OMB Does Not Preclude Seeking Civil Remedies
SCJ finds that Ontario Municipal Board decisions do not prevent claimants from seeking remedies in civil courts
On February 22, 2011 Justice G.R. Strathy of the Superior Court of Justice released his decision on the issue of res judicata and abuse of process (re-litigation of similar issues) as it applies to previous decisions made by the Ontario Municipal Board (OMB).
The Plaintiffs, represented by Donnelly Law, are claiming damages for nuisance due to ponding and flooding occurring on their property. They are claiming that ponding and flooding is a result of disturbance of grading in the backyard due to the construction of a concrete embankment and gazebo by their neighbours.
The Defendants, represented by Cassels Brock & Blackwell LLP, claimed that the Plaintiffs’ action was res judicata as the Plaintiffs had unsuccessfully appealed the granting of a minor variance allowing the gazebo by the City of Toronto to the OMB. The Plaintiffs subsequently launched an action for nuisance against their neighbours as they were experiencing flooding and ponding in their backyard.
David Donnelly, arguing on behalf of the Plaintiffs in court, argued that no person should have to give up their right to bring a claim to the civil courts if they first go to the OMB where there is no opportunity for an award of damages.
Justice Strathy agreed and found that the Plaintiffs claim does not constitute res judicata or abuse of process. The OMB’s jurisdiction and decisions are limited to land-use planning matters.
In his decision Justice Strathy stated:
It would be passing strange if a structure that did not comply with the by-law could be immunized from civil suit by virtue of the granting of a "minor" variance. It would be equally strange if the approval of a minor variance by the OMB had the effect of authorizing the commission of a nuisance. It would be an extraordinary state of affairs in my view, if an objector at an OMB hearing were to lose its civil rights, in this case the right to claim damages for nuisance,
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…if its evidence and arguments against a minor variance were to be rejected [...] It does not undermine the integrity of the adjudicative process of the COA (Committee of Adjustments) or of the OMB to say that findings of fact made by these tribunals in relation to planning issues within their jurisdiction are not determinative of liability in subsequent civil proceedings. On the contrary, it simply recognizes the limits of the sphere of responsibility of these bodies.
Had I found that issue estoppel applied, I would have exercised my discretion to refuse a stay... It would be entirely unjust, in my view, to deprive the Jains of a civil remedy simply because they objected to their neighbour's application for a minor variance.
See a link to the decision here: Jain v. Valani 2011 ONSC 1156
Globally Significant Fern Colony Threatened by Quarry
World Renowned University of Michigan Professor Testifies at OMB
Collingwood, ON – In the latest twist to the ongoing Walker Aggregates quarry application, world renowned botanist Dr. Tony Reznicek last week told the joint hearing of the Environmental Review Tribunal (ERT) and Ontario Municipal Board (OMB) that one of the world’s largest colonies of the rare Hart’s Tongue Fern will likely be destroyed if the proposed quarry expansion is approved.
Reznicek, a professor at the University of Michigan, contends that the proposed 50-metre buffer for the colony is unproven and contrary to the plant’s lifecycle needs as an interior forest species. The Ministry of Natural Resources normally requires a 100-metre buffer for such species, but has inexplicably approved the proposed 50-metre buffer. Dr. Reznick was born, raised and educated in Ontario, and is an expert witness called by the Clearview Community Coalition, the citizens group opposed to the quarry. The Coalition is currently presenting its case, and opposition to the quarry is mounting.
“Ontario is home to 95% of the world’s American Hart’s Tongue Fern populations and virtually all of the viable remaining populations, which makes us this plant’s last and only stewards,” said Dr. Rick Smith, Executive Director of Environmental Defence. Given the precedent setting issues at play, Environmental Defence is supporting the Clearview Community Coalition (CCC) in the case. CCC is represented by David Donnelly of Donnelly Law.
“How perverse would it be if this quarry’s expansion contributed to the snuffing out of this species?” Smith added. Destroying the colony of the rare fern at the site of the proposed quarry could vault the plant into a higher risk category on the global list of threatened species.
The Hart’s Tongue Fern is globally rare with very few plants scattered in disparate sites in New York, Michigan, Tennessee, Alabama, and Ontario. The plant is listed as a federally Threatened species in United States and is a species of Special Concern in Ontario. Ontario has the bulk of North America’s population, and is considered an important refuge, Reznicek says. Most of Ontario’s 58 viable sites of the rare plant are on the Niagara Escarpment, which, despite being a UNESCO Biosphere Reserve, is not protected from quarrying.
“Due to the significance of this rare, large and healthy colony, I would recommend absolute protection,” Dr. Reznicek says.
“The American Hart's Tongue Fern is an indicator species. We are determined to save it and it’s important and beautiful habitat,” said Ruth Grier, a CCC supporter and former Ontario Minister of the Environment.
The proposed quarry site is home to Significant Wildlife Habitat, Significant Woodland, Provincially Significant Woodlands, vernal pools and the habitat of endangered butternut trees. The site was also home to potentially significant Bobolink habitat. Just days before the species was uplisted to “Threatened,” a Walker employee ordered the destruction of the habitat.
The case, which has been ongoing for ten months, is expected to close in April. The Clearview Community Coalition is also expected to call Ontario Environment Commissioner Gordon Miller to testify in March.
-30- For more information or to arrange an interview, please contact: Stephanie Kohls, Environmental Defence, 416-323-9521 ext. 232, 647-280-9521 (cell) Ruth Grier, Clearview Community Coalition supporter, 416-259-1722, ruth.grier@bell.net Dr. Reznicek, reznicek@umich.edu
http://environmentaldefence.ca/articles/globally-significant-fern-colony-threatened-quarry-world-renowned-university-michigan-profe
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.
- 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.
- 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
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
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.”
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Published Online Oct. 06, 2010: http://www.thestar.com/news/article/871918--province-halts-work-at-indigenous-site
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.
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The Varsity: http://thevarsity.ca/articles/32797
First Nation battles for history in court
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.
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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.
First Nations want say in the preservation of important archaeological sites in Ontario
The province must ban the bulldozing of important native sites by developers without the consultation or even notification of First Nations people, says a spokesperson with the Huron-Wendat nation.
“We are not against development, but there should be a duty to consult so we can work together,” said Luc Laine, Ontario spokesperson for the Quebec-based Wendake First Nation. “We are pretty upset with what is going on out there, particularly with what is happening at Teston Rd.”
Laine’s comments came after the archaeological excavation this month of a small soybean field at the northeast corner of Teston Rd. and Jane St. in Vaughan.
Laine says native stakeholders only found out about the dig by accident, although it is thought to be on or near the site of a historically and culturally important Huron village from the 13th and 14th centuries. He contends this dig should have led to some form of notification.
The three-week excavation, which included tearing up the field with earthmoving equipment, was wrapped up by archaeologist Keith Powers last Monday.
The dig site is also just metres away from a mass grave containing the remains of some 400 Hurons, discovered in 2005 during the widening of Teston Rd.
When Huron-Wendat officials heard of the dig a few weeks ago, their Toronto lawyer David Donnelly frantically emailed Tourism and Culture Minister Michael Chan and Vaughan planning officials, demanding without success that the work be halted until the Huron-Wendat could be drawn into the process.
“In the old days, at least the First Nations got muskets and beads when we took their sites,” Donnelly said. “Now they can’t even get a phone call returned.”
There is currently no legal requirement that First Nations be consulted in such cases, though there is a patchwork of legal decisions and a consultation recommendation from the Ipperwash Commission of Inquiry, which found that 8,000 native village and burial sites have been destroyed province-wide.
A 2004 court decision in Ontario also ruled that the province has a duty to consult with native stakeholders when selling property.
But there are no provincial regulations currently in place requiring consultation when native sites are found on private property, although a set of guidelines is “imminent,” says ministry spokesperson Danelle Balfour.
“The ministry is updating the standards and guidelines for archaeology to bring more consistency and predictability,” Balfour said. “Aboriginal engagement will be a key part of the new standards and guidelines.”
Balfour said the ministry has been in contact with the Huron-Wendat since the Teston Rd. dig came to light and will have further talks next week, all aimed at getting a process in place requiring notification of First Nations groups when village or ossuary sites are discovered on private land.
When York Region road crews uncovered the Teston Rd. gravesite remains in 2005, the region called an immediate halt to construction — as required under provincial law when human remains are found — and notified native groups. A study determined that the burial site was a Huron-Wendat ossuary.
In the end, the road was moved slightly to accommodate a new gravesite, and the bones were later reburied with ceremony under the eye of elders representing First Nations from across Ontario and Quebec.
Landowner Gold Park Homes refused to comment on the matter when contacted. No development application has been received for the site. However, Powers, the archaeologist, said the developer informed him they were proceeding with a dig because “they wanted to make sure there was nothing on the site to impact development.”
Powers said Gold Park officials were told best archaeological practices dictated that First Nations representatives should be notified of the dig, but they refused. Powers was asked by Donnelly, ministry and Vaughan officials at the site to stop excavation until proper notification could take place but he told them Gold Park wanted the dig to continue.
“They didn’t want anything to hold this up. They wanted to go fast,” Powers said. “They didn’t want to contact aboriginal groups. That is clear. But I don’t want to be the bad guy here. I did what my employer said to do.”
Based on what he uncovered at the site during his dig, the village site is likely located mostly in a forested area adjacent and to the north of the field, Power said.
The tips of longhouse shadows found at the northern edge of the field and the small scattering of artifacts at the site all led him to deduce the village is in the forested area, which is environmentally protected and can never be built on, Powers said.
The village, which is considered important both archaeologically and historically, would likely contain storage pits, hearths, post moulds and other longhouse remains. There are even possibly more burials.
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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.
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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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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=b4580144e9Green Power Magazine
http://www.greenpowermagazine.ca/ The introduction of the world-class Green Energy and Economy Act puts Ontario in the lead of a North American green energy revolution. Green Power Magazine focuses on the people making the new policies and projects essential to Ontario's green energy future. The Magazine will be of interest to industry leaders, government, investors, ENGO's, media and the public. Green Power will be launched in July 2010.
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 gov
ernment 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
Growing like a weed
Global climate change conferences such as the one held in Copenhagen in December have accomplished little given the huge investment by countries around the world, says Jed Goldberg, president of Earth Day Canada.
Those mammoth United Nations-sponsored conferences have become magnets for political photo ops, the media and the movement's usual suspects, Mr. Goldberg says, but they have failed to strike a chord with ordinary citizens or generate any real change.
And in an era when nations including Canada are ignoring binding Kyoto Protocol commitments to reduce greenhouse gas emissions, he says money would be better spent supporting countless small, daily efforts of individuals and communities to prevent Earth's degradation.
"What happens where Canadians live is real for them; what happens halfway around the world isn't something they feel connected to," he says. "So whatever we do 'for the environment' has to be something they can see and feel and touch."
Earth Day Canada, which is marking its 20th anniversary today, was originally the coordinating body for festivities in Canada commemorating another 20th anniversary: that of Earth Day, which is now 40 years old.
But the Canadian event proved so popular with schools, community groups and businesses that Earth Day Canada became a permanent charity -- and has grown into a powerhouse.
The organization spends $3.5-million annually developing educational programs for 40% of Canadian schoolchildren, and handing out scholarships and grants to support grassroots activism.
The key to its success has been to reach out to average Canadians, who, poll after poll suggests, view themselves as sensitive to issues of the environment even though they might live in the suburbs and drive an SUV. They are people who haven't felt welcomed by "traditional" environmental activists, Mr. Goldberg says.
The "conference of the future," he says, should look like the one organized in 2005 by Earth Day Canada scholarship recipient Alysia Garmulewicz, who, as a teenager from tiny New Denver, B.C., raised $120,000 to hold her own national conference on climate change in Victoria.
Last summer, before leaving for Oxford, England, on a Rhodes scholarship, Ms. Garmulewicz organized a second conference in Vancouver, called World Changing Careers, brainstorming ways to incorporate environmental goals into education.
Ms. Garmulewicz, who attended Copenhagen last year, calls it a valuable exercise, but says the narrow focus on setting targets for reducing carbon emissions has mostly left the public cold.
"The message has been that we need to cut back on emissions, not what we should build," she says. "The next step has to be to say, 'across all disciplines and areas of expertise 3/8, what are we as a society working toward?'"
Other Earth Day Canada honorees coast to coast have planted thousands of trees, saved neighbourhood animal species from extinction, fought for municipal pesticide bylaws and the protection of environmentally significant forests, halted clear-cutting of mature trees and cleaned up beaches.
They have written plays for children, planted therapeutic gardens, opened second-hand stores salvaging and reselling junk pile finds and secured millions of dollars to clean up abandoned industrial sites near their homes.
And the organization has made progress in positively shaping Canadians' behaviour overall, Mr. Goldberg says.
Backyard composters and rooftop solar arrays, which two decades ago were unheard of, are now commonplace in many communities. Littering and carrying groceries home in plastic bags have become socially taboo. And businesses cater to a burgeoning marketplace for ethically and environmentally sound products, from locavore foods to LEED-certified new homes.
At the same time, there is an increasingly dirty public relations war being waged to try to win over the public, Mr. Goldberg says, with many examples of companies spreading misinformation about their products' supposed green attributes.
Earth Day Canada has been in court several times defending its trademarked name against allegedly unscrupulous marketing. An example Mr. Goldberg cites was when a home building supplier tried to sponsor an 'Earth Day Canada'-themed promotional giveaway of live tree seedlings.
"We don't ever want the name to turn into an opportunity for commercial shilling of who knows what," he says.
David Donnelly, an environmental lawyer and former executive director of the advocacy group Environmental Defense, calls Earth Day Canada's idealism "essential" to support grassroots organizations that are trying to make a difference.
"People who, for whatever reason, feel alienated or distanced from environmentalism need to be brought on board," says Mr. Donnelly, who last year won the organization's 'hometown hero' award.
"And environmentalists need to do everything possible for that to happen."
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National Post: http://www.nationalpost.com/Growing+like+weed/2936506/story.html
Citizens' group loses ground in cottage country
Battle between district association, developer over condo project raises issue of SLAPP lawsuits
Canwest News
When David Donnelly took up the fight against developers of a $1-billion condo and marina complex slated for cottage-country north of Toronto, the environmental lawyer anticipated a hard fight.
But after losing before the Ontario Municipal Board in 2007, Donnelly and his client, the Innisfil District Association, were soon battling the developer's claim to recoup $3.2 million in legal costs. Donnelly, named in the claim, felt he was in the fight of his life.
He and other environmental watchdogs considered it a "strategic litigation against public participation" lawsuit, or "SLAPP" -- an example of an increasingly common legal gambit.
"Developers are targeting small town activists, the 'concerned citizens' groups, because they're most vulnerable," said the lawyer, who was named Earth Day Canada's "hometown hero" for 2008 at the height of his legal battle. "So many groups have chosen silence over financial ruin."
Although 26 U.S. states have enacted protections against SLAPP suits, in Canada only Quebec has such a law. But what constitutes a SLAPP suit is a matter of debate. And some provinces -- including British Columbia, which repealed an anti-SLAPP law that was briefly on the books in 2001 -- say existing laws adequately protect citizen protesters against abuse of process.
Developers argue that hobbling the ability to recoup expenses after a court win emboldens anti-development hardliners to defame them or, in the name of environmentalism or another cause, to stall or derail worthy projects.
"There's a misnomer out there, that as soon as there's a lawsuit it's a SLAPP," said Earl Rumm, chief executive of Kimvar Enterprises Inc., the developer of the contested 1,000-slip marina, 2,000-unit condo/ hotel complex and golf course planned for Big Bay Point on Lake Simcoe.
"We went after our costs ... which we were entitled to do. We didn't sue anybody."
By the time Environmental Defense -- the organization formerly helmed by Donnelly -- intervened with the Innisfil District Association to fight the development, the original application filed in 2002 had undergone extensive revisions after a series of public consultations, had cleared three levels of government, and had the backing of 'thousands of pages' of expert scientific and environmental studies, says Rumm.
At the costs hearing, the developer sought an award five times higher than the biggest in Ontario legal history. And protesters scoffed at some of the items in the $3.2-million calculation: they included a slice of chocolate cake, $38 for a 10-litre bucket and a hacksaw, and a $45 bug jacket, among others.
But Rumm estimates he had spent at least $5 million fighting local opposition and securing multiple permissions to develop his land. The fight has been "brutally expensive," he says. Getting $3.2 million back, by his own calculation, seemed a bargain.
"I can assure you that Mr. Donnelly drank the coffee and ate the cake," says Jeffrey Davies, of Davies Howe Partners and counsel for Kimvar, referring to some of the disputed expense items. That's because Kimvar had to pay the facilities costs of the hearings, which were held at an area hotel and included a daily refreshment bar, he says.
Donnelly and the Innisfil District Association also dragged out the fight, according to Davies. "They kept raising all sorts of arcane scientific points, sending us after all kinds of red herrings and we had no choice but to go there."
When the OMB decision was handed down in 2008, Lake Simcoe cottagers and Donnelly weren't ordered to pay the developer anything. But they had spent over a year, and an estimated $1.25-million, defending themselves.
It was a partial victory for the developer as well. The OMB rejected the environmentalists' argument that the high cost claim had been meant to stifle protest -- it wasn't a SLAPP, the judgment said.
Kimvar's development plans have since been grandfathered under Ontario's new Lake Simcoe Protection Act. This winter, over the objections of environmentalists, tree-clearing sanctioned by the Lake Simcoe Conservation Authority and Town of Innisfil went ahead.
Rumm said he feels victimized by groups including Environmental Defense, which "have vowed to use every tactic they can to continue to stall us" in getting further permits, he says.
"They refuse to acknowledge that leading-edge environmental studies have been applied to the development plan," Rumm's lawyer adds.
"They just keep turning a blind eye."
The battle over the future of this cottage country haven continues. At the same time, momentum is building for the creation of a new anti-SLAPP law in Ontario. The province's environmental commissioner Gord Miller has called SLAPP suits "a contagion."
Some 62 municipalities, including the cities of Toronto, Hamilton, Oakville and Aurora, have adopted resolutions demanding legislation to protect grassroots activism. And the province is said to be weighing its options.
Anti-SLAPP laws "can't come too soon," says Donnelly, "because our democracy is suffering, people are really under siege."
Province Says "No" to Carlisle Quarry
St. Mary's Cement loses escarpment bid
April 13, 2010
Eric McGuinness, Hamilton Spectator
Astonished community leaders were “ecstatic” Tuesday after MPP Ted McMeekin announced the province had issued an unprecedented order halting St. Marys Cement’s attempt to open a massive limestone quarry on a 15-hectare site in the former town of Flamborough.
McMeekin said the province was responding to widespread concern about potential harm to groundwater supplying wells, wetlands and streams.
The order declares the site must remain zoned “rural and conservation management” in perpetuity.
The province’s decision is a victory for Friends of Rural Communities Everywhere (FORCE), a well-organized citizens group that argued the plan posed an unacceptable threat to environmentally sensitive land and the water beneath it.
It’s a huge setback for St. Marys, Canadian subsidiary of the Brazilian giant Votorantim Cimentos, and for Ontario’s politically powerful stone, sand and gravel industry, which strives to keep land available for aggregate extraction. St. Marys says it spent $20 million on efforts to rezone the property and obtain a quarry licence.
A small crowd burst into applause as the MPP for Ancaster-Dundas-Flamborough-Westdale delivered the news outside his Waterdown riding office Tuesday.
Hamilton Ward 15 Councillor Margaret McCarthy, who is leaving office this fall, couldn’t contain her joy and tears streamed down her face. A passionate foe of the project for six years, she said, “It’s very nice, having come so far, having it end like this before I leave.”
Ontario Environmental Commissioner Gord Miller, who has long urged the government to screen out unsuitable sites early, said, “This is a really significant decision, because large quarry applications have always been approved” if the companies went through a planning process that can take 10 years.
He argued in a 2006-07 report that an approval process is not legitimate if applications are never turned down.
“The policy hasn’t changed yet,” he said yesterday, “but this brings us one step closer to a world where we can come to a decision early with less effort.”
McMeekin said ministerial zoning orders have been used three times before: to stop Toronto from dumping garbage in the Adams mine in Northern Ontario, to protect the Oak Ridges Moraine and to protect the Marcy’s Woods Nature Reserve on Lake Erie.
John Moroz, vice-president and general manager of St. Marys, said his company believes the government made a grave error. “St Marys expects to conduct business in Ontario within a regulatory framework that is clear and reasonable, and on that basis has invested hundreds of millions of dollars in this province. Given the strong economic and social potential of the Flamborough Quarry, and our investment to date, we have no choice but to examine our legal options.”
McMeekin said the company has 30 days to appeal, then the province has 30 days to declare a provincial interest in the issue. If it does, the appeal would be decided by Cabinet.
Besides FORCE, the quarry was strongly opposed by Hamilton, Halton, Burlington and Milton councils, medical officers of health, conservation authorities, school boards, farm groups and the Ontario Environment Ministry.
(http://www.thestar.com/news/gta/article/794780--quarry-plan-killed-after-six-year-fight)