision scrubbed from nuisance-lawsuit bill” at http://www.qpbriefing.com/2015/03/25/concerns-of-favouritism-raised-after-retroactive-provision-scrubbed-from-nuisance-lawsuit-bill/.  (Subscription service)

Want to learn more about anti-SLAPP legislation? Read Donnelly Law’s summary of Bill 52.

Donnelly Law Comments on Ontario's Municipal Class Environmental Assessments

On January 23, 2015, Donnelly Law submitted comments to the Ministry of the Environment and Climate Change (“MOECC”) suggesting how to improve the environmental assessment process for municipal infrastructure works, known as the Municipal Class Environmental Assessment (“MCEA”).   The MCEA is a critical document that establishes a planning and approval process for a wide range of municipal infrastructure works e.g.  road widenings, bridge replacements, water and sewage works, etc. In summary, Donnelly Law’s recommendations are:

• Require all Class EAs to consider climate change. From the evaluation of preferred alternatives to the later detailed design, climate change impacts, mitigation and adaptation should be required;
• Require municipalities to publish their rationale for the choice of Class EA process (known as the project schedule) that dictates, among other thing, how rigorous the EA, and if public consultation should occur at all;
• Require municipalities to post the entire Class EA Project File online prior to the comment period. Why should members of the public need to wait to receive a copy, pay the municipality for a copy, or have to spend hours at the library to view the EA documents, which have likely been provided to the municipality in electronic format?
• Remove the unfounded MCEA restriction on bump-up requests to the Minister. The MCEA states there is no ability for the public to request a bump-up on “minor” Class EAs i.e. Schedule A/A+. In our opinion, this is contrary to the Environmental Assessment Act. Why does this matter? Reading the MCEA may prevent an individual from requesting a more stringent EA e.g. where they believe a municipality has misclassified proposed infrastructure works;
• Give more weight to identified and proposed cultural heritage resources in the selection of preferred alternatives. In our experience, heritage resources e.g. First Nation burial sites, pioneer homes, etc. are not given enough weight in the selection of preferred alternatives. New road works should fit into a designated/proposed heritage area, not detract from it; and
• Protect recognized planning areas and natural heritage features e.g. Oak Ridges Moraine or Niagara Escarpment, by simultaneously requiring the completion of technical work specific to the planning area, as anticipated to be done with the Clean Water Act.

These comments were submitted to the MOECC through the Environmental Registry to put the MOECC on notice that the Class EA process requires more than the changes recommended by the Municipal Engineers Association, which do not address the changes the Class EA process requires.

Greenbelting Halifax: One Step Closer to Reality

On November 17, 2014, Halifax Regional Municipality (“HRM”) issued a Request for Proposal (“RFP”) for a qualified firm to “go beyond the conventional parks planning approach” to develop HRM’s Greenbelting and Open Spaces Priorities Plan.  Donnelly Law will review the Greenbelting RFP to ensure HRM Staff is ambitious with its plan to protect and connect HRM’s natural heritage, cultural landscapes, open spaces, and agricultural lands. Our HRM Alliance, a group of organizations from the Halifax area, envisions a Greenbelt that establishes a permanent development boundary around Halifax to control sprawl, reduce servicing and infrastructure costs, connect green spaces and provide public access to the coastline. Over the past several years, David Donnelly and Donnelly Law have been supporting the terrific work of Our HRM Alliance and the Halifax Ecology Action Centre (“EAC”) in advocating for the establishment of a Greenbelt for Halifax.

As part of the Greenbelt planning exercise, David Donnelly and Bruce Lourie (President, Ivey Foundation) were invited to deliver the 2011 Carmichael Lecture, the premier civic discussion of policy and urban design for Halifax. David has also presented at Our HRM Alliance workshops, sharing his experience on establishing Ontario’s Greenbelt Plan, which will mark its 10^th Anniversary next year.

Private Member’s Bill to Repeal the Niagara Escarpment Planning and Development Act Defeated on Second Reading

On October 21, 2014, MPP Jack MacLaren (Carleton-Mississippi Mills) introduced Bill 32, the Bob Mackie Act¸ 2014, into the Ontario Legislature.  The purpose of Bill 32 is to repeal Ontario’s Niagara Escarpment Planning and Development Act (“NEPDA”).  The NEPDA was passed in 1973 by the Progressive Conservative government of Premier Bill Davis.  The Niagara Escarpment Plan (“NEP”) was approved by Premier Frank Miller’s (Progressive Conservative) Cabinet on June 12, 1985. The NEPDA and NEP “provide for the maintenance of the Niagara Escarpment and land in its vicinity substantially as a natural environment, and to ensure only such development occurs as  compatible with that natural environment.” (s. 1, NEPDA)  The NEP regulates a range of development, from residential housing to aggregate extraction to recreational uses.  Ontario’s Niagara Escarpment is a UNESCO World Biosphere Reserve, significant landform and working countryside recognized as a significant landscape provincially and internationally.

The NEP is subject to a formal review in 2015.  The Niagara Escarpment Commission and Ministry of Natural Resources have begun their preparations for the formal review.  The 2015 NEP Review will be coordinated with the provincial review of the Greenbelt Plan, Oak Ridges Moraine Conservation Plan and the Growth Plan for the Greater Golden Horseshoe Review.

Bill 32 is named after Mr. Bob Mackie (now deceased), a past governor of the Ontario Landowners Association and president of the Niagara Landowners Association.

On November 6, 2014, MPP MacLaren (Progressive Conservative) moved second reading of Bill 32, Bill Mackie Act, 2014, repeal the Niagara Escarpment Planning and Act Development the Ontario Legislature.   Bill 32 was defeated on second reading by a vote of one for and 44 against, including Conservative MPPs.