Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: October 26, 2021
CASE NO(S).: PL190600
PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: North Shore Environmental Resource Advocates Inc.
Subject: By-law No. BL 19-22
Municipality: Township of The North Shore
OLT Case No.: PL190600
OLT File No.: PL190600
OLT Case Name: North Shore Environmental Resource Advocates Inc. v. The North Shore (Township)
Heard: July 13, 2021 by video hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| North Shore Environmental Resource Advocates Inc. | David Donnelly |
| Darien Aggregates Inc. | Jeffrey Wilker |
| Township of The North Shore | Matthew Shoemaker |
MEMORANDUM OF ORAL DECISION DELIVERED BY JATINDER BHULLAR ON JULY 13, 2021 AND ORDER OF THE TRIBUNAL
1This Decision and Order results from the first Case Management Conference (“CMC”) by video hearing (“VH”) on the appeal by North Shore Environmental Resource Advocates Inc. (the “Appellant”), pursuant to s. 34(19) of the Planning Act (the “Act”), from the Township of The North Shore (the “Township”) decision to approve an application by Darien Aggregates Inc. (the “Applicant”). The approval was granted on November 6, 2019 for the Zoning By-law Amendment (“ZBA”) through By-law No. 19-22. The ZBA rezones the subject lands from Restricted Open Space (ROS) zone to Aggregate Extractive (MX) zone to permit a new Class A-Category 12 for below water extraction of trap rock.
2The lands are located 3.5 kilometres north of Highway 17 west, off Pronto Road in Long Township, Municipality of the North Shore, District of Algoma (“subject lands”).
3The Applicant seeks a permit from the Ministry of Northern Development, Mines, Natural Resources and Forestry (the “Ministry”) for proposed extraction of aggregates with annual tonnage limit of 2,000,000 tonnes on Crown Lands.
4The notice for this first CMC was marked as Exhibit 1 for the record.
PARTIES AND PARTICIPANTS
5The Applicant with direct interest in the matter was granted party status.
6Zachary D’Onofrio, counsel for the Ministry, stated that the Ministry will not be presenting any evidence in any possible merits hearing. Mr. D’Onofrio stated that the Ministry will simply observe and assist if so asked by the Tribunal.
7The Tribunal received a number of requests from people seeking participant status. After review at the CMC including submissions by the parties, the Tribunal granted participant status to the following:
a. Joanne Ashcroft and Thomas Ashcroft as one b. Joyce Johnson c. Katie Krelove d. Stephen Harvey e. Elizabeth Rousselle f. Michael Newnham
8It should be noted that the participation by participants is governed by the Tribunal’s Rules of Practice and Procedure per Rule 7.7 as follows:
7.7 Participant Statements A person who wishes to participate in a proceeding as a participant, shall file a written participant statement that sets out their position on the appeal and issues of the proceeding, together with an explanation of their reasons in support of their position. A participant may only make submissions to the Tribunal in writing unless otherwise provided for by an Act or regulation.
UPDATES
9At the outset, the parties flagged that there was a possible issue given the coming into force on June 1, 2021 of the amended Aggregate Resources Act (the “ARA”).
10Mr. Wilker, counsel for the Applicant, submitted that the ARA no longer allows a zoning by-law to be determinative in the issuance of a permit for aggregates extraction on Crown Lands. He added that the outcome of this appeal or even the original approval of the rezoning are of no consequence as per s. 34(9) of the ARA for the requested permit application.
11Mr. Shoemaker, counsel for the Township, concurred with the submission of the Applicant.
12When inquired by the Tribunal, the counsel for the Ministry, while agreeing with the Applicant’s assertion stated that the Ministry may consider a zoning by-law as part of its overall determination of a permit application.
13The Appellant’s counsel argued that a zoning by-law may not prohibit but may espouse limiting extraction. He concurred with other counsel that this indeed is a threshold issue that needs to be determined before this matter could move forward.
14Based on deliberations at the CMC, the parties requested that all counsel would deliberate jointly, and that they be allowed to come back to the Tribunal around August 27, 2021 for the setting of a possible motion date or other remedy. Subsequently, the Tribunal received a request with consent of all parties for the setting of a motion to be considered during a one-day oral hearing.
15The parties submitted and the Tribunal approves that the motion will address two questions as follow:
- Does s. 34(9) of the ARA, render the appeal of ZBA No. 19 - 22 moot?
- Does the ARA, including s. 34(9) permit municipal by-laws to regulate the operation of quarries on Crown Land?
16The timetable for the exchange of materials as submitted by the parties and as reviewed and revised by the Tribunal is as follows:
- The Applicant's Motion Record, including Notice of Motion, Affidavit and Factum due 3 months prior to the motion date (the Applicant);
- Other parties' responses, including Notice of Response to Motion, Affidavit and Factum due 2 months prior to the motion date (the Appellant and Municipality);
- The Applicant's reply, if any, due 1 month prior to the motion date.
17Based on the submissions of the parties at the CMC and their communication to the Tribunal thereafter, the Tribunal sets Wednesday, February 23, 2022 at 10 a.m. for a motion to be heard by video:
https://global.gotomeeting.com/join/173507909
Access Code: 173-507-909
18Parties and participants are asked to log into the video hearing at least 15 minutes before the start of the event to test their video and audio connections.
19Parties and participants are asked to access and set up the application well in advance of the event to avoid unnecessary delay. The desktop application can be downloaded at GoToMeeting or a web application is available: https://app.gotomeeting.com/home.html.
20Persons who experience technical difficulties accessing the GoToMeeting application or who only wish to listen to the event can connect to the event by calling into an audio-only telephone line: Toll-Free 1-888-299-1889 or +1 (647) 497-9373. The Access Code is as indicated above.
21Individuals are directed to connect to the event on the assigned date at the correct time. It is the responsibility of the persons participating in the video hearing to ensure that they are properly connected to the event at the correct time. Questions prior to the hearing event may be directed to the Tribunal’s Case Coordinator having carriage of this case.
22There will be no further notice.
23This Member is not seized.
24This Member may be approached for case management purposes.
“Jatinder Bhullar”
JATINDER BHULLAR MEMBER
Ontario Land Tribunal Website: www.olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248
The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.