Corporation of the City of Thunder Bay v. Director, Ministry of the Environment, Conservation and Parks, 2019 CanLII 70213

Environmental Review Tribunal

Tribunal de l’environnement

ISSUE DATE: July 22, 2019

CASE NO: 18-024

PROCEEDING COMMENCED UNDER section 100(4) of the Ontario Water Resources Act, R.S.O. 1990, c. O.40, as amended

Appellant: Corporation of the City of Thunder Bay (File No. 18-024)

Appellant: Robert Whiteside (File No. 18-025) (Appeal Dismissed)

Respondent: Director, Ministry of the Environment, Conservation and Parks

Subject to appeal: Amendment of terms and conditions of a Permit to Take Water

Reference No.: 4321-6RVR23

Property Address/Description: Current River/Boulevard Lake Part of Mining Location 7 Savigney’s Survey

Municipality: City of Thunder Bay

ERT Case No.: 18-024

ERT Case Name: Thunder Bay (City) v. Ontario (Environment, Conservation and Parks)

Heard: December 21, 2018 and January 28, March 25 and May 7, 2019 by telephone conference call

APPEARANCES:

Parties Counsel/Representative⁺

Corporation of the City of Thunder Bay Jennifer Danahy and Michael Finley

Director, Ministry of the Environment, Conservation and Parks Nadine Harris and Paul McCulloch

Robert Whiteside Therin Rhaintre*

Presenter

North Shore Steelhead Association Frank Edgson⁺ and Scott McFadden⁺

• December 21, 2018 and January 28, 2019 only

DECISION DELIVERED BY MARLENE CASHIN AND MARCIA VALIANTE

REASONS

Background

1This Decision determines a settlement proposal brought by the City of Thunder Bay (“City”) and the Director, Ministry of the Environment, Conservation and Parks (“MECP” or “Ministry”) that Amended Permit to Take Water No. 4321-6RVR23 (“Amended PTTW”) be revised on consent, and that the City’s appeal of the Amended PTTW be withdrawn.

2On April 30, 2018, Carrie Hutchison, Director, MECP, issued the Amended PTTW to the City, pursuant to s. 34.1 of the Ontario Water Resources Act (“OWRA”). The Amended PTTW authorizes the taking of water from the Current River into storage by the Boulevard Lake Dam (“Dam”) in order to create the reservoir known as Boulevard Lake and stipulates how the water taken into storage may be released. Robert Whiteside owned and operated a small power generation facility (“Whiteside facility”) that used water from Boulevard Lake under a 1985 lease agreement between him and the City.

3On May 15, 2018, the City filed an appeal of the Amended PTTW to the Environmental Review Tribunal (“Tribunal”) and, on the same date, filed a Notice of Allegation against Mr. Whiteside and the Current River Hydro Partnership. On May 16, 2018, Mr. Whiteside filed an appeal of the Amended PTTW. On June 25, 2018, the Tribunal issued an Order dismissing Mr. Whiteside’s appeal but also granting him Party status in the proceeding commenced by the City. Reasons for that ruling and further background on the proceeding can be found in the Tribunal’s Order dated July 9, 2018 (see: Thunder Bay (City) v Ontario (Environment, Conservation and Parks), 2018 65256 (ON ERT)).

4The Tribunal held the Pre-hearing Conference (“PHC”) on July 12, 2018 and issued an Order on August 31, 2018, confirming the scheduling of the hearing and matters leading up to the hearing. The hearing was scheduled to commence on November 26, 2018 and continue for eight days in November and December of 2018.

5On July 25, 2018, the City filed a Notice of Motion and supporting materials, arguing that the OWRA requires the Whiteside facility to obtain a separate permit to take water. The motion was heard on August 8 and 9, 2018. The Tribunal issued an Order on September 14, 2018 (“September 14 Order”), dismissing the City’s motion (see: Thunder Bay (City) v Ontario (Environment, Conservation and Parks), 2018 86699 (ON ERT)).

6On October 17, 2018, counsel to the City wrote to the Tribunal requesting that the hearing be adjourned for two months to give the City an opportunity to consider the September 14 Order and consult with the other Parties. The Tribunal issued an Order on November 5, 2018 granting the City’s motion to adjourn the hearing, subject to conditions, which included scheduling February 11-15, 2019 for the hearing of the appeal (see: Thunder Bay v Ontario (Environment, Conservation and Parks), 2018 107737 (ON ERT)).

7A telephone conference call (“TCC”) was held on December 21, 2018 and, after hearing submissions from the Parties and the North Shore Steelhead Association (“NSSA”), the Tribunal granted Presenter status to the NSSA, with reasons to follow. This decision provides those reasons. The Parties also informed the Tribunal at that time that they were engaged in settlement discussions and were close to settlement of the appeal. At the Parties’ request, the Tribunal vacated the hearing dates and scheduled a TCC for January 28, 2019, at which time the Parties would update the Tribunal on the progress of the settlement discussions.

8At the January 28, 2019 TCC, the Parties advised that they continued to make progress toward a settlement but would need more time to finalize matters. They requested another TCC, which the Tribunal scheduled for March 25, 2019.

9On March 7, 2019, counsel to Mr. Whiteside wrote to the Tribunal advising that all of the issues raised by Mr. Whiteside had been settled with the City, and stating that Mr. Whiteside thereby withdrew from any further involvement in the proceeding.

10At the March 25, 2019 TCC, counsel to the City advised the Tribunal that Mr. Whiteside’s withdrawal would simplify matters considerably with regard to settlement with the Director and requested that another TCC be scheduled to allow further time for the settlement documents to be circulated and agreed upon. The Director agreed.

11The Tribunal scheduled a settlement hearing to be held by TCC on May 7, 2019 and instructed that the Parties send a copy of the proposed revised Amended PTTW and any submissions to the Tribunal prior to the TCC. The Parties provided the requested materials prior to the settlement hearing. The NSSA also provided submissions, setting out their reasons for not supporting the proposed revised Amended PTTW.

12Having considered the evidence and submissions of the Parties and of the NSSA, the Tribunal accepts the proposal that the Amended PTTW be revised and that the City’s appeal be withdrawn.

Issues

13The issues are:

1. whether the North Shore Steelhead Association should be granted Presenter status; and

2. whether to accept the settlement proposal that the Amended PTTW be revised on consent of the Parties and that the City’s appeal be withdrawn.

Relevant Rules

14The participation of a Presenter in a proceeding is addressed in Rules 69 to 71 of the Tribunal’s Rules of Practice (“Rules”) as follows:

Naming of a Presenter

69. The Tribunal may name persons to be Presenters in all or part of a proceeding on such conditions as the Tribunal considers appropriate. A Presenter to a proceeding is not a Party to the proceeding. In deciding whether to name a person as a Presenter, the Tribunal may consider whether the person’s connection to the subject matter of the proceeding or issues in dispute is more remote than a Party’s or Participant’s would be. A person who may otherwise qualify as a Party or Participant may request Presenter status.

Role of a Presenter

70. A Presenter in a Hearing may:

(a) be a witness and present his or her relevant evidence at a pre-arranged time, either during a Hearing's regular day-time session or at a special evening session;

(b) be questioned by the Parties;

(c) provide the Tribunal with a written statement as a supplement to oral testimony; and

(d) upon request, receive a copy of documents exchanged by the Parties that are relevant to the Presenter's interests.

71. A Presenter in a Hearing may not:

(a) raise issues that have not already been raised by a Party;

(b) call witnesses;

(c) cross-examine witnesses;

(d) bring motions;

(e) make oral and written submissions to the Tribunal at the commencement and at the end of the Hearing;

(f) participate in a mediation, unless permitted to do so by the Tribunal;

(g) attend site visits unless permitted to do so by the Tribunal; and

(h) claim costs or be liable for costs.

15Termination of proceedings is addressed in Rules 198 to 206. In this case Rule 201 is applicable:

201. Where there has been a proposed withdrawal of an appeal as part of a settlement agreement not objected to by any Party that alters the decision under appeal, the Tribunal shall review the settlement agreement and consider whether the agreement is consistent with the purpose and provisions of the relevant legislation and whether the agreement is in the public interest. The Tribunal shall also consider the interests of Participants and Presenters. After consideration of the above factors, the Tribunal may decide to continue with the Hearing or issue a decision dismissing the proceeding.

Discussion, Analysis and Findings

Issue No. 1: Whether the North Shore Steelhead Association should be granted Presenter status

Presenter’s and Parties’ Submissions

16During the TCC held on December 21, 2018, the Tribunal heard submissions from the Parties on a request by the NSSA to be added as a Presenter in the hearing of the appeal. Frank Edgson, representing the NSSA, submitted that the NSSA has had a long-time interest in protecting the cold-water fishery on the Current River, which is affected by the operation of the Dam, and has been concerned about the City’s ability to manage flows in the Current River under the 2006 water-taking permit. He said that the NSSA was involved with raising funds to construct the fish ladder at the Dam.

17Mr. Whiteside opposed the NSSA’s request for status in the proceeding. Counsel to Mr. Whiteside submitted that the NSSA does not have a legal interest in the matter nor the qualifications to be of assistance in the hearing.

18The Director noted that the NSSA did not attend the PHC, where the Tribunal addressed the issues of status requests and matters of scheduling. Nevertheless, the Director did not oppose the granting of Presenter status but noted that it was late in the day for the NSSA to be seeking status since it was likely that settlement discussions between the Parties would be successful.

19The City did not oppose the granting of Presenter status to the NSSA.

Analysis and Findings

20As set out in Rule 69, “the Tribunal may name persons to be Presenters in all or part of a proceeding on such conditions as the Tribunal considers appropriate.” Also, “in deciding whether to name a person as a Presenter, the Tribunal may consider whether the person’s connection to the subject matter of the proceeding or issues in dispute is more remote than a Party’s or Participant’s would be”.

21The Tribunal finds that it is appropriate that the NSSA be granted Presenter status in this proceeding.

22In deciding to grant Presenter status to the NSSA, the Tribunal notes that the NSSA has a history of involvement in protecting a fishery associated with the Dam and the Current River and seeks to ensure that the Amended PTTW respects the needs of that fishery. The Tribunal finds that the NSSA has relevant information respecting what terms and conditions might be appropriately included in the Amended PTTW. It was not necessary, for the purpose of granting status, to decide whether or not Mr. Edgson or another representative of the NSSA would eventually seek to be qualified as an expert. Thus, the Tribunal finds, the NSSA has a genuine interest in the subject matter of the proceeding and is likely to make a relevant contribution to the Tribunal’s understanding of the issues in the proceeding.

Issue No. 2: Whether to accept the settlement proposal that the Amended PTTW be revised on consent of the Parties, and that the City’s appeal be withdrawn.

Presenter’s and Parties’ Submissions

23The City submits that, once Mr. Whiteside and the City came to an agreement on March 7, 2019, the lease was terminated and the Whiteside facility ceased operation. Since that time, the City submits, the City and the MECP have worked together to revise the Amended PTTW to remove all reference to water use for hydroelectric power generation and to address certain minor operational matters.

24The City submits that the settlement jointly proposed by the City and MECP is consistent with the purpose and provisions of the OWRA and is in the public interest.

25The Director agrees with the City’s description of the proposed revisions to the Amended PTTW as clarifying that the water taking will be for recreational and conservation uses only, and agrees as well that the other revisions in the proposed settlement are consistent with the purpose and provisions of the OWRA and are in the public interest.

26The NSSA is opposed to the proposed revised Amended PTTW. In its response statement to the Tribunal dated May 6, 2019, the NSSA’s previous concerns regarding the operation of the Whiteside facility are not referenced. However, the NSSA submits that Condition 3.6.1, which relates to minimum in-stream flows below the Dam, “must include wording to ensure that water is directed through the Sluiceway #1 (fishway). Any other wording allows the permit holder to be in compliance with the PTTW and in contradiction of the [Federal Fisheries Act]…” (emphasis in the original).

27The NSSA’s other objections to the revisions proposed in the settlement between the Parties all refer to Condition 4.5, which requires the City to conduct a hydraulic and habitat assessment of the reach of the Current River from the base of the Dam to Lake Superior. Generally, the NSSA submits, the various subsections of Condition 4.5 should make reference to assessments and reports that should be signed by a professional engineer with experience in or specializing in “hydraulic flows and fish passage”.

28Regarding the NSSA’s opposition to the proposed settlement, the City says that the NSSA’s concerns regarding the operation of the Whiteside facility were resolved by the agreement with Mr. Whiteside and the conclusion of those operations.

29Regarding the NSSA’s desire to see additional terms included in the PTTW, the City says:

The issues raised by the NSSA can be taken forward by the NSSA with [the Ministry of Natural Resources and Forestry (“MNRF”)] and [the Department of Fisheries and Oceans (“DFO”)] for assessment. In future, should more specific guidance be issued by MNRF and/or DFO, then the need for changes to the operation of the Dam, or to the terms of the PTTW, can be considered and addressed by the City and the MECP at that time. It is premature, at present, to make changes to the PTTW that are unsupported by guidance from these regulators.

30The Director submits, regarding the NSSA’s position opposing the settlement agreement, that she cannot agree to the changes requested by the NSSA because there are no specific fishery objectives for the Current River in place at this time. The Director submits that the fishery objectives for the Current River should be established in the appropriate forum, with all interested parties and the relevant government decision makers included:

The Ministry of Natural Resources and Forestry (MNRF) manages recreational fisheries in Ontario in accordance with its policy document, Ecological Framework for Recreational Fisheries Management in Ontario. A fisheries management plan has been created for zone 6, which includes the Thunder Bay region. However, the plan does not specifically address whether or how steelhead trout in the Current River are to be managed. MNRF has not set specific fishery objectives for steelhead trout on the Current River. The Current River Water Management Plan (administered by the City under the Lakes and Rivers Improvement Act) contains direction as to how the fish ladder is to be operated. With the issuance of the revised PTTW the city will need to submit a request to MNRF to amend the [Water Management Plan] in order to ensure that it is consistent with the new PTTW. Fish ladder operation will continue to be directed by the Water Management Plan. The PTTW therefore does not currently specify whether or how the fish ladder should be operated, but the conditions provide flexibility to the City of Thunder Bay to send water down the fish ladder if it is determined by MNRF that it is consistent with ecological considerations to do so at any point in the future.

Analysis and Findings

31Under the Tribunal’s Rules, terminations of proceedings are dealt with in accordance with Rules 198 to 206. In a case where there has been a proposed withdrawal of an appeal as part of a settlement agreement not objected to by any Party that alters the decision under appeal, as is the situation at hand, Rule 201 is applicable. In accordance with Rule 201, the Tribunal must “review the settlement agreement and consider whether the agreement is consistent with the purpose and provisions of the relevant legislation and whether the agreement is in the public interest.” The Tribunal must also consider the interests of Participants and Presenters. In this case, as there are no Participants, the interests of the Presenter, the NSSA, must be considered. Only after considering these factors, may the Tribunal decide to continue with the Hearing or issue a decision dismissing the proceeding.

32The purpose the OWRA is:

…to provide for the conservation, protection and management of Ontario’s waters and for their efficient and sustainable use, in order to promote Ontario’s long-term environmental, social and economic well-being.

33Based on the evidence and submissions of the Parties, the Tribunal finds that the revisions to the Amended PTTW that the City characterizes as “housekeeping amendments” to reflect the closure of the Whiteside facility will contribute to the conservation, protection, management and use of the Current River, as the proposed revisions will more accurately reflect the current operation of the Dam and make it clear that the water taking is for recreational and conservation uses only. These proposed revisions to the Amended PTTW also reflect the impact of extreme weather events.

34The Tribunal notes that the NSSA does not oppose the specific revisions proposed, but seeks additional revisions. The NSSA’s primary concern appears to be to ensure that the Amended PTTW specifies a minimum flow through the fish ladder to ensure the safe passage of fish, in particular steelhead trout, into Boulevard Lake and upstream. The MNRF has not yet set fishery objectives for steelhead trout in the Current River. At present, the operation of the fish ladder is addressed in the Current River Water Management Plan (“WMP”), adopted in accordance with the Lakes and Rivers Improvement Act, R.S.O. 1990, c. L.3, which the City administers. The Tribunal agrees with the City and the Director that operation of the fish ladder is most appropriately addressed in the context of a revision to the WMP and following assessment of regional fisheries objectives by DFO and MNRF and consultation with all parties having an interest in the fishery objectives for the Current River, including Indigenous communities and presumably the NSSA. The Tribunal was advised that the closure of the Whiteside facility will require an amendment to the WMP.

35The proposed revision to Condition 4.5 requires the City to carry out a hydraulic and habitat assessment of the lower reach of the Current River. The assessment report shall assess the effectiveness of the rate of flow through the sluiceways on the protection of “the natural function and connectivity of the river and potential for impairment of fish passage, critical fish habitats and benthic macroinvertebrate production” and shall document “mitigative measures proposed to alleviate impacts”. The report is to be signed by “a Professional Engineer, licensed in Ontario, and by a Professional Biologist experienced in fish and benthic habitats assessment,” and must be submitted to the MECP and MNRF. As such, it will provide useful information to the process that will result in an amendment to the WMP and possibly further amendment to the Amended PTTW. Until there are specific fishery objectives established for the Current River and MNRF reviews the WMP, the Tribunal agrees with the Director that it would be premature to require changes to the Amended PTTW directed toward establishing such objectives that have not been guided by the MNRF and DFO.

36Regarding the NSSA’s submission that Condition 3.6.1 as proposed would allow the permit holder to be in compliance with the Amended PTTW but in contravention of the Fisheries Act, the Tribunal notes that Condition 2.2 of the Amended PTTW states that the issuance of, and compliance with, the permit does not relieve the permit holder from any obligation to comply with any other applicable legal requirements.

37In summary, the Tribunal finds that the proposed revisions to the Amended PTTW are consistent with the purpose and provisions of the OWRA and are in the public interest.

DECISION

38The Tribunal grants Presenter status to the North Shore Steelhead Association.

39The Tribunal orders the Director to revise Amended Permit to Take Water No. 4321-6RVR23 as set out in Appendix 1 attached to this Decision.

40The Tribunal accepts the withdrawal of the City’s appeal and dismisses the proceeding.

Request for Presenter Status Granted

Director Ordered to Revise Amended Permit to Take Water

Appeal Withdrawn

Proceeding Dismissed

“Marlene Cashin”

MARLENE CASHIN

MEMBER

“Marcia Valiante”

MARCIA VALIANTE

VICE-CHAIR

Appendix 1 – Amended Permit to Take Water No. 4321-6RVR23

If there is an attachment referred to in this document, please visit www.elto.gov.on.ca to view the attachment in PDF format.

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