Halifax could become a ‘second-rate’ city: Experts

Jennifer Taplin - Metro Halifax A pair of urban sprawl experts descended on Halifax Thursday with dire warnings.

Environmental lawyer David Donnelly and author Bruce Lourie, both of Toronto, said Halifax is at a tipping point.

“Bruce and I are convinced Halifax is at a dangerous crossroads and that you’ve already tipped into a predominant suburban community,” Donnelly said.

“Your trend is alarming. It’s full flight from the downtown for businesses and the few residents you are attracting are not sufficient to reverse the tide.”

The pair was in town to speak at the 10th-annual Carmichael Lecture, but conducted media interviews beforehand.

Sprawl means people aren’t walking (which creates health issues) and suburban areas can have more crime because less people are out at night, said Lourie. He added suburbs don’t have as many services like transit and commuting times are long, which means wasted hours and greenhouse gases.

Halifax is good at looking back, but the future of the downtown core isn’t a pretty picture, Donnelly said.

“No offence but to be so focused on protecting the viewshed of a relatively minor colonial fortress when you have a waterfront, a spectacular ocean front, seems to be slightly reversed priorities in my opinion,” he said.

The solution involves greenbelt legislation copied after Ontario which outlaws bedroom communities, Donnelly said.

“If Halifax doesn’t take dramatic steps which involves cooperation with the province and legislation, then Halifax could be on its way to becoming a second-rate bedroom community like Toledo, Ohio or Buffalo, New York.”

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Metro Halifax: http://richmobile.metronews.ca/halifax/local/article/859297

NS: Smart Growth and Environment Focus of Downtown Lecture Tonight

DHBC's 10th Anniversary Carmichael Lecture to talk about managing urban sprawl

Peter Clarke, The Daily Business Buzz

[HALIFAX, NS] - There are many arguments for and against the expanding urban sprawl of the Halifax Regional Municipality – it can’t be stopped and development is good but there are always unintended side effects.

Tonight is the 10th Anniversary Carmichael Lecture put on by the Downtown Halifax Business Commission in partnership with the Ecology Action Centre where guest speakers David Donnelly and Bruce Lourie from Toronto will speak about managing the urban sprawl and their experiences with the issue in Ontario and on how urban growth can affect the environment.

The expansive sprawl can deplete farmable land, natural resources and environments and can lead to an increase in pollution in both air and water said Donnelly, an environmental layer and an advocate for smart growth in Canada.

“Halifax has a bit of a unique situation because it hasn’t lost and won’t lose thousands of acres of farm land,” said Donnelly.

He said Halifax does have three issues facing it however: he said the traffic congestion is comparable to Toronto in terms of commute times for people, the natural core surrounding Halifax has been “cut to shreds” and that a significant amount of jobs are migrating out of the city and into surrounding suburban areas.

“Halifax should be scared out of its wits that the tide is going out on its downtown,” he said.

He added that in Ontario, the provincial government had to legislate against sprawl with its Places to Grow Act which required by law a 60 – 40 split between sprawl expansion and adding to density of a central area.

“If Halifax doesn’t follow suit, it could end up being the Detroit Michigan of the Eastern Seaboard,” he said.

While the effect the legislation has had on Toronto’s downtown itself isn’t very notable, it has had a greater impact on the smaller satellite communities in the Greater Toronto Area such as Vaughn.

Donnelly and his co-speaker Lourie were both instrumental in creating the “greenbelt” in Toronto. Greenbelts are essentially boundaries and limits on development that keep natural spaces within cities and around them and essentially put an invisible wall around and urban area to encourage density development as opposed to sprawling.

To improve its downtown, Donnelly says Halifax has a few advantages that some other cities don’t: He said it is a unique city in that it’s the only game in town with no similar cities in close proximity. It also has an underdeveloped waterfront and downtown that could bolster the city’s fortunes if developed right.

One big step for Donnelly though would be an adjustment to the taxes – it is universally true across many cities that taxes are very high in the downtown area for both residents and businesses.

“It hurts me to say but if I was advising a client on where to set up a business I would be sorely tempted and probably bound to recommend a suburban area,” he said

One local group would like to see Halifax develop what it already has before it continues expanding.

“It cuts into green space - threatening sensitive areas and ecosystems,” said Jen Powley, sustainable transportation coordinator at the Ecology Action Centre.

The EAC is advocating for smart development.

“We would like to see developments not cutting into new areas,” she said.

New developments require lots of extra resources such as new water and sewer systems, secondary streets and power connections, while meanwhile she said there are 23 vacant lots in the downtown area which she thinks would be a much better use of building materials.

Carmichael Lecture is happening tonight at the Westin Hotel on Barrington Street from 6:00 to 8:00 p.m. The event is free of charge and open to public on a first-come, first-served basis.

Along with managing Halifax’s urban sprawl Donnelly and Lourie will touch on other topics such as the architecture of green belts – their functions and policies.

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The Daily Business Buzz: http://www.ns.dailybusinessbuzz.ca/Provincial-News/2011-05-12/article-2499763/NS%3A-Smart-growth-and-evironment-focus-of-downtown-lecture-tonight/1?newsletterid=203&date=2011-05-12-06

Curbing HRM Urban Sprawl ‘Essential’

Environmentalists to deliver Carmichael lecture tonight on city’s growth

By BILL POWER Business Reporter, Chronicle Herald

Halifax runs the risk of becoming the Detroit of Canada’s East Coast if it doesn’t get tough about suburban sprawl, environmentalist David Donnelly said Wednesday.

"The government of Ontario has learned the hard way that one of the greatest Ponzi schemes out there is for developers to stick a subdivision out in the middle of nowhere and then get somebody else to pay for services," said Donnelly.

Donnelly and Bruce Lourie, an ecology activist and writer, will discuss urban sprawl and why it matters to the downtown core at the 10th Anniversary Carmichael Lecture, presented by the Downtown Halifax Business Commission in partnership with the Ecology Action Centre.

The lecture is scheduled to begin tonight at 6 p.m. at the Atlantic ballroom at the Westin Nova Scotian. The event is free and open to the public.

Donnelly and Lourie were instrumental is establishing the Greater Toronto Area’s greenbelt, which is expected to have a major impact on how that city reinvigorates its downtown.

Donnelly said in an interview Halifax must establish a boundary for urban growth and enforce it, otherwise developers are going to continue looking further afield where their costs are cheaper.

"A clear line for urban development is essential," he said. "Otherwise cities are forced to finance infrastructure in remote areas while their inner cores continue to deteriorate."

The situation in Detroit is a good example of how a deteriorating core can depress the entire community, he said.

A review of the Halifax Regional Municipality regional plan is scheduled for 2011.

"As HRM continues to grow, so the challenges of balancing downtown revitalization, regional growth, transportation and environmental and economic sustainability," Paul MacKinnon, the business commission’s executive director, said in a news release on the lecture.

Kate Carmichael was executive director of the commission and died in 2001. This year’s lecture marks the 10th anniversary of her passing.

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Chronicle Herald online: http://thechronicleherald.ca/Business/1242885.html

Simcoe Process to Create Sustainable Planned Growth

Environmentalists See Potential in McGuinty Government Review of Simcoe Growth Plan

Toronto, ON – Environmental groups around Lake Simcoe are cautiously optimistic about the McGuinty government's decision to refer future population and employment allocations to the Office of the Provincial Development Facilitator (PDF) for an impartial review. While this might be a victory for those who want to ensure families in the Simcoe area enjoy sustainable economic and smarter urban growth over the next 20 years, it may also provide developers with an opportunity to be more aggressive in their lobbying.

The PDF will meet with municipalities and other stakeholders to determine the most appropriate outcome for Simcoe Region.

It is important that the PDF hear from citizens groups. Environmental Defence reports indicate that the largest contributor to municipal election campaigns is the development community, so there are concerns that municipal representatives will be pro-growth as a result of this influence. By speaking to the PDF, citizens and environmental groups bring another greener perspective.

While municipalities all want higher population and employment allocations, there is evidence that citizens want residential growth to "green up" and slow down. A November 2007 Environics survey polled 200 Innisfil residents and revealed that 68% of Innisfil residents cited too much growth as their major concern.

"Now that Premier McGuinty has taken charge of the Lake Simcoe protection issue, he needs to make sure that any housing or employment developments on farmland and natural spaces meet high environmental standards. That is what Lake Simcoe needs, and that is we are hoping for,” said Dr. Rick Smith, Executive Director of Environmental Defence.

"Nobody wants to see more rows of urban sprawl and the increased traffic congestion it brings in the Lake Simcoe drainage basin.  Why not insist that approvals of future growth use Ontario's modern job-creating green industries, use the latest sustainable building techniques, and promote the development of compact communities?" Smith added.

"Residents from Innisfil have shown they are willing to pay from their own pockets for better sewage treatment, if the development it serves improves the quality of the lake," said Claire Malcolmson, President of the Rescue Lake Simcoe Coalition and Innisfil resident.

"The PDF can ensure that new development is not awarded to the shrewdest lobbyist, but to the development proposal that considers the widest possible range of growth planning issues, with a healthy Lake as the centrepiece. We are, however, concerned that this course of action punts the hard decisions to a bureaucrat to deliver recommendations right after an election. Who is the government more worried about disappointing here, the voters of Simcoe County, or the developers that help finance so many campaigns?”Malcolmson added.

In January 2011, Environmental Defence, the Rescue Lake Simcoe Coalition, Ontario Nature and AWARE Simcoe made submissions under the Environmental Bill of Rights (EBR) asking the Minister of Public Infrastructure Renewal (PIR) to focus on reviewing the allocation of the population and employment forecasts for the lower tier municipalities in the County of Simcoe, as set out in Schedule 3 of the Growth Plan for the Greater Golden Horseshoe.  The Schedule identifies how to manage the oversupply of land and to develop alternative intensification and density targets for the designated farmland and natural areas in Simcoe County.  Its objective is to ensure the creation of more compact, mixed use communities that meet a higher green building and community design standard.

The EBR submission calls for greater effort to establish where the jobs really are, and to locate future residents close to those jobs to prevent a further explosion of "bedroom communities" along the already dangerously congested Highway 400.

The Ministry of Infrastructure's press release is available here: http://news.ontario.ca/moi/en/2011/03/news-release-march-25-2011.html

ABOUT ENVIRONMENTAL DEFENCE(environmentaldefence.ca):  We are Canada's most effective environmental action organization. We challenge, and inspire change in government, business and people to ensure a greener, healthier and prosperous life for all.

Proposed Amendment 1 2010 to the Growth Plan for the Greater Golden Horseshoe

Environmental Defence submits its comments on Province's proposal for Simcoe County growth

On January 31, 2011, Environmental Defence submitted its comments through the EBR on the Ministry of Infrastruture's Proposed Amendment 1 to the Growth Plan, which is intended to curb sprawl in Simcoe County. The following is the Executive Summary; a link to the full submission is found below.

"We strongly oppose the most recently proposed Simcoe County Growth Plan population allocations and employment zones, as they represent an unjustified comprise that directs growth almost everywhere.

The proposed growth in Simcoe County sets the stage for very large development projects that will choke Highway 400, endanger Lake Simcoe and foul the air and water of our community. The proposal also runs counter to the Government of Ontario’s own Growth Plan, goals of the Lake Simcoe Protection Act, and the wishes of Simcoe County’s residents who support the Greenbelt Act and Lake Simcoe Protection Act. Finally, the Plan says nothing about reducing the ecological footprint of development such as energy use and water consumption, a long-overdue and necessary reform.

Not all the proposed changes are negative; moving some population allocations out of the stressed Lake Simcoe watershed should relieve some of the pressure it faces, and a 20-year restriction on sprawl via the interim settlement boundary policy is most welcome. However, the health, social and environmental benefits to Simcoe County’s residents from these modest gains are completely obliterated in the rush to allocate unnecessary employment areas along Highway 400 that will only promote sprawl, traffic congestion and bad air; allocating insufficient population densities that make meaningful public transit options unviable; insufficient transitional planning that leaves loopholes wide open for abuse by developers; and, the lack of a green building standard to reduce the impact of new developments the province expects in the watershed over the next 20 years.

Modest Improvements:

• Some population moved out of Lake Simcoe watershed;
• Some population allocations went to northern communities, albeit at too low
• densities;
• Restricting sprawl to land needed for 20 years, through the creation of interim
• settlement boundaries, via policy 6.3.2.2.

Recommendations:

• Population allocations must consider the assimilative capacity of the receiving bodies of water, and must not result in an increase in Phosphorus to Lake Simcoe;
• Do not proceed with employment areas on Highway 400. They are unnecessary and will lead to further sprawl and unsustainable development;
• Establish clear transition rules from the “Wild West” of planning that exists now to the framework proposed in this Amendment, and make implementation of the Amendment fair in all communities;
• Extend the requirement under the Lake Simcoe Protection Plan to undertake environment assessments on supporting infrastructure before approving land use designations, to all of Simcoe County and especially for the Big Bay Point mega-marina and resort;
• Do not decrease the density allowed anywhere in this plan, and instead increase density targets to 75 jobs and residents per hectare (j&r/ha) and use that number as a condition for future population allocations;
• Introduce a community design, water/wastewater management and green building standard against which population allocations can be assessed; and,
• Grow the Greenbelt in communities contiguous to the existing Greenbelt for example, Bradford West Gwillimbury.

The complete submission can be accessed here: Environmental Defence Growth Plan Simcoe Amendment EBR Response

Expert panel recommends strong anti-SLAPP law

Environmental groups call on Ontario government to deliver

TORONTO – Environmental groups applaud the strong recommendations put forward today by the Ontario government’s expert advisory panel aimed at protecting citizens from strategic lawsuits against public participation (SLAPPs). They now call on the McGuinty government to deliver a new anti-SLAPP Act as soon as possible.

SLAPPs are legal proceedings that have the principal effect of silencing public discussion on issues of public significance. They threaten and undermine well-established public participation rights by improperly using the judicial system to dissuade citizens from taking part in public decision-making processes by creating an unfounded fear of legal consequences or adverse costs.

“A strong anti-SLAPP law would stop abuses of the justice system and protect the voices of citizens on important public interest issues,” said Ecojustice staff lawyer Hugh Wilkins. “The recommendations of the advisory panel lay the groundwork for strong protection. Now the government needs to turn those recommendations into law.”

Public demand for an Anti-SLAPP Act has garnered support in the past year, with more than 60 organizations recently signing a letter to Premier McGuinty requesting protection from SLAPP suits. Many of the organizations have experienced legal threats and bullying from oppositional interests in their various efforts to protect the environment, human health or community priorities.

Ecojustice and the Canadian Environmental Law Association (CELA) have released their recommendations to the panel in their report Breaking the Silence available online at www.ecojustice.ca. Environmental Defence also contributed expert testimony to the panel.

All three groups have called for a strong anti-SLAPP law that would guarantee a right to public participation in matters of public interest; allow courts to review and dismiss SLAPP suits expeditiously; and provide strong disincentives against launching SLAPPs in the form of cost awards and punitive damages.

“Right now, those with deep pockets can use SLAPPs to silence opposition even if their claims have no merit,” said Ramani Nadarajah, counsel with Canadian Environmental Law Association Counsel. “This will change when the Ontario government implements the panel’s recommendation.”

Environmental Commissioner of Ontario, Gord Miller, has also spoken out about the intimidation and chill these lawsuits have on community groups calling them a “contagion” in a recent annual report. On a local level, over 65 municipalities, including Toronto, Oakville, Aurora and Hamilton, have passed their own motions to request the province enact an Anti-SLAPP law. If Ontario enacts an Anti-SLAPP Act, it will be joining Quebec and many U.S. states that already have such statutes.

"The experts have spoken. An Anti-SLAPP law has broad support right across the province. It's time for the McGuinty government to deliver. We need the new law introduced and passed as soon as the legislature reconvenes in 2011," concluded Dr. Rick Smith, executive director of Environmental Defence.

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For more information, or to arrange interviews, please contact:

Stephanie Kohls, communications director, Environmental Defence Office: 416-323-9521 x232, cell: 647-280-9521

Hugh Wilkins, staff lawyer, Ecojustice 416-368-7533 x34

Ramani Nadarajah, counsel, Canadian Environmental Law Association 416-488-7106

Kori Brus, communications director, Ecojustice 416-368-7533 x25

http://environmentaldefence.ca/articles/expert-panel-recommends-strong-anti-slapp-law-environmental-groups-call-ontario-government-

New rules will help preserve archeological sites

GARY MAYGlobe and Mail

Imagine developers being told they can build a high-rise condominium overtop Pompeii, or a subdivision above the tomb of King Tutankhamen.

It’s an outrageous thought, yet the destruction of important archaeological sites has occurred time and again across Ontario, say archaeologists and aboriginal groups. Advocates for the preservation of such sites hope standards and guidelines that take effect on Jan. 1 will help to stem thedestruction of more such examples of the province’s historical and prehistoric culture.

But the president of the Ontario Association of Professional Archaeologists warns that the flip-side of the regulations will likely mean it becomes prohibitively expensive for smaller developers to proceed with projects at sites that are suspected of containing important artifacts from past societies.

Scarlet Janusas, a Tobermory, Ont.-based archaeologist, predicted the provincial culture ministry regulations could force developers to shell out 300 per cent more for archaeological studies at some locations to determine the heritage value of a property.

She said if a developer can afford to pay the bill, they’ll pass the expense on to buyers.

Meanwhile, Joe Vaccaro, vice-president of government relations for the Toronto-area Building Industry and Land Development Association (BILD), said development proponents are frustrated by such increasingly costly regulations.

While the cost of archaeological assessment varies according to the size and significance of the site, it’s not unusual for developers to run up bills of several hundred thousand dollars when detailed studies are required under current regulations.

Implementation of the new regulations will come more than three years after the Ipperwash inquiry reported that an estimated 8,000 sites were destroyed between 1951 and 1991 in the Greater Toronto Area alone – one-quarter of which likely merited archaeological investigation.

Archaeologists excavate the site of a proposed housing project at Young Cove near Cobourg, Ont. After the dig, some areas were deemed off-limits for development.— Photos courtesy Advance Archaeology

Toronto lawyer David Donnelly represents the Huron-Wendat First Nation in Ontario and said the province has been shamefully slow to stop that destruction. Mr. Donnelly said the Ontario Planning Act, for example, is “racist and unconstitutional” in its lack of consideration for aboriginal rights.

“It’s ridiculous that [utilities such as] Rogers Cable must be notified of an excavation, but not the First Nations people.”

That will change once the province enforces the tougher standards and guidelines that direct the work of professional archaeologists who must be called in whenever a question arises over a site’s archaeological significance.

Ms. Janusas said the new regulations will require more detailed analysis of significant sites and will certainly cause further delays for developers.

One site where the new rules would have had an impact is a soybean field in the City of Vaughan north of Toronto. The field is the site of what Mr. Donnelly calls “a capital city” of a First Nations society that existed at the dawn of aboriginal-European contact.

Skandatut, as the site is known, is thought to have been a two-hectare, late 16th-century Huron village that sat on a tributary of the Humber River, a place that once supported 100 longhouses and was home to 2,000 or more people. The site is now privately owned and the owner wants to build 204 single-family homes there as part of a larger 1,200-unit community.

Archaeologists declared the site nationally significant in 2006.

Skandatut “holds the key to unlocking many of the mysteries of the aboriginal peoples of Ontario,” said Mr. Donnelly. “To allow work to proceed on this site could be a catastrophe and a national disgrace.”

Yet the lawyer for the developer said his client has followed all the province’s rules. “My client has been unfairly maligned over all of this,” said John Alati. He said Joseph Pandolfo advised the former Huron-Wendat chief “two or three years ago” of his plans.

Under Ontario regulations dating back to 1993, developers of archaeologically significance sites must hire a certified archaeologist to conduct an assessment. The assessment, which begins by reviewing what is already known about the site, can proceed through four stages if it is found to be important enough. At any time during the process, if human remains are discovered, work must stop immediately.

If a licensed archaeologist determines a Stage 4 assessment is required, the archaeologist advises how to remove significant artifacts and whether long-term protection strategies are necessary.

Mr. Pandolfo followed the province’s rules and hired an archaeological firm to undertake a detailed study. But the old regulations never stated that the affected First Nation be advised and consulted during the assessment. The Stage 4 excavation got under way in June, without the Huron-Wendats’ knowledge. Their Ontario spokesman, Luc Lainé, said they only learned of the work by accident.

Fearful that another significant Huron-Wendat site could be destroyed, they wrote to Premier Dalton McGuinty and obtained the support of the Assembly of First Nations, the Ontario Archaeological Society and Dr. David Suzuki, then threatened court action. Last month, the province issued a stop-work order on the excavation, giving the Huron-Wendat six months to come up with a plan to preserve it.

“I hope we can work with Mr. Pandolfo to resolve this,” Mr. Lainé said. But, he added, it should never have reached this point, since the Supreme Court of Canada has already ruled in other cases that First Nations must be consulted when their interests are at stake, and their views considered in any resolution.

Bone tools unearthed at a housing site near Stouffeville, north of Toronto. — Photo courtesy Advance Archaeology

Come Jan. 1, First Nations would have to be advised and consulted in a similar situation.

But Mr. Lainé said that, with perhaps 100 such projects on their plate right now, the Huron-Wendat lack the resources to provide meaningful input into every one of them. They can only select the most important, and he said Skandatut falls into that category.

At other sites, they have had to waive their right to investigate. In some cases, they’ve been aided by other First Nations groups.

That happened at The Narrows in Orillia, when the Rama Ojibwa stepped in after artifacts and human remains were discovered at a luxury high-rise condominium construction site.

“They came in and performed a ceremony,” said developer Mike Bowering of Mutual Gain Corp. “They blessed the spirits and thanked us for our co-operation, and then were on their way.”

But the Orillia site was a Huron-Wendat community, said Mr. Lainé, and had they had the resources, they would have been involved.

If a Stage 4 assessment finds that site protection isn’t an option, the archeologist consultant documents and directs removal of the artifacts before construction may begin. Mr. Alati said his client hopes negotiations can result in resumption of the assessment. He estimated Mr. Pandolfo has already spent $80,000 on Stage 4 alone.

Mr. Lainé said he hopes the village site “will not be disturbed. Let it remain as it is. It could even become an interpretation centre [for the Huron-Wendat culture] some day.”

The case has sent chills through the development community, however, and they’re bracing for what’s to come.

Mr. Vaccaro of BILD said the association of builders and developers has been advised that the stricter provincial regulations “will result in significant costs” to developers, as well as building delays and frustration.

As to whether the regulations will result in developers walking away www.wupoint.com from projects, Mr. Vaccaro said the industry is “much more sophisticated” in identifying potential stumbling blocks than it has been in the past.

Ms. Janusas is “encouraged” by the regulations, which she said should bring consistency to the review process. Government reviewers interpreted the old rules in different ways, she said.

Mr. Donnelly called the changes “an important step” in improving consultation. Added Mr. Lainé: “We’re happy that we must be notified, but what we want is a promise to protect our sacred sites, and that is not there.”

As an indication of how important the guidelines are, Ronald Williamson, chief archaeologist and managing partner for Archaeological Services Inc. of Toronto, pointed out that Eastern Canada has experienced three major flashpoints over land claims in recent decades – Oka, Ipperwash and Caledonia – and in all of them, “the catalysts were sacred site issues.”

Meanwhile, some developers have not only welcomed these archaeological studies, they’ve ended up incorporating their site’s history into their projects. One is Lloyd Jones, a Cobourg, Ont., businessman who partnered with Belleville builder Jamie Brauer on the Prince Edward Estates at Young Cove project in Quinte West, located at a site that was an important portage route for First Nations people and early European settlers.

“I never had any concerns that the archeological findings would be detrimental to our plans,” Mr. Jones said. “Frankly, I was thrilled by the history of the place. I find it intriguing to think that people have been there for so long.”

The archaeologist’s report required him to keep two areas off-limits from development, so they will be left for use by archeologists-in-training as teaching sites, Mr. Jones said.

He said many who have reserved homes at Young Cove (construction has not yet begun) were intrigued to learn the history of their new community. Now, he plans to make that history a feature of the community, with a parade square and a replica of the original blockhouse, called Fort Kente, which sat on the site. He plans an interpretive centre he hopes can display artifacts obtained from the site.

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Globe and Mail Online: http://www.theglobeandmail.com/real-estate/new-rules-will-help-preserve-archeological-sites/article1804183/page1/

A Greenbelt for Nova Scotia

See Donnelly Law's  Presentation on a Greenbelt for Nova Scotia, delivered November 15, 2010

Donnelly Law Comments on Provincial Policy Statement, 2005

Re: Provincial Policy Statement Five-Year Review (EBR Registry No. : 010-9766) We write to provide comments with respect to the above-noted Environmental Bill of Rights (EBR) posting.

Introduction

Donnelly Law practices land use planning, environmental and First Nations law; we represent the Huron-Wendat Nation’s cultural interests in the Province of Ontario. This work is centred on how land use planning and development impacts the Huron-Wendat’s culture and heritage, in particular the destruction of Huron-Wendat Nation burial sites and artifacts.

It is our belief that additional preventative measures must be adopted by individuals, developers and municipalities to prevent further destruction of Aboriginal heritage in Ontario. It is, therefore, crucial that the Provincial Policy Statement, the Province’s foundational land use planning instrument, include safeguards to protect Aboriginal interests in Ontario.

Background and Historical Context

Huron-Wendat Nation

The ancestors of the Huron-Wendat Nation occupied a large portion of southern Ontario for many centuries until A.D.1648.  At this time the Huron-Wendat Nation was forced to leave its territory due to many successive deadly epidemics brought by Europeans, as well as disputes and wars with other First Nations. The Huron-Wendat, archaeologists and historians have identified and documented hundreds of Huron-Wendat sites in Ontario. Dozens of large semi-permanent agricultural cosmopolitan villages (occupied by thousands of people) and their attendant burial sites have been discovered, representing a rich cultural heritage legacy.

The Wendake community (Huron-Wendat Nation) is located about 10 kilometres north of downtown Québec City. It is the only Huron-Wendat Nation in Canada. The number of members is 2,994, of which 1,299 reside on the Wendake territory. The Huron-Wendat Nation is concerned about the potential impact of future development on their ossuaries, cemeteries and occupation sites.

Aboriginal Interests Throughout Ontario

The Huron-Wendat Nation, our client, is not the only Aboriginal community affected by Ontario’s rapid development.  All Aboriginal people that ever occupied lands in the Province have a rich legacy that is under constant threat.

Hunter-gatherers occupied most of Ontario since 2,000 B.C. By 1500 B.C.-1000 B.C., elaborate mortuary ceremonial practices developed, suggesting strong social and community identities. Evidence of large burial mounds exists for southern Ontario populations circa 400 B.C.-A.D. 700 and circa 400 B.C.-A.D. 1650 in northwestern Ontario. After 700 A.D., the practice of forming burial mounds ceased and was replaced with ossuaries, which began around 1300 A.D.

Ossuaries, an Iroquoian burial practice, is “a burial pit containing a mixed deposit of the remains of multiple individuals, which was formed as the result of final burial ceremonies, triggered by events, such as village relocation, the death of a leader, or the reformulation of inter-village alliances. The remains that were incorporated within the ossuary had, for the most part originally been interred elsewhere and were exhumed for inclusion in the ossuary feature. Therefore, the majority of the bones in the ossuary are disarticulated.”[1] Ossuaries are not visible above the land, making identification pre-excavation extremely difficult. Coupled with insensitive planning and development, thousands of culturally significant sites have been destroyed.

Destruction of Aboriginal Sites in Ontario

According to the Ipperwash Sacred Artifacts Report:

Rapid development within the Regional Municipalities of Halton, Durham, Peel and York provides an instructive example of the nature and potential magnitude of the threat that continued landscape change may pose to a finite and non-renewable archaeological resource base. It is possible that some 8,000 sites were destroyed in this area between 1951 and 1991, with the majority of this destruction occurring prior to 1971 … It is  further estimated that approximately 25% of these sites (approximately 2,000) represented significant archaeological resources that merited some degree of  archaeological investigation, since they could have contributed meaningfully to our understanding of the past, or outright protection as they constituted culturally significant places for the First Nation descendents of the people who created them in the first place.  (at page 4)

Culturally important lands are not limited to burial sites. The significance attached to a specific location is influenced by a number of factors, determined by the original inhabitants and their descendants. There may be times that these locations require protection, but their identification may be complicated.

Our recommendations are intended to provide practical guidance while simultaneously recognizing the complexity of identifying culturally significant sites to Aboriginal people.  For this reason, consultation and accommodation – foundations of reconciling Canada’s legal regime with Aboriginal rights and interests – must always be at the forefront of all land use planning and development in Ontario. The recommendations we make in this submission are consistent with the recommendations made by the Ipperwash Inquiry.

Recommendations

Conflicts between Ontario’s Aboriginal peoples and land use planning are not new, especially concerning burial grounds. With the 1995 Ipperwash crisis, it would be impossible to deny knowledge that the impact of development has on Aboriginal burial sites. At page 686 of the Ipperwash Inquiry, it is stated that:

The provincial government and other institutions must redouble their efforts to build successful,  peaceful relations with Aboriginal peoples in Ontario so that we can all live together peacefully  and productively.

The Inquiry continued, at page 687:

Usually, the immediate catalyst for most major occupations and protests is a dispute over a land claim, a burial site, resource development, or harvesting, hunting, and fishing rights. The fundamental conflict, however, is about land.

Including a provision to protect Aboriginal heritage in the Provincial Policy Statement is exactly the type of step the Inquiry is speaking to.

The policy recommendations of the Ipperwash Inquiry included a considerable focus on ensuring cultural and heritage claims are protected. Among these recommendations are:

• The provincial government should work with First Nations and Métis organizations to develop policies regarding how the government can meet its duty to consult and accommodate. The duty to consult and accommodate should eventually be incorporated into provincial legislation, regulations, and other relevant government policies as appropriate (Recommendation 14, emphasis added);

• The provincial government should promote respect and understanding of the duty to consult and accommodate within relevant provincial agencies and Ontario municipalities (Recommendation 15);

• The provincial government should work with First Nations and Aboriginal organizations to develop policies that acknowledge the uniqueness of Aboriginal burial and heritage sites, ensure that First Nations are aware of decisions affecting Aboriginal burial and heritage sites, and promote First Nations participation in decision-making. These rules and policies should eventually be incorporated into provincial legislation, regulations, and other government policies as appropriate (Recommendation 22);

• The provincial government, in consultation with First Nations and Aboriginal organizations, should determine the most effective means of advising First Nations and Aboriginal peoples of plans to excavate Aboriginal burial or heritage sites (Recommendation 25);

• The provincial government should encourage municipalities to develop and use archaeological master plans across the province (Recommendation 26)

With the release of the Inquiry only in 2007, these recommendations were not considered in the last Provincial Policy Statement Review. It is essential that the Provincial Policy Statement be revised to include these recommendations and provide the necessary protection of Aboriginal culture and heritage.

In recognition of the importance of protecting aboriginal interests in Ontario, with specific consideration given to the Ipperwash Inquiry, precedent established by the Milroy private prosecution, and dicta of the court in the Hiawatha decision, we recommend ensuring the Provincial Policy Statement recognizes the current state of the law in Ontario, with explicit reference to the connection between Aboriginal rights, the Constitution of Canada, Supreme Court rulings that require protection of cultural heritage, including how its protection pertains to landscapes and land use.  The current PPS does not reflect the important connection between landscapes to Aboriginal culture.

Section 2.0: Wise Use and Management of Resources states:

Ontario's long-term prosperity, environmental health, and social well-being depend on  protecting natural heritage, water, agricultural, mineral and cultural heritage and archaeological resources for their economic, environmental and social benefits.

In order to achieve the above stated goal, two major changes must be made to the Provincial Policy Statement’s section on Wise Use and Management of Resources:

First, Section 2.6 Cultural Heritage and Archaeology must explicitly address Aboriginal  interests, and

Second, a new section on Aboriginal interests must be created.

To ensure Section 2.6 Cultural Heritage and Archaeology explicitly addresses Aboriginal interests, we recommend the following:

1. “Built heritage resources” and “Cultural heritage landscape”: The definitions of “built heritage resources” and “cultural heritage landscape” must include both pre and post-contact sites and should include in the non-exhaustive list of examples of resources (in the case of “built heritage resources) or landscapes (in the case of “cultural heritage landscapes”) those that may be significant to an Aboriginal community.
2. “Archaeological resources”: The definition of “archaeological resources” must include Aboriginal sites or burial grounds.
3. “Aboriginal interest”: A new definition must be included for “Aboriginal interest”, which includes impacts on aboriginal archaeological heritage and landscapes (Milroy and Hiawatha).
4. Aboriginal engagement: Section 2.6.2 must state that in cases where “development and site alteration” impacts a site of Aboriginal origin, before development or alteration can proceed the party is responsible for engaging the Aboriginal community culturally affiliated with the site.

A new section must address the concerns and recommendations made by the Ipperwash Inquiry, recent court decisions and recent land use conflicts with Aboriginal interests. Accordingly, in addition to the modifications to Section 2.6, we recommend the new Provincial Policy Statement include a new section within Section 2.0: Wise Use and Management of Resources. This requires:

A new sub-section (2.7) entitled, “Aboriginal Significant Cultural Heritage and Burial Sites”

This new sub-section shall ensure that

1. Any action that falls within the Provincial Policy Statement shall be required to consult and accommodate Aboriginal communities whenever the action impacts an Aboriginal interest.

Considering the special nature of Aboriginal burial grounds, it is essential that the new Provincial Policy Statement address this issue specifically. Therefore, this new sub-section must also ensure the following:

2. When an Aboriginal burial ground or sacred site may be impacted, no development, alteration or excavation may occur until meaningful consultation and accommodation is conducted with the Aboriginal community whose interest is affected;

Finally, it is key that municipalities throughout the Province adopt archaeological management plans. The third sub-section we recommend is:

3. Municipalities must develop and use archaeological management plans that ensure development does not occur where there is likely an Aboriginal burial, cultural or heritage site.

******

[1] Ipperwash Sacred Artifacts Report: Aboriginal Burial and Other Sacred Sites in Ontario (Prepared for Founding First Nations Circle) December 2005, at page 11.

Province halts work at indigenous site

Alex Horkay Staff Reporter -Toronto Star The province has issued a stop-work notice at the site of archaeological work at an indigenous village in Vaughan, opening a six-month window for the Huron-Wendat Nation to find a way to permanently protect it from development.

“This is great news and it’s long overdue,” said Grand Chief Konrad Sioui. “We’ve been fighting this for a long time now. There’s lots of sorrow and pain within our nation.”

The property, south of Teston Rd. and west of Pine Valley Dr., is on land that comprises part of a 500-year-old indigenous village known as Skandatut. The area was once home to as many as 2,000 natives and contains remnants of a number of longhouses.

Archaeological work was being done as part of the process required to get approval for a possible development of about 204 single-family homes. They would be part of a subdivision that could add 1,300 homes to the surrounding area.

“At this point we’re certainly looking at our options in terms of fighting the order,” said John Alati, lawyer for Joseph Pandolfo, the property’s owner.

Although the Ministry of Culture and Tourism issued Wednesday’s stop-work order, the work being done was “pursuant to a permit that the ministry issued and pursuant to a licence that the minister granted. The same ministry. So there’s that issue, which is certainly perplexing,” said Alati.

He said Vaughan’s official plan designating the land urban was approved in 2001 and the zoning applications and subdivision plans were filed in 2006.

David Donnelly, a lawyer representing the Huron-Wendat Nation, said, “We applaud the stop-work order, but it is the clear desire of the archaeological, environmental and First Nations’ communities that the minister invoke the Ontario Heritage Act to permanently protect Skandatut.

“If this was Don Cherry’s birthplace, would we even be having this debate?”

Mukunthan Paramalingham, a ministry spokesperson, said, “We have consulted with heritage experts from the Ontario Heritage Trust prior to issuing the stop order.

“The ministry will be using this pause to determine next steps and to continue to encourage dialogue and collaboration between all affected parties.”

***

Published Online Oct. 06, 2010: http://www.thestar.com/news/article/871918--province-halts-work-at-indigenous-site

Mount Nemo Big Step Closer to Being Saved

Niagara Escarpment Commission Votes 11 to 4 in Favour of Processing Citizens' Amendment Toronto – In a precedent-setting decision, the Niagara Escarpment Commission voted to process Protecting Escarpment Rural Land’s (PERL) private amendment application for the Nelson Aggregate Co. proposed quarry site that, if approved, would see a significant part of the Mount Nemo Plateau, on the Niagara Escarpment in Burlington, Ontario, permanently protected.

“The decision to process PERL’s application will allow the proper level of environmental protection to be decided ahead of, or at the same time as, the Nelson Aggregate Co. quarry application, in accordance with the precautionary approach,” said Dr. Rick Smith, Executive Director of Environmental Defence. PERL hopes to obtain a re-designation of the provincially-protected Jefferson Salamander habitat, regionally significant woodland, Provincially Significant wetlands and Halton Region Natural Heritage System to Escarpment “Protection” and “Natural” on the site, both of which prohibit mineral extraction.

Burlington Mayor and Halton Regional Councillor, Cam Jackson, presented two unanimous Council resolutions supporting PERL’s application as a “first step” to protecting the entire Mount Nemo Plateau.

Commissioner Alan Elgar tabled the motion and affirmed, “It is our job to implement the NEPDA [Niagara Escarpment Planning and Development Act], and its purpose is to ‘maintain the Niagara Escarpment substantially as a continuous natural environment’.”  After the vote, Elgar announced, “This is a precedent-setting decision and it is the right one. It says: the NEC will process applications in accordance with the Act that are in keeping with its purposes.”

“We could not be more impressed with the Commission,” stated Roger Goulet, Executive Director of PERL. “We must get the land-use designations right before decisions are made on development applications. This is what we have been saying for years.”

Many environmentally sensitive areas within the Niagara Escarpment Plan area would be protected by today’s standards and science but are left vulnerable to development by the 25-year-old Niagara Escarpment Plan designations.

“Right now the process is upside-down,” commented Lia Magi, a lawyer with Donnelly Law representing PERL. “Bringing a third-party application was the only way to put the proper land-use designation, based on the most current science, squarely in front of a decision-maker while it is still relevant,”Magi added.

About Environmental Defence (www.environmentaldefence.ca): Environmental Defence protects the environment and human health. We research solutions. We educate. We go to court when we have to. All in order to ensure clean air, clean water and thriving ecosystems nationwide, and to bring a halt to Canada's contribution to climate change.

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For more information, or to arrange interviews, please contact: Lia Magi, Donnelly Law, 647-654-2049, lia@donnellylaw.ca Roger Goulet, Executive Director, PERL, 905-335-4219, rgoulet@cogeco.ca

Native remains held in U of T basements

U of T prefers to not tell anyone about ‘skeletons in their basement’

Yeamrot Taddese, The Varsity

U of T’s anthropology department is being asked to repatriate thousands of Huron-Wendat ancestral remains to their descendents. The skeletal remains, dug up between the 1950s and early 1970s by archaeologists, currently lie in the basements of U of T’s St. George and Mississauga anthropology buildings.

Attorney David Donnelly has been representing the Huron-Wendat Nation since 2006, when he “got a tip” about the existence of the bones in U of T’s lying in the Anthropology buildings’ basement. “The University of Toronto had skeletons in their basement and preferred not to tell anybody,” he said. “It is profoundly tragic.”

“There are different ways [in which] people have approached excavations for analysis,” said U of T anthropology professor Susan Pfeiffer, who is also involved in the negotiation with the Huron-Wendat. Before the early 1970s, Pfeiffer said there was no framework to regulating archaeology. “We reflect on the impact of our actions and we get better.”

Pfeiffer said the skeletal remains have not been used for a long time and that the university’s Department of Anthropology “has no reason to be reluctant to return them.”

The Ontario Heritage Trust has retained responsibility for the remains at the Mississauga campus. According to Pfeiffer, the land the remains were dug up from was owned by the Ontario Heritage Trust, which permitted the excavations.

A representative from the Ontario Heritage Trust could not be reached to confirm this statement.

Link to Huron-Wendat long known

Pfeiffer said the Department of Anthropology has always known, through research analysis, that the remains were linked to the Huron-Wendat, but added that the current location of the Huron-Wendat has been a barrier in returning the remains. “Heritage is a provincial responsibility and not [a] federal [one]. The fact that the Huron-Wendat live in Quebec has slowed us down quite a bit.”

Donnelly said that location cannot be used as an excuse not to tell the Huron-Wendat about their ancestors’ remains. “The University of Toronto is a world-class university and they could have looked in a yellow page to find the Huron-Wendat.”

However, Donnelly said it is encouraging that U of T has agreed to repatriate the remains in a cooperative and respectful manner. “That is the very small silver lining.”

He also said the Ontario Heritage Trust has not returned calls and e-mails about starting a similar negotiation. “If they don’t co-operate [in the same manner as U of T], we will prosecute them under the Criminal Code of Canada.”

“Most institutions are not forthcoming about their possession of ancestral remains,” said Lee Maracle, Aboriginal studies faculty member from the Sto:Loh Nation. “What is true is that we are the only people in the country whose remains are violated and who must seek redress via negotiations to have them returned.

“No Indigenous community was ever asked to have their remains committed to violation.”

Maracle said the Huron-Wendat had a similar case in which the Canadian government kept 500 sets of human bones in the basement of the parliamentary building in Ottawa. After 10 years of negotiation, the remains were finally returned to the Huron-Wendat in the year 2000, she said.

The Ontario Cemeteries Act

In section eight of regulation 133/92, the Ontario Cemeteries Act stipulates that a representative of a person whose remains are interred in an unapproved cemetery can consent to scientific analysis on the remains.

The regulation defines a representative as: “the nearest First Nations Government or other community of aboriginal people which is willing to act as a representative and whose members have a close cultural affinity to the interred person.”

Donnelly said the regulation assumes “any Indian would do” and asked the University of Toronto Law School to cooperate with his firm to reform the act.

In cases where there is no apparent sign of burial at the cemetery — known as “irregular burial” — the current land owner is responsible for the remains.

“Like all people, [Aboriginal] people have great respect for their ancestors who made it possible for them to be here,” said Donnelly. “Burial places are sacred.”

Pfeiffer said the Anthropology department at St. George wants as little publicity as possible about the existence of the remains at U of T.

****

The Varsity: http://thevarsity.ca/articles/32797

First Nation battles for history in court

Gail Swainson

Urban Affairs Reporter - Toronto Star

Lawyers with the Huron-Wendat Nation are heading to court Friday seeking a temporary injunction to scrap all archeological approvals issued on digs at significant indigenous village sites, many of them in Greater Toronto.

The band council is seeking a one-month moratorium on all Stage Four archaeological approvals and a stop-work order on digs already on the books.

If granted the order would affect as many as three dozen sites across southern Ontario, including the nationally significant Skandatut in Vaughan, home to 2,000 Hurons 500 years ago. Most of the affected sites are Huron-Wendat, though village sites originally settled by Mohawk and Anishnabe are also involved.

“Skandatut was one of the most important centres in Ontario and nobody has moved to protect it,” said David Donnelly, lawyer for the Huron-Wendat. “Friday, we are going to do our best to try and make that happen.”

Donnelly said the one-month excavation ban would buy the Huron-Wendat and other band councils enough time to go to the Superior Court of Justice asking for permanent protection for some of the most nationally significant First Nations villages.

This is just the latest volley in a battle between the Huron-Wendat and the province over protection of native heritage sites. The Huron-Wendat say Minister of Culture and Tourism Michael Chan is not doing enough to ensure such sites are not destroyed by development. “If the ministry won’t protect these sites, we’ll ask the courts to do it,” Donnelly added.

The Star has learned the ministry is introducing new guidelines on Jan. 1 requiring consultation with First Nations councils before archaeologists start their digs. But Donnelly says the new regulations are toothless and will do little to protect important sites from being paved over.

What’s more, advance notice given by Chan in a cable TV interview two weeks ago may give landowners an opportunity to jump ahead of the new regulations and rush through potentially destructive excavations, Donnelly said.

“That was an … insensitive, bone-headed move,” Donnelly said. “This says to the developers, ‘You now have a few months to push this through.’ Just watch. These sites will start to fall like dominoes.”

Ministry spokesperson Mukunthan Paramalingham said changes have been under discussion with various stakeholders for some time.

“We are aware of the concerns related to consultation by aboriginal communities. That is why the ministry is working toward the release of new standards and guidelines for consultant archeologists,” he said. “Aboriginal engagement will be a key part of the new standards and guidelines.”

The regulations, to be posted for 60 days on the ministry’s website before they come into effect, will require notification and consultation before development sites are archaeologically excavated, but not the protection and enforcement the Huron-Wendat were seeking.

Donnelly says being notified and consulted just isn’t enough. “The developers will invite the First Nations in for a chat and then, nine times out of ten, development will just go ahead.”

“We want the opportunity to get notification way in advance, like Rogers Cable does,” he said. “They get statutory notification and First Nations don’t, and that’s just racism.”

Skandatut, a 15th century Huron site on Pine Valley Dr. in Vaughan, has been under archaeological excavations with earth movers for at least a week.

It was declared a nationally significant historical and cultural village site by prominent archaeologists in 2006. The Huron-Wendat urged the province to halt a dig then happening at the site in hopes of preserving the village, believed to contain as many as 100 longhouses.

At the time, Donnelly called the wholesale destruction of native sites “a national disgrace.”

Two weeks ago, another partial Huron-Wendat village site in Vaughan was excavated with earth-moving equipment. The Huron-Wendat cried foul, saying they had not been consulted and had only learned about the dig by accident.

******

http://www.thestar.com/news/gta/article/859013--first-nation-battles-for-history-in-court

Thousands of native remains being held in U of T storage

Gail Swainson Urban Affairs Reporter / Toronto Star

After more than four years of sensitive and sometimes testy negotiations, the Huron-Wendat Nation are on the brink of repatriating the bones of thousands of ancestors that were “robbed from their graves” years ago by archaeologists, studied and then stored in crumbling cardboard boxes at the University of Toronto.

“There are a couple thousand of our people waiting to return home,” Huron-Wendat Clan Chief Gaetan Sioui said Thursday. “When we went to see them, we almost cried to see our ancestors lying in dusty boxes for so long.”

The plundering of sacred gravesites, many in the GTA, and the casual storage of their ancestors is a painful part of Huron-Wendat history and they look forward to the day the remains can be reinterred, he said.

“The mission is clear,” Sioui added. “We want to work with the university to repatriate the remains and rebury them back in their place in a respectful manner.”

The Huron-Wendat Nation and university officials are in the final stages of hammering out an agreement that would involve turning the sacred remains over to the Quebec-based First Nation band council.

Talks between the Huron-Wendat and other Southern Ontario First Nations groups such as the Mississaugas of Scugog, the Kawartha Anishnabe and Six Nations of the Grand, among others, would be held to discuss a suitable final resting place. Most of the bones are Huron-Wendat, though the remains of several hundred bodies are from the Neutral Nation.

The bones would then be moved to a reburial location, still to be determined. One possibility is the Kleinburg ossuary, where more than 500 bodies were unearthed in the late 1960s. The Kleinburg site is currently owned by the Toronto and Region Conservation Authority.

The Huron-Wendat Nation were tipped off to the collection of bones and burial artifacts about four years ago and — horrified at the sacrilege — began a long negotiation process with U of T officials aimed at returning as many of their ancestors as possible to at least one of the mass graves raided many years ago.

U of T anthropology Professor Susan Pfeiffer, who is involved in the negotiations, said cultural sensibilities around how sites are excavated and studied have changed.

“Times are different now,” Pfeiffer said Thursday. “We are trying to handle these skeletal remains that were part of archaeological expeditions decades ago in a sensitive fashion, in a partnership with the Huron-Wendat.

“For me, personally, this is a matter of trying to do the right thing and bring closure to the past,” she added.

David Donnelly, a Toronto lawyer representing the Huron-Wendat, said the insensitive storage of aboriginal remains is a blot on academia and society as a whole.

“Try and name another ethnic group in Ontario whose graves were repeatedly targeted and dug up,” Donnelly said Thursday. “It’s only First Nations.”

Huron-Wendat believe the bones of their ancestors are sacred because they contain their souls. The mass graves, or ossuaries, of about 2,000 First Nations people were dug up by archaeologists between the 1950s and the late 1970s. The burial sites, many now covered by subdivisions, date from as early as the 14th century — long before contact with Europeans.

The ancestors of the Huron-Wendat lived across a vast swath of southern Ontario for many centuries until 1648, when, weakened by deadly epidemics, they were driven into Quebec by war with other First Nations groups.

Over the years, the remains were ferried to the University of Toronto for study and cataloguing. They are now stored in banker’s boxes at two campuses: Mississauga and St. George, where they are kept in the basement of the anthropology building.

At least 500, those from the Kleinburg ossuary, are under the care of the province’s Ontario Heritage Trust and are not yet covered by the agreement.

“The Ontario government is lagging in its legal and moral obligations to the Huron-Wendat and other First Nations,” Donnelly said. “Only immediate law reform can make amends.”

The Huron-Wendat are contemplating legal action against the province for the desecration of human remains, because of a failure to deal with the U of T remains in a suitable fashion, he added.

Ron Williamson, considered one of Ontario’s pre-eminent archaeologists, said archaeological practices up until the 1970s were exploitive of native rights, culture and history.

“There was a different sensibility then that derived from a longstanding practice that was, quite frankly, racist,” Williamson said. “But by the 1990s, no one would dream of digging an ossuary without First Nations consultation.”

Earlier this summer, a controversy erupted over the presence of the remains of 22 Inuit at Chicago’s Field Museum of Natural History. They had been sent south from the Labrador community of Zoar by an archaeologist in the 1920s. Details still have to be worked out with the Nunatsiavut, but the bones are scheduled to be repatriated.

____ http://www.thestar.com/news/gta/article/856282--thousands-of-native-remains-being-held-in-u-of-t-storage

Activists win historic ruling on 'people's law on the environment'

Crippling costs of legal action prevents people mounting challenges over environmental damage, finds UN Committee

Ecologist / 26th August, 2010

Activists were celebrating a damning ruling today on the UK's legal system which could now make it easier for individuals and NGOs to protect the environment.

Under the Aarhus Convention, signed by the UK in 1998, people should not be denied environmental justice because of the unreasonable financial risks of bringing a case to court.

A team of legal activists had brought the case to the UN committee overseeing this Convention arguing that the UK was in breach and that bad environmental decisions were not being challenged. Prevented from justice

Recently, the Marine Conservation Society was unable to mount a legal challenge against allegations of toxic waste dumping near the Port of Tyne, Newcastle, because of fears over the potentially crippling costs of losing the case.

In another example cited by the legal activists, a local resident was faced with a legal bill of more than £80,000 after challenging permission given to a cement factory to burn tyres because of health fears over the fumes on the local community.

The Aarhus Convention Compliance Committee agreed and said the UK's legal system did not, 'remove or reduce financial barriers to access to justice'. It called on the UK to 'undertake practical and legislative measures to overcome the problems'.

A victory for green groups A coalition of environmental groups, including Friends of the Earth, WWF and RSPB, who have been campaigning on the issue welcomed the decision and said the UK now had 'no option but to amend the cost rules so people and environmental groups can go to court to protect the environment.'

The legal activists who brought the case to the UN, ClientEarth, said the decision was 'game-changing' for anyone fighting for their environmental rights.

'At the moment, the government and industries can ride roughshod over their environmental responsibilities, confident that the legal system’s failings will make challenges impossible.

'If the government’s word is to mean anything on the international stage, it must move effectively and decisively to remedy the gross unfairness of the UK legal system,' said CEO ClientEarth James Thornton. UK given warning

The UK has already been warned by the EU Commission about the unfair cost of challenging decisions that impact on the environment. In March, 2010, EU Environment Commissioner Janez Potocnik threatened legal action if the UK ignored the request.

A review by Lord Justice Jackson earlier this year may go someway, if accepted, to meeting that request. It recommended that people bringing civil cases should not normally be at risk of having to pay the other side's costs. However, it did not indicate whether people would be aware of their liability for costs beforehand.

In reference to that review, a spokesperson for the Ministry of Justice admitted that high costs under the existing legal system had become a 'serious concern' and that a consultation would be launched this Autumn to 'achieve significant costs savings, whilst still enabling those who need access to justice to obtain it'. In relation to the Aarhus ruling, a government spokesperson said it was, 'carefully considering the Committee’s recently published draft findings along with our comments for submission to the Committee in order to assist the Committee finalise its findings.' Useful links The Aarhus Convention

**

http://www.theecologist.org/News/news_round_up/575962/activists_win_historic_ruling_on_peoples_law_on_the_environment.html

Developer charged in razing of 118 moraine trees

Aurora worries about precedent set at golf course project still awaiting approval

Jasmeet Sidhu - Staff Reporter -  Toronto Star

The Town of Aurora has filed several charges against a development company and its two owners after claims that more than 100 trees were destroyed to make way for a golf course before it was approved by the Ontario Municipal Board.

The town says 118 trees, including ash, pine, cedar, maple and oak, were injured or destroyed in the area of Leslie St. and Bloomington Rd., without a permit.

A resident complained June 17, the city says. After an investigation, nine charges were filed against West Hill Redevelopment Company Ltd. and its principals Joe and Wilf Lebovic.

The allegations highlight a flaw in municipal and provincial regulations that often makes it cheaper for developers to pay fines for making unapproved land alterations and proceed with their projects, rather than go through years of applications and appeals.

The project in question was initially put forward almost 12 years ago and rejected by the town in 2008. That decision is being appealed before the OMB.

If convicted, the developers face a maximum fine of $100,000 for violating the town’s tree-cutting and zoning bylaws.

Aurora Mayor Phyllis Morris is outraged at the precedent this case sets for other developers.

“Once you cut down trees and the land is cleared, what’s left to a town council and a mayor who wants to have protected them? We believed in the moraine legislation; we believed the region’s tree-cutting bylaw, the town’s tree-cutting bylaw, and the TRCA (Toronto and Region Conservation Authority) oversight would have been sufficient to deter someone,” Morris says.

“We are concerned that if this becomes the normal practice, then doesn’t that negate a town trying to protect its environment? You just hope people would follow the rules.”

The project, an 18-hole golf course and 75-unit condominium complex on both sides of Leslie St. north of Bloomington Rd., has a long and complicated history with the town.

The property would fall under the provincial Oak Ridges Moraine Conservation Plan, but because the project dates back so far, it’s subject to the regulations in effect before the plan became law in 2001. The town says it will adversely affect ground aquifers and adjoining woodlots and wetlands. Many homes in Aurora use well water drawn from the deep aquifers below.

David Donnelly, a lawyer for Environmental Defence, a non-profit based in Toronto, says he has seen many cases where a developer is alleged to have altered land in advance of an OMB decision to quicken or circumvent the approvals process.

“It’s a rare occurrence but it happens commonly enough that I think we need to tighten the rules around altering subject properties,” Donnelly says.

“Cutting trees in advance of an Ontario Municipal Board hearing or a court process robs the decision-maker of the opportunity to hear a complete defence of the environment.

“Most importantly, it takes away from the public’s right to have the environmental laws that we have in place applied fairly.”

Maureen Carter-Whitney, research director at the Canadian Institute for Environmental Law and Policy, agrees: “I believe the penalty should be so high people aren’t willing the chance of committing these kind of offences. To me, it points out a huge flaw in the system.”

West Hill did not respond Thursday to numerous attempts by the Star to contact the company for comment. The corporation is expected to appear at a Newmarket court Monday.

***

Toronto Star: http://www.thestar.com/news/gta/article/833928--developer-charged-in-razing-of-118-moraine-trees

Ontario looks to smack down SLAPPs

Province hopes to quell ‘strategic lawsuits against public participation,’ but devil may be in the details

Jeff Gray - Law Reporter - Globe and Mail

It was perhaps the most down-and-dirty development fight in Ontario’s recent memory: An eight-year battle pitting environmentalists and some well-heeled local cottagers against plans to build a $1-billion resort and marina on the shores of Lake Simcoe’s Big Bay Point, north of Toronto.

In the end, the naysayers lost their case before the Ontario Municipal Board, the province’s quasi-judicial tribunal that second-guesses local planning decisions, in late 2007.

But throughout the fight, the developer – Kimvar Enterprises, a unit of Markham, Ont.-based Geranium Corp. – was busy filing lawsuits, including multi-million dollar statements of claim for defamation against members of a residents’ association opposing the deal. After winning its OMB case, the company decided to go after residents and their lawyers for $3.2-million in legal costs.

The company denies it was improperly trying to muzzle its critics. But its moves sparked a renewed debate over what is commonly known as the SLAPP, or strategic lawsuit against public participation. The tactic sees developers or corporations attempt to silence their grassroots critics, who often have less-than-deep pockets, by launching weak or petty lawsuits against them for defamation.

Ontario’s Environmental Commissioner, Gord Miller, has called for laws to stop SLAPPs. Environmental activists say the practice is widespread in the development industry and used to pacify activists and environmentalists. But lawyers for developers say their clients should not be forced to endure false accusations made in order to whip up public opposition to development projects.

Last month, the Ontario government struck a blue-ribbon panel, chaired by Mayo Moran, dean of the University of Toronto’s law school, to advise it on how to draft legislation to stop developers or other plaintiffs from filing lawsuits meant only to intimidate critics.

Quebec recently adopted an anti-SLAPP law, and about half of U.S. states of similar laws on the books. British Columbia briefly had an anti-SLAPP law that was repealed after the Liberals were elected in 2001.

Critics say the problem with anti-SLAPP legislation is a basic one: When is a SLAPP a SLAPP, and when is it a legitimate lawsuit?

“It’s very much in the eye of the beholder," said Jeffrey Davies, a veteran development industry lawyer and one of Geranium Corp.’s lawyers in its OMB case. “It’s been my view that the courts have all the tools that they need to protect citizens against abusive lawsuits."

Geranium’s move to seek costs before the OMB was not a SLAPP, he argued. Geranium asked for legal costs to because its critics caused the OMB hearing to drag on needlessly, he said, a charge his opponents reject.

After hearing from lawyer Clayton Ruby on behalf of the project’s opponents, the OMB ruled against the developer’s cost motion last year. The OMB did not conclude that Geranium Corp. had intended to stifle public debate. But the board did concede that forcing residents to pay costs could have had a “chilling effect."

Mr. Davies argues that developers, like anybody else, have a right to defend their reputations against the wild allegations often hurled at them at public meetings by opponents of major projects.

“It’s prone to broken telephone, and information becomes misinformation," Mr. Davies said. “... People think they have a licence to say whatever they want, to beat the thing. ... False premises are made up in order to stir up opposition and get people out to meetings."

Environmentalist and lawyer David Donnelly, who represented the residents association opposed to the Big Bay Point development, warns that SLAPPs are often hidden behind legal threats and confidential settlements, meaning it is hard to measure how often residents or environmentalists opposing development projects big and small across the province are silenced.

“There are enough suits out there .. that we know it’s a real phenomenon," Mr. Donnelly said. “The problem is that it’s insidious and that’s why its hard to quantify. I’ve been around this game for 22 years and, I don’t think this is too strong a statement, our democracy is being undermined."

He said any anti-SLAPP legislation must include a provision to freeze things such as OMB proceedings or environmental assessments while the alleged SLAPP suit is dealt with, in order to strip developers of the power to use lawsuits to scare opponents away from public hearings.

Mr. Donnelly is adamant that Geranium was using SLAPP tactics. But Earl Rumm, president of Geranium, denies any of his lawsuits were SLAPPs meant to frighten away critics: “We did not use these suits in any way shape or form to gain any political or municipal favours."

As for the defamation lawsuits filed against Big Bay Point opponents, lawyers for Geranium say they are now close to signing out-of-court settlements. Tree clearing on the site to make way for condos and a new marina is already under way.

One of the members of the Ontario government’s three-member SLAPP panel, prominent media lawyer Brian MacLeod Rogers, said it was still too early to discuss what direction the panel was likely to go. Before its Sept. 30 deadline, the panel will solicit written submissions and hold public hearings, he said, to hear from any one with a view on SLAPPs.

The panel must balance both the rights of everyday citizens and developers, he said: “I think everybody on the panel is acutely aware of both sides of this equation. ... We’ll certainly be interested in getting information from people out there experiencing these lawsuits or threats of lawsuits."

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Globe and Mail: http://m.theglobeandmail.com/report-on-business/industry-news/the-law-page/ontario-looks-to-smack-down-slapps/article1630818/?service=mobile&page=0#article

Niagara Escarpment Plan Celebrates 25 Years

Former Premier Bill Davis Fetes Escarpment Protection and Addition of 750 Hectares

On June 15 at Queen's Park, environmental supporters, business leaders and political types joined guest of honour, former Premier Bill Davis, to celebrate the 25th Anniversary of the Niagara Escarpment Plan - Canada's First Green Plan.

The event was made sweeter by Minister of Natural Resources Linda Jeffrey's announcement of the government's decision to add 750 hectares to the iconic plan.

Singer/songwriter/activist Sarah Harmer was also on hand to perform a song from her new album oh little fire, as well as the popular 'Escarpment Blues', during which she cheered people to sing along with the lyrics.

The Friends of the Greenbelt Foundation congratulates the Niagara Escarpment and it's supporters in achieving this important milestone and looks forward to celebrating the Greenbelt Act's 25th anniversary - in 20 more years!

Friends of the Greenbelt Foundation Newsletter: http://us1.campaign-archive.com/?u=32bf8bb5bbeed6abcb7fd135b&id=b4580144e9

Niagara Escarpment Plan Celebrates 25 Years

Environmental groups cheer the Plan and call for update

Toronto—Calling it the finest example of agricultural preservation and urban boundary protection planning in North America, the Ontario Greenbelt Alliance is marking today the 25 th  Anniversary of approval of the Niagara Escarpment Plan.

The Niagara Escarpment, an UNESCO Biosphere Reserve, covers 194,000 ha (480,000 acres), an area almost ¾ the size of Prince Edward Island.  Environmental groups will be looking back fondly on this accomplishment next week by celebrating with The Hon William Davis, the Premier at the time of the Plan’s development.

"All Ontarians can celebrate protection of the Niagara Escarpment, a landform that is so rich in biodiversity," said Caroline Schultz, Executive Director of Ontario Nature. "The Niagara Escarpment Plan was a landmark decision in our environmental history to conserve one of southern Ontario’s greatest ecological treasures."

Although revolutionary in its day, environmental protection designations in the Niagara Escarpment Plan, first formulated in 1983, have not changed in the intervening years.

"Growing up on the Escarpment was special for us, just to be able to drink some of the purest water on earth or watch sprawl creep closer and closer to the brow without ever coming up here," said Sarah Harmer, co-founder of Protecting Escarpment Rural Land (PERL).  Harmer's song 'Escarpment Blues' is considered the unofficial anthem for the Escarpment. "Future enlightened decision making on the Escarpment needs all our help, but the job of updating the environmental designations is long over-due from the McGuinty government." PERL faces a nine month Ontario Municipal Board hearing starting in October 2010 to stop a large aggregate quarry on Mt Nemo in Burlington.

"It’s hard to believe this happened when I was in high school. To think Ontario was so far advanced in its thinking around concepts like curbing urban sprawl and guaranteeing foodland security," said Dr. Rick Smith, Executive Director, Environmental Defence.

"It was one of the great joys of my career to be able to strengthen the Plan and roll back some of the development that was starting to creep into too many places on the Escarpment," said Ruth Grier, Escarpment activist and Ontario cabinet Minister who helped strengthen the Plan by getting formal acknowledgment in the Plan of the UNESCO Biosphere Reserve designation and by drafting a section clearly setting out what was required to justify a Plan Amendment Application. "Twenty-five years of protection is a wonderful accomplishment and a testament to its wisdom and staying power, but we can’t rest until the Escarpment boundary is changed to reflect the true breadth of this magnificent area and by stopping unnecessary new quarries."

After much debate, the Niagara Escarpment Plan covered only a portion of the true Escarpment, leaving out major Escarpment areas in places like Grey-Bruce County and in Niagara.  The Greenbelt, created in 2005, added some of these lands into protected status, but left many places outside the Plan boundary.

The Escarpment soars 510 metres (1,675 ft.) at its highest point, even higher than the Space Pod observation deck of the CN Tower (1,465 ft.).  It stretches 725 km (450 miles) from Niagara to Tobermory.

Its forests, farms, scenic cliffs, streams, wetlands and rolling hills are home to more than 300 bird species, 53 mammals, 36 reptiles and amphibians, 90 fish and 100 varieties of special interest flora including 37 types of wild orchids.

The Escarpment is home to Canada's longest footpath, the Bruce Trail, established in 1967.  Ontario's Niagara Escarpment contributes an estimated $100 million to local and regional economies through tourism.

"We are all very grateful to the generation that had the forethought to secure this internationally significant landscape," said David Donnelly, counsel to Environmental Defence.  "It's our turn to leave our mark by finishing the job of protecting the whole of the Escarpment."

About the Ontario Greenbelt Alliance ( www.greenbeltalliance.ca ): The Ontario Greenbelt Alliance is a diverse multi-stakeholder coalition of more than 80 organizations who share a common vision for protecting and expanding the Golden Horseshoe Greenbelt. Environmental Defence is the coordinator of the Ontario Greenbelt Alliance .

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For more information, or to arrange an interview, please contact: Jennifer Foulds, Environmental Defence, (416) 323-9521 ext. 232; (647) 280-9521 (cell) Victoria Foote, Ontario Nature, (416) 444-8419 ext.238; (647) 290-9384 (cell)

Environmental Defence: http://www.environmentaldefence.ca/pressroom/viewnews.php?id=812

Province pushing through Greenbelt power plant

Precedent-setting legislation would neutralize attempts to fight it by King Township, farmers and environmentalists

Anna Mehler Paperny, Globe and Mail - June 3, 2010

The Ontario government is turning to precedent-setting legislation to push through a controversial gas-fired generator in the province’s protected Greenbelt.

As the legislature prepares to rise for the summer, the province is kicking off a consultation session on a regulation that would exempt a power plant from the Planning Act – effectively neutralizing opposition from King Township, the Greenbelt municipality where the generator would be located.

The township, which has fought the proposal for more than a year along with local residents and farmers groups, took the issue to the Ontario Municipal Board in April. They argue that the proposed 350-megawatt plant contravenes the province’s own Greenbelt legislation, put in place five years ago to protect Ontario’s rapidly shrinking green space.

The OMB hasn’t made a decision yet, but if the regulation passes after the 45-day consultation period, it will render moot those hearings and the hundreds of thousands the township has spent fighting the generator.

The province argues that electricity from the gas-fired plant is desperately needed to supply growing communities in the Northern York region – making the unprecedented regulation necessary to circumvent opposition that would jeopardize the area’s energy supply.

“The clock is ticking," Energy and Infrastructure Minister Brad Duguid said in an interview on Wednesday. “If we do not get this plant in the ground and running by 2011 their energy supply will be at risk. … I think we have a responsibility to the people in that region and the businesses in that region to ensure they have a steady supply of energy.

“It’s not something you want to do, but it’s something you do when necessary to ensure that the community’s protected."

But putting the generator there – and circumventing the OMB’s processes to do so – “violates an important principle" of setting aside the Greenbelt as a protected area, says environmental lawyer David Donnelly.

“Putting this development in the Greenbelt encourages other exceptions. And there should be no exceptions," he said.

King Township Mayor Margaret Black says the city is still trying to determine what legal options are open in opposing the generator being built on that site. But she’s at a loss, and doesn’t understand why the province didn’t do this months ago.

“This is about municipal planning," she said. “And I understand there may be some emergency decisions where they have to do something, but I haven’t seen that emergency has been established."

In the meantime, farmers from the Holland Marsh – the lush, closely guarded and heavily regulated agricultural area just 500 metres away from the proposed generator site – are worried about the implications it will have for their crops. More importantly, though, they’re worried this will open the door to similar developments in rural areas.

“This should scare the living Jesus out of everybody in the province," said Jamie Reaume, head of the Holland Marsh Growers Association. If the Greenbelt isn’t sacred, he argued, “this means this can be done anywhere, any time."

Nonsense, Mr. Duguid says: The province has no intention of putting blanket legislation in place like the Green Energy Act regulations exempting wind turbines from local planning qualms.

“I don’t think it’ll have any impact on the Greenbelt at all, except for ensuring that those who live and farm there have a stable source of power," he said.

But “it certainly sets a precedent," Mr. Donnelly said. “The government of Ontario is making good on its promise to accelerate its renewable energy plan. The regrettable part is that to use this instrument, to put this plant in this location, is a mistake."

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URL: http://m.theglobeandmail.com/news/national/toronto/province-pushing-through-greenbelt-power-plant/article1590343/?service=mobile&page=1#article