Environmental Review Tribunal
Tribunal de l’environnement
ISSUE DATE:
October 29, 2019
CASE NO.:
19-056
19-057
19-058
PROCEEDING COMMENCED UNDER section 38 of the Environmental Bill of Rights, 1993, S.O. 1993, c. 28, as amended,
Applicant:
SOS Beaverton
Instrument Holder:
Goodyear Farm Ltd.
Respondent:
Director, Ministry of the Environment, Conservation and Parks
Subject of leave to appeal:
A Permit to Take Water issued under section 34.1 of Ontario Water Resources Act to take surface water from Talbot River – Pump - 1
Reference No.:
8062-AM3NZA
Property Address/Description:
Lot 11 Concession 9
Municipality:
Regional Municipality of Durham
Upper Tier:
Township of Brock
ERT Case No.:
19-056
ERT Case Name:
SOS Beaverton v. Ontario (Environment, Conservation and Parks)
PROCEEDING COMMENCED UNDER section 38 of the Environmental Bill of Rights, 1993, S.O. 1993, c. 28, as amended,
Applicant:
SOS Beaverton
Instrument Holder:
Goodyear Farm Ltd.
Respondent:
Director, Ministry of the Environment, Conservation and Parks
Subject of leave to appeal:
An Amended Permit to Take Water issued under section 34 of Ontario Water Resources Act to take surface water from Lake Simcoe, Pump 1, and Lake Simcoe, Pump 3
Reference No.:
5350-8AKNU6
Property Address/Description:
Lot 13, Concession 8
Municipality:
Regional Municipality of Durham
Upper Tier:
Township of Brock
ERT Case No.:
19-057
ERT Case Name:
SOS Beaverton v. Ontario (Environment, Conservation and Parks)
PROCEEDING COMMENCED UNDER section 38 of the Environmental Bill of Rights, 1993, S.O. 1993, c. 28, as amended,
Applicant:
SOS Beaverton
Instrument Holder:
Goodyear Farm Ltd.
Respondent:
Director, Ministry of the Environment, Conservation and Parks
Subject of leave to appeal:
A Permit to Take Water issued under section 34.1 of Ontario Water Resources Act to take surface water from Talbot River
Reference No.:
6464-ANQP35
Property Address/Description:
1532 Canal Road Lot 5, Concession A
Municipality:
Township of Ramara
Upper Tier:
County of Simcoe
ERT Case No.:
19-058
ERT Case Name:
SOS Beaverton v. Ontario (Environment, Conservation and Parks)
Heard:
In writing
APPEARANCES:
Parties
Representative
SOS Beaverton
Self-represented
Goodyear Farm Ltd.
Lawrence Hansen
DECISION DELIVERED BY LAURIE BRUCE
REASONS
Background
1This decision arises from an application by SOS Beaverton (the “Applicant”) related to three Permits to Take Water (the “Permits”) issued by the Ministry of Environment (“MOE”) and the Ministry of the Environment and Climate Change (“MOECC”), now the Ministry of Environment, Conservation and Parks (“MECP”) to Goodyear Farm Ltd.
2The Environmental Review Tribunal (“ERT”, or the “Tribunal”) Case Number 19-056 relates to Permit 8062-AM3NZA issued pursuant to section 34.1 of the Ontario Water Resources Act, R.S.O 1990 (“OWRA”). The permit was issued on May 11, 2017 by Cynthia Doughty, Director of MOECC. The permit is for the taking of water from the Talbot River (Pump 1) for the irrigation of field and pasture crops.
3ERT Case Number 19-057 relates to an Amended Permit 535-8AKNU6 which replaces Permit Number 5132-7SAL2R. The amended permit was issued pursuant to section 34.1 of the OWRA on November 1, 2010 by Kathryn Baker, Director of MOE. The permit is for the taking of water from Lake Simcoe (Pump 1 and 3) for the irrigation of field and pasture crops.
4ERT Case Number 19-058 relates to Permit 6464-ANQP35 issued pursuant to section 34.1 of the OWRA. The permit was issued on October 11, 2017 by Karoly Tajnay, Director of MOECC. The permit is for the taking of water from the Talbot River for the irrigation of field and pasture crops.
5The Applicant on July 1, 2019 submitted a letter to the Director of the MECP, the Tribunal and the Environmental Commissioner of Ontario. The Applicant indicates in its letter that it is a group of concerned citizens and represents thousands of residents in Beaverton, those living on the east side of Lake Simcoe and in the Lake Simcoe watershed.
6In its letter application, the Applicant states that the water taken under Goodyear Farm Ltd.’s Permits is being discharged back into Lake Simcoe and the Talbot River in contravention of section 30 of the OWRA. The Applicant submits that this is not just rain run-off or run-off from winter melt but is also the return of water taken under the Permits and that it is having an adverse impact on Talbot River and Lake Simcoe. The Applicant also states that it is applying under section 34.1 of the OWRA, under section 4 of the Water Taking and Transfer Regulation and under section 6 of each of the Permits to have the Director amend or revoke the Permits until Goodyear Farm Ltd. ceases permitting or causing the discharge of the water it takes under these permits in a manner which impairs the quality of Lake Simcoe, Canal Lake and the Talbot River.
7Upon receipt of the Application there was uncertainty about the basis for the Application. It was later clarified by the Applicant in an email to the ERT that it was seeking to have Permits 5350-8AKNU6, 8062-AM3N2A and 6464-ANQN2A issued to Goodyear Farm Ltd. revoked on the basis of the authority conferred by section 61 (1) of the Environmental Bill of Rights, 1993, S.O. 1993 (“EBR”) which provides:
61 (1) Any two persons resident in Ontario who believe that an existing policy, Act, regulation or instrument of Ontario should be amended, repealed or revoked in order to protect the environment may apply to the appropriate minister for a review of the policy, Act, regulation or instrument. (emphasis added)
8By email dated September 6, 2019, the Tribunal requested submissions from the parties on the Tribunal’s jurisdiction to process the application.
9Goodyear Farm Ltd. submitted that: section 61 (1) of the EBR gives no jurisdiction to the Tribunal to adjudicate this matter. Further, that section 61 (1) is the first section in Part IV, EBR entitled “Application for Review”, which sets out a ministerial review process which is separate and apart from an application for leave to appeal under section 38(1), EBR. As submitted by Goodyear Farm Ltd., the process is that a request for a review under Part IV is evaluated by the Minister of the Environment, Conservation and Parks and where warranted, a review is conducted. The EBR does not provide that the Tribunal should conduct a parallel review under section 61 (1).
10The Applicant did not make a submission in support of its application in response to the September 6, 2019 email request from the Tribunal.
11The Tribunal concurs with the submissions of Goodyear Farm Ltd. that the Tribunal does not have jurisdiction to adjudicate these applications. Section 61 (1) clearly provides a review by the Minister, not by the Tribunal. The Tribunal only has the jurisdiction to receive appeals and applications where specifically permitted by law. Therefore, the three applications are dismissed for lack of jurisdiction.
DECISION
12The Tribunal dismisses the applications.
Applications dismissed
“Laurie Bruce”
LAURIE BRUCE
MEMBER
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Environmental Review Tribunal
A constituent tribunal of Tribunals Ontario - Environment and Land Division
Website: www.elto.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248