Donnelly Law Client Pleased with Favourable Planning Report
Stewards pleased Township on their side
Mark Pavilons for the King Weekly Sentinel
August 20, 2013
The Stewards of the Moraine Inc. are pleased with recommendations by King Township staff to refuse a bid for a rural banquet facility in the Oak Ridges Moraine Plan Area. Click here to read more about the Stewards of the Moraine's reaction to the Township Planning Report in the latest edition of the King Weekly Sentinel.
Hall Proposal in the Oak Ridges Moraine Conservation Area Draws Ire
By: Simon Martin News Reporter, King Connection
Published on Friday August 09 2013
Donnelly Law clients vow to fight banquet hall proposed for lands on the Oak Ridges Moraine.
Read the full article here: http://www.yorkregion.com/news-story/4040057-king-township-group-fights-proposed-banquet-hall/
Donnelly Law Client Takes Action Against Minister's Zoning Order
By Matthew Strader News Reporter, Caledon Enterprise
Published on Monday August 5, 2013
Another group of local residents is looking to take legal action after a Minister’s Zoning Order was given to allow construction for a 180-acre Canadian Tire distribution warehouse in Bolton.
MPP for Brampton Springdale Linda Jeffrey granted a Minister’s Zoning Order (MZO) on July 18 for the development as requested by Caledon’s council after they approved the application earlier in the month.
On July 24, David Donnelly, of Donnelly Law Barrister and Solicitor, submitted a letter to Minister Jeffrey advising her that he was retained by Palgrave resident Henry Corradini, and he has the support of five other Caledon residents and their families.
Read the full article here:
http://www.durhamregion.com/news-story/3919066-more-residents-seek-legal-action/
Environmentalists split on green energy projects
News Reporter, Toronto Star
Published on Thursday August 08 2013
Cindy Sutch, who lives amid the rolling hills of the Oak Ridges Moraine, about 45 kilometres northeast of Oshawa, is a vocal advocate for the preservation of southern Ontario’s “rain barrel.”
And like most environmentalists, she also supports efforts to reduce the province’s reliance on fossil fuels.
But recently, a handful of wind energy projects proposed for the moraine have thrown this pair of ordinarily simpatico beliefs into conflict.
Read the full article here:
http://www.thestar.com/news/gta/2013/08/05/environmentalists_split_on_green_energy_projects.html
Ontario to Announce Anti-SLAPP Legislation
On June 4, 2013, the Ontario government will introduce legislation to better protect freedom of speech with an anti-SLAPP (Strategic Lawsuits Against Public Participation) bill. David Donnelly has been advocating for this legislation since 2007. In 2008, he was named NOW Magazine's Best Green Activist for his work on smart growth and anti-SLAPP advocacy. Commenting on the concern from developers that anti-SLAPP legislation could restrict developers' claims against libellous claims, David says “In Southern Ontario, to say that developers need protection from environmentalists is to say that David should have been deprived of his slingshot against Goliath.” (http://www.theglobeandmail.com/news/national/ontario-cracks-down-on-spurious-lawsuits/article12327218/)
As counsel to Environmental Defence, David has worked towards anti-SLAPP legislation with other NGOs in Ontario. For more information on SLAPP suits, visit Environmental Defence's website.
Wind Turbines and Health: No Evidence for Concern
Wind Energy Wins Against Wind Energy Opponents Click on the link above to read a short article by Donnelly Law on appeals of wind farm renewable energy approvals alleging serious harm to human health. This article is published in the May 2013 Bluffs Advocate (http://www.bluffsadvocate.ca/).
Niagara Escarpment quarry fight before judicial review
Environmentalists are anxiously awaiting a potentially precedent-setting verdict in a fierce conflict over a proposed quarry on protected Niagara Escarpment lands south of Collingwood, not far from the picturesque Blue Mountains.
The case, which began with Walker Industries’ initial application nearly a decade ago, is now before a judicial review, with a decision expected in the coming months. If approved, some warn it will tip the balance toward those who wish to exploit the riches of the escarpment — and undermine the protections put in place 30 years ago to preserve it.
“Protection of the escarpment began because of the growth of the aggregate industry,” said Ruth Grier, former NDP environment minister and local resident. “This is one example that shows there are huge loopholes in that protection.”
Read the full article here:
NEC argues quarry doesn't meet terms of escarpment plan
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.
Read the full article here:
Escarpment Blues: Legal Battle to Stop a Massive Quarry Continues
David Donnelly comments on the precedent-setting case to be argued tomorrow to ensure the Niagara Escarpment is protected. Read it here: http://environmentaldefence.ca/blog/escarpment-blues-legal-battle-stop-massive-quarry-continues
Land Use Brawl in the Lake Simcoe Watershed
In the placid lakeside town of Georgina, about an hour’s drive north of Toronto, a fierce battle is underway to excise the ghosts of a developer past.
[...]
"I’d love it to be a forest forever, but I’m a realist,” said Georgina Mayor Rob Grossi. “I don’t have the ability as a mayor or a local council to reverse rights that have been granted by some other level of government.”
This deference, however, does not sit well with Toronto environmental lawyer David Donnelly, who describes the debate in Georgina as “an excellent example of what’s wrong with urban planning in Southern Ontario.”
“Whether it’s the influence of developers in municipal politics or a lack of provincial will to protect our vanishing provincially significant wetlands, a very poor form of development . . . is winning out over environmental protection,” he said.
Read the full article here:
Donnelly Law Client Recognized at the Green Living Show
On April 13, 2013 Donnelly Law’s client, Protecting Escarpment Rural Lands (“PERL”), was recognized at the Victories Celebration of the Green Living Show by Alternatives Journal and Green Living for it’s work to protect Mount Nemo in Burlington, Ontario. Sarah Harmer, a PERL founder, received this award on PERL’s behalf. In October 2012, an administrative tribunal unanimously dismissed Nelson Aggregate’s application to build a new quarry. This means Burlington’s Mount Nemo, with its unique ecologic and environmentally sensitive areas such as the Jefferson Salamander breeding ponds on the Harmer Family farm, will be protected.
The Victories Celebration at the Green Living Show highlighted key environmental victories and honoured individuals instrumental in making them happen and inspiring advocacy. Other recipients included Maggie MacDonald, Toxics Program Manager, on behalf of Environmental Defence and Dr. Rick Smith; and twelve-year-old Ta’Kaiya Blaney, actress, singer, songwriter, and environmentalist from the Sliammon First Nations.
Congratulations Sarah and PERL!
Donnelly Law Client Comments on Impacts of Proposed Seaton Development in Durham Region News
Traffic, heritage and financing among chief concerns PICKERING -- Residents of Whitevale say they are battling on behalf of all Pickering residents in their continued fight against the impacts of the proposed Seaton development.
A group of residents from the north Pickering village are among the last objecting parties to the long-planned Seaton development, which will add nearly 37,000 new residents to the city's existing population of 95,000 in its first phase.
"A lot of people think we're just trying to protect Whitevale, but we're trying to protect Pickering," said resident Marion Thomas, who is leading the effort. "We're trying to get the rest of Pickering to wake up and realize this will affect them too; traffic affects everyone."
Read the full article here:
Update on the Walker Quarry Judicial Review: Summary of the Arguments of the Niagara Escarpment Commission
Donnelly Law represented the citizen’s group, Clearview Community Coalition Incorporated (“CCC”), at the 15-month Walker Quarry hearing before the Joint Board. Donnelly Law will report on the arguments of the parties in this precedent-setting judicial review application of the Niagara Escarpment Commission, challenging the decision of the Joint Board to allow the quarry in Niagara Escarpment Commission v. The Joint Board et al. For Donnelly Law’s take on the Walker decision, visit: http://donnellylaw.ca/?p=1313 Overview
On June 17, 2012, a majority (2-1) of the three-member Joint Board granted conditional approval to the development of a massive new quarry in the Township of Clearview, Simcoe County, within the Niagara Escarpment Plan area (the “Walker Quarry”) and on the highest point of the Escarpment. The dissenting member of the Panel, Environmental Review Tribunal (“ERT”) Vice-Chair Robert Wright (the only member of the ERT on the panel), commented that the majority decision “sets a perilous course for increased development” in the Niagara Escarpment Plan (“NEP”) area.
The Niagara Escarpment Commission (“NEC”) agreed. On August 16, 2012, the NEC Commissioners voted nine to three to seek a judicial review of the Joint Board decision.
Former Minister of the Environment and Member of CCC Ruth Grier commented that “in all my time in government and as an advocate, the Walker decision caused me the greatest concern for the health of the Niagara Escarpment UNESCO Biosphere Reserve. I commend the commission for their vote to defend the Niagara Escarpment, one of Ontario’s truly unique environmental features.”
On February 28, 2013, the NEC filed its factum with the Ontario Divisional Court. The NEC’s application for a judicial review focuses on two “significant” errors of law in the Joint Board majority decision:
(1) Errors in the Test to Allow the Quarry: The NEC alleges that the majority misinterpreted and misapplied the test for making amendments to the Niagara Escarpment Plan, which led the Majority to err in permitting the deforestation of 32.8 hectares of significant woodland as part of its approval of the Walker Quarry. This issue should be reviewed by the Court on a standard of reasonableness.
(2) Error in Delegating the Adaptive Management Plan Decision to the Minister of Natural Resources: The NEC alleges that the Majority erred in delegating the finalization and final approval of the Adaptive Management Plan (the “AMP”) to the Minister of Natural Resources. Briefly, an AMP is a document that determines monitoring requirement and mitigation measures to be implemented by the quarry operator in the event of environmental impacts. In its decision, the Joint Board directed the Minister to finalize the AMP document and associated third party agreements, while failing to consider whether the Minister has the authority to do so. This issue should be decided by the Court on a standard of correctness.
The relief sought by the NEC is:
(1) An order quashing the June 17, 2012 decision of the Joint Board, permitting the conditional expansion of the Walker Quarry, and referring the hearing before a differently constituted panel;
(2) In the alternative, an order quashing the decision of the Joint Board, and remitting the matter back before the same panel to be decided in accordance with the proper interpretation of the relevant statutes; and
(3) Other relief as the Honourable Court deems just.
This summary reviews the NEC’s legal arguments. Paragraph references to the NEC’s arguments are indicated by square parentheses.
(1) Errors in the Test to Allow the Quarry
The NEC submits that “the Majority of the Joint Board erred in its articulation and application of the tests for amending the NEP to change the designation of the quarry site as an Escarpment Rural Area to a Mineral Resource Extraction Area and for issuing a development permit” [59]. These errors are:
(i) Failure to give proper significance to the NEP amendment test;
(ii) Reversal of the onus;
(iii) Disregarding Section 2. 7 of the NEP, “New Development Criteria within Wooded Areas”; and
(iv) Improperly reading-in a “net gain” or ecological compensation approach.
The NEC then argues:
In effect, these errors taken together demonstrate that the Majority sidestepped the NEPDA and NEP, and approached the appeal as though it were a regular planning decision under the Planning Act. The net practical effect of these cumulative errors is that the Majority largely ignored the ‘special legislative significance’ given to the NEP area by the NEP/NEPDA and would permit the removal of 32.8 hectares of provincially significant woodland in what has been designated would [sic.] a World Biosphere Reserve. [60]
These four errors are now considered in turn.
(i) Failure to Give Proper Significance to the NEP Amendment Test
The NEC submits that the Joint Board made “significant errors in its appreciation of the significance and meaning of the three part test” for applications to amend the NEP [61]. Briefly, the NEC alleges that the Joint Board erred in applying the general Provincial Policy Statement (“PPS”) in place of the NEP, the Plan with primacy in the area [75]. The NEC deems these errors significant: “These errors were fundamental to the Board approving the removal of a significant woodland to allow for a quarry in the Niagara Escarpment Plan area” [78].
The three-part test to amend the NEP, e.g. Escarpment Rural Area to Mineral Extraction Area, allows an amendment only if: (1) the amendment is consistent with the purpose and objectives of the NEPDA/NEP; (2) the amendment is justified; and (3) the proponent has discharged the onus of demonstrating that a proposed amendment will meet the purpose and objectives of the NEPDA/NEP and other relevant Provincial policies.
Significantly, the NEC states: “the Majority refused to give any meaning to the purpose and objectives of the NEP but rather preferred to rely on the PPS which it viewed as more rigorous” [63]. The NEC alleges the Majority’s fundamental errors include:
- Finding that clearer direction for interpreting the three-part test is provided by the PPS [65];
- Holding that the PPS “no negative impact test” is the “determinative” test to apply [66];
- Refusing to interpret or attach any special significant to the terms “maintenance”, “maintain and enhance”, and “unique ecological areas” in the purpose of the NEP [73].
It is the opinion of the NEC that this incorrect reasoning led the Majority to rely principally on the PPS and disregard the primacy of the NEP, and fail to give meaning or significance to the purpose and objectives of the NEP [68-69]. The Majority “failed to assess whether the NEP provides greater protection to the woodland” [76]. Had the Majority had proper regard to the NEP, “they ought to have found that the NEP is ‘more rigorous’ or more protective than the ‘no negative impacts’ test under the PPS” [74].
The NEC concludes its argument with further examples of “environment first focus” policies in the NEP to support its legal argument that greater protection is owed to woodlands within the NEP than provided for in the PPS “no negative impact test” [78].
(ii) Reversal of the Onus
Per the NEP, the proponent (Walker Aggregates Inc.) had the onus of demonstrating that the quarry meets the purposes and objectives of the NEP. The NEC alleges that the Majority effectively reversed the onus:
The Majority’s approach was effectively to allow the quarry, unless it could be demonstrated that doing so would be contrary to the NEP. This error is compounded by the fact that, as submitted above, the Majority consistently refused to give effect to the NEP, preferring the PPS. [83]
Instead of requiring the proponent to make its case that its quarry would not offend the purpose and objectives of the NEP, the Majority focused on its finding that there was no compelling evidence that the quarry would offend the purpose of the NEP. Effectively, the Majority decision implies that a quarry is granted as-of-right, unless there is evidence that it should not be there.
(iii) Disregarding NEP Section 2.7 “New Development Criteria within Wooded Areas”
The NEC submits the Majority disregarded a “crucial” criterion for the issuance of a Development Permit- Section 2.7 of the NEP. [84] The Majority determined “without any authority or support whatsoever, that section 2.7 of the NEP, ‘New Development Criteria within Wooded Areas’ was ‘more oriented toward traditional and smaller scale developments and is not completely applicable to a quarry proposal’”. [85]
The objective of section 2.7 of the NEP is “to ensure that new development should preserve as much as possible of wooded areas”. Section 2.7 also provides that “…proposed developments in heavily treed areas shall have site plan arrangements containing specific management details regarding the protection of existing trees.” [20]
In closing at paragraph 87, the NEC argues:
The disregard for the most directly applicable Development Criteria in the NEP to the significant woodland issue is yet another example of the Majority’s failure to properly interpret the NEP.
(iv) Improperly Reading-in a “Net Gain” or Ecological Compensation Approach
The NEC submits that the Joint Board erred in applying a net gain approach to allow 32.8 hectares of significant woodland to be cut down and replanted elsewhere to permit the development of the Walker Quarry. The net gain or “ecological compensation” approach of the Joint Board is the concept of compensating for the removal of significant woodland (including wildlife habitat) through the planting of trees elsewhere, even outside of the NEP area. [90]
The NEC argument outlines how a “net gain” approach is inconsistent with the applicable purpose and objectives of the NEP, and the environment first objectives of the NEPDA/NEP. [96-97]
The NEC refers to the recent Re Nelson Aggregate Co., 2012 CarswellOnt 12881 decision to bolster its argument that the NEP does not include the concept of “net gain”, and that the PPS has no provision for “net gain” to offset the requirements of “no negative impact”. [95]
The NEC concludes its submission on this legal error at paragraph 97:
The Majority, however, refused to interpret or give effect to the provisions of the NEPDA/NEP that set out these objectives and instead applied the balancing approach set out in the PPS. Accordingly, the Applicant [NEC] submits that the Board erred in applying the “net gain” approach.
(2) Error in Delegating the AMP to the Minister
Briefly, an AMP is a document that outlines how a quarry operator will monitor the environmental impact of its quarrying operations, and respond in the event of environmental impacts. “An AMP has been described as a ‘flexible system of mitigation and monitoring’” that has been included as a finalized condition to an aggregate licence. [99]
At the Hearing, the Joint Board considered the proposed draft Walker AMP to be a ‘fundamental’ part of the application and was aware that the AMP was a matter of considerable controversy between the parties. [106] However, the Joint Board failed to issue a decision on the AMP, and instead deferred the finalization of the AMP, a condition of the licence, to the Minister, effectively precluding parties from commenting on the final proposed AMP. [106]
The NEC argues that “the Majority improperly sub-delegated the finalization of the AMP to the Minister of Natural Resources” since the Aggregate Resource Act provides no authority for the Minister to finalize the AMP, or the Joint Board to delegate this task to the Minister. [98]
At paragraph 105:
By directing the Minister to issue a licence with a requirement that the Minister make modifications to and finalize the AMP “to the satisfaction of the Minister”, the Joint Board required the Minister to do more than refuse to impose conditions…By deferring the finalization to the Minister as it [the Joint Board] did, the Joint Board exceeded their deferral power…and improperly sub-delegated the task of modifying and approving the AMP.”
The NEC submits “This improper sub-delegation resulted in a breach of procedural fairness” [98], and explains how at paragraph 106:
This improper sub-delegation prevented the parties from making submissions to the Joint Board on the final AMP contrary to their rights under the Statutory Powers Procedure Act. The Joint Board… effectively prevented a hearing of the deferred matter without first deciding that the matter [the AMP] was not in controversy.
Donnelly Law will continue to report on the case and the parties’ submissions. CCC will submit its argument on March 22, followed by Walker and other respondents on April 15, 2013. The case will be argued before the Divisional Court on April 25, 2013.
Heritage Vision Gone Missing in Seaton
Provincial Promise to Respect Whitevale Heritage District Buried under Urban Sprawl
Whitevale, Ontario -- Monday, January 28, 2013 marks the start of Phase 2 of the Ontario Municipal Board hearing into the colossal, taxpayer funded development known as Seaton, a.k.a. the Central Pickering Development Plan. Residents of Whitevale have intervened to try and save one of Ontario’s best remaining heritage districts and agricultural land in the Hamlet of Whitevale.
“It’s all well and good to compensate developers for preserving the environment of Richmond Hill with a land swap for valuable agricultural land in Pickering, but that swap came with a promise that the farmsteads and Heritage District of Whitevale that we worked so hard to create would be preserved,” exclaimed Marion Thomas representative of the Whitevale and District Residents’ Association (WDRA), a party to these hearings.
“Proceeding under the Ontario Planning and Development Act, no matter what the result of the hearings, they can easily be overturned by Cabinet and should be if Pickering is allowed to approve incompatible development on the land surrounding Whitevale Hamlet ”, Thomas added.
In 1890, Whitevale contained a stave and heading factory; a barrel factory; three general stores; a wagon and carriage factory; a cheese factory; the butcher shop of Israel Burton and the tinsmith shop of S.B. Wigmore; two blacksmiths; two wagon shops; a school house; undertakers; harness shop; grist mill; brush factory; grindstone factory; barber shop; three dressmakers; three gardeners; money order and post offices; hotel; brass band; two churches and four lodges.
Then in the early 1970’s, a heart wrenching expropriation of heritage properties led to the creation of the Seaton Land Preserve. Many of the farms and homesteads had been passed down through generations, along with 25,000 acres of prime farmland – some of the best in North America.
Now, four decades later, the province is poised to move one large step closer with plans for a mammoth, sprawling development in North Pickering.
“In Ontario, we protect outright Class III wetlands but carelessly allow heritage landscapes to be paved and negatively impacted by nearby incompatible development” said David Donnelly, counsel for the WDRA.
“This case turns on the crucial point of whether an old-fashioned guarantee given to the community of Whitevale by the province to preserve our history is worth the barrel-head it was signed on”, Donnelly added.
Community groups such as the WDRA worked in good faith with the province in an effort to be part of a development that could be truly sustainable. Residents feel the new development does not measure up to expectations.
Phase 2 of the hearing is expected to last two weeks. Phase 3 will deal with the critical issue of whether Whitevale will be inundated with the scourge of commuter traffic from new sub-divisions nearby.
The WDRA is a small community organization committed to preservation of Canadian heritage, protection of farmland and a commitment to sustainability for future generations.
Background
Over the past 30 years, more than two million acres of Ontario farmland has been lost to non-farm developments such as urban expansion and mineral aggregate extraction. We continue to lose more than 100 acres, or one farm, per day. In the GTA alone, more than 2,000 farms and 150,000 acres of farmland were lost to production between 1976 and 1996.
Whitevale and District Residents' Association Website: http://www.whitevale.ca/index.html
Environmentalists, developers watch closely as the region goes to court over extent of sprawl
WATERLOO REGION — Environmentalists are watching closely as the Region of Waterloo goes to court to defend its vision of a more urban, walkable and transit-supported landscape from developers who want to build more car-dependent suburbs. A recent decision handed down by a provincial tribunal sided with the developers, opening up 1,053 hectares (2,593 acres) of land for new housing between now and 2031. The region wanted to keep that expansion down to 85 hectares (197 acres).
The region announced earlier this week it will ask the Divisional Court to overturn that ruling. At the same time it will ask the tribunal — the Ontario Municipal Board — for a rehearing.
Read the full article here:
Donnelly Law in the Ontario Bar Association's Environews
Read Donnelly Law's article discussing two recent quarry decisions in the Niagara Escarpment in the latest edition of Environews, the newsletter of the Ontario Bar Association Environmental Law Section. The link to the full article follows this exerpt. "Two recent decisions of the Joint Board pursuant to the Consolidated Hearings Act1 create a very confusing legal landscape, with the future direction of development approvals on the Niagara Escarpment hanging in the balance. Very similar facts and arguments in both hearings led to very disparate decisions and a potentially precedent-setting judicial review application by of one of the decisions the Niagara Escarpment Commission ("NEC").
In Walker Aggregates Inc.("Walker"), the proponent applied for approval of a 42 million tonne quarry on the highest point of the Niagara Escarpment in the Township of Clearview, near the village of Duntroon. Donnelly Law represented the Clearview Community Coalition ("CCC"), a citizens’ group opposed to the new quarry. CCC summonsed the Environmental Commissioner of Ontario to provide evidence on the protection of natural heritage features, Ministry of Natural Resources ("MNR") policy, and planning principles.
In Nelson Aggregate Co. ("Nelson"), the proponent applied to quarry approximately 26 million tonnes on Mount Nemo, in the City of Burlington. We represented Sarah Harmer’s citizens’ organization, Protecting Escarpment Rural Land ("PERL").
Both hearings spanned over a year, with hundreds of exhibits, and dozens upon dozens of expert witnesses. In both cases, the NEC, local Conservation Authorities and citizens’ groups opposed the respective quarries. In the case of Nelson, PERL was joined by Halton Region and the City of Burlington in opposition. In both cases, the MNR withdrew its opposition to the development proposals just before the hearings commenced. The MNR’s tacit support of the two quarries sets up a new debate between the NEC and MNR over who has the final word on the protection of the Escarpment.
Read the full article here: http://www.oba.org/en/pdf/sec_news_env_dec12_Quarrying_Donnelly_Sabourin.pdf
Blue Shark Skates to Save the Porbeagle
Torontonians Show their Support at Nathan Phillips Square
Toronto-- Hector the Blue Shark appeared today for a skate on Toronto’s favourite outdoor rink in Nathan Phillips Square. The spokesfish for the Friends of Hector campaign came to ask Torontonians to send a message to Canada’s government: stop obstructing international efforts to protect the endangered porbeagle shark.
The porbeagle spends much of its life in Canadian waters, and is often referred to as “Canada’s shark”.
Hector skated to raise awareness that Canada is the only country in the world that maintains a directed fishery of this endangered species, and to protest further shark finning.
At the 18th Special Meeting of the International Committee for the Conservation of Atlantic Tunas (ICCAT) November 12th-19th, 2012, Canada was the only country out of 48 Member States to maintain a directed fishery for the porbeagle shark. In fact, Canada single-handedly blocked the consensus of the 47 other countries to stop fishing.
Over 20,000 Canadians sent letters to Acting Minister of Fisheries and Oceans, Gail Shea, expressing outrage at Canada’s position.
“The Atlantic-wide ban, proposed by the EU at the 2012 ICAAT meeting, would have given the slow-to-reproduce shark the best chance to recover and help close loopholes allowing porbeagle fishing in international waters”, said Shannon Arnold, Marine Program Coordinator of the Ecology Action Centre in Halifax. “We hope the Minister of Fisheries and Oceans will now take the decisive action Canadians demand.”
“The shark fin ban is another proud moment in Toronto’s history of speaking out against dumb policy, whether it’s women’s right to vote or the 1992 northern cod stock collapse. Protecting the porbeagle shark is another chapter in the world-wide shark ecology movement”, said David Donnelly, principal at Donnelly Law.
On October 25, 2011, City Council enacted a by-law prohibiting the possession, sale and consumption of shark fin or shark fin food products within the City of Toronto. The shark fin by-law, banning the consumption, sale and possession of shark fin or shark fin products, was declared invalid by the Ontario Superior Court of Justice on November 30, 2012.
Background
The porbeagle shark spends most of its life in Canadian waters, from northern Newfoundland and into the Gulf of St. Lawrence.
Research has tracked the precipitous decline by up to 89% in Canadian waters. Even without fishing, the porbeagle shark will take decades to recover to previous population levels.
The porbeagle shark was assessed as endangered by the Committee on the Status of Endangered Wildlife in Canada (COSEWIC), but the Minister of Fisheries and Oceans did not follow the advice of this expert committee to list the porbeagle as endangered under the Species at Risk Act. Canada is the only country in the Atlantic that maintains a directed fishery of this endangered species. Fishing for porbeagles is banned in the European Union and the Mediterranean Sea.
Canada also allows hundreds of porbeagles to be landed as bycatch in fisheries that target other fish like swordfish and tuna. In 2010, the total bycatch of porbeagle sharks was approximately 60 tonnes, three times the amount captured by Canada’s direct fishery.
For more information contact:
Shannon Arnold, Ecology Action Centre, 902-446-4840, sharnold@ecologyaction.ca
David Donnelly, Donnelly Law, 416-722-0220, david@donnellylaw.ca
Anti-SLAPP Bill launched in Ontario: A Big Step Forward for Democratic Rights in the Province
Toronto - Today, environmental groups applauded a proposed new law that would allow Ontario citizens to speak out to protect the environment and their health without fear of damaging lawsuits meant to intimidate them. Yasir Naqvi, Member of Provincial Parliament for Ottawa Centre, today tabled a private member’s bill – the Protection of Public Participation Act - that targets Strategic Lawsuits Against Public Participation (SLAPPs). SLAPPs are civil suits of dubious merit, generally intended to censor, intimidate or silence critics and prevent individuals from voicing concerns about public interest issues. Often in the form of defamation suits, they stifle citizen participation in public decision-making.
"These suits impede public participation in the democratic process and expose SLAPP victims to unnecessary financial and emotional costs," said Hugh Wilkins, staff lawyer with Ecojustice. "Ontario is stronger when its citizens can exercise their right to clean land, air and water without fear of a SLAPP."
These types of lawsuits have been used when citizens report environmental violations, file complaints with government agencies, work to educate the public about an issue, or speak at a public meeting. In 2010, the Attorney General convened an expert advisory panel that strongly recommended the enactment of anti-SLAPP legislation. The bill tabled today adopts the recommendations of that panel, which include a faster process for dismissing SLAPPs, strong disincentives for initiating them, and guidelines for judges on how to address them.
The Environmental Commissioner of Ontario, the Association of Municipalities of Ontario and Ontario Bar Association have all called for anti-SLAPP legislation.
"When a company sues an organization or individual in order to intimidate them, we all lose. Ontario needs people unafraid to advocate for a healthier and more vibrant society," said Shane Moffatt, a campaigner with Greenpeace Canada.
"Lawsuits without merit that are meant to bully people from exercising their rights must be stopped," said Maude Barlow, National Chairperson of the Council of Canadians. "There is no place for that type of conduct in our society."
SLAPPs are on the rise in Ontario. An example was the almost $150 million in lawsuits filed against multiple opponents of the Big Bay Point mega-marina, in Innisfil, on Lake Simcoe. All the suits were either dropped or dismissed by the courts for inactivity, with costs against the developer.
"Ontario residents’ rights under the Environmental Bill of Rights are violated every time a SLAPP chills a fair and open environmental decision-making process," said David Donnelly, counsel to Environmental Defence. "Many jurisdictions in North America have banned SLAPPs after having to put up with frivolous cases that never reached a judge or jury," Donnelly added.
"Anti-SLAPP legislation will save costs for the justice system by ensuring the early dismissal of these meritless lawsuits," said Ramani Nadarajah of the Canadian Environmental Law Association (CELA). "The private member's bill will protect citizens and groups who are engaging in public debate and is vital to Ontario's democracy."
Victory for the Escarpment
Nelson Quarry application has insufficient provisions for endangered species, wetlands and woodlands protection Toronto, ON – Environmentalists and community members are overjoyed by today’s decision of the Joint Board to protect Burlington’s Mount Nemo and Jefferson Salamander breeding ponds on the farm of the Harmer family. The decision denies Nelson Aggregate’s proposed 26 million tonne quarry on the 82 hectare site.
“The Board’s decision is balanced and in keeping with our belief that development on the Niagara Escarpment, a UNESCO World Biosphere Reserve must be harmonious with the features and functions of the natural environment. The decision is PERL’s dream come true,” said Sarah Harmer, a founder of Protecting Escarpment Rural Land (PERL), and hearing witness.
The Board’s decision gives Mount Nemo and its rare and endangered species a chance to breathe after a century of quarrying. This decision also protects the unique ecological functions of the Escarpment that cannot be replaced by planting trees nearby, which was originally proposed by Nelson Aggregates to offset its negative environmental impact.
“This is a true victory for the Escarpment and all the public agencies that worked to protect Mount Nemo, a gem of the Greenbelt in southern Ontario,” said Dr. Rick Smith, executive director of Environmental Defence. "It shows that the Niagara Escarpment Plan, a cornerstone of Ontario’s earliest environmental protection efforts, is still relevant and strong."
PERL and Environmental Defence attributed today’s win to the persistent and expert advocacy of Halton Region, the City of Burlington, Niagara Escarpment Commission, Conservation Halton and all the participants that testified against the development.
“We’re ecstatic with this outcome. It sets a new course for development on the Escarpment, making clear that the Niagara Escarpment Plan contains specific provisions that offer additional aspects of environmental protection in Ontario,” said David Donnelly, counsel to Environmental Defence and PERL during the 15-month hearing.
“The public was right, Mount Nemo is the wrong place for another destructive, below water table quarry,” said Roger Goulet, executive director of PERL.
Nelson presented a lengthy case in favour of the new quarry. In total, 60 witnesses, including 47 experts were called to the witness box.
The decision strongly supports the dissenting decision of Vice-Chair Robert Wright, in the Walker Aggregates Ltd. decision of the Joint Board that surprisingly approved a new quarry on the Escarpment. The Walker decision is being appealed by the Niagara Escarpment Commission.
About PERL (www.perlofburlington.org): Protecting Escarpment Rural Land is involved in a number of initiatives to help protect the Niagara Escarpment for future generations. PERL retained Order of Canada architect Douglas Cardinal to help it devise a “Vision for Mount Nemo” that would allow Nemo’s industrial past to be transformed into a sustainable, ecological future.