Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: December 22, 2021 CASE NO(S).: OLT-21-001543

PROCEEDING COMMENCED UNDER section 38 of the Environmental Bill of Rights, 1993, S.O. 1993, c. 28, as amended,

Applicant: Citizens Against Melrose Quarry (File No. 001701) Instrument Holder: C.H. Demill Holdings Inc. Respondent: Director, Ministry of the Environment, Conservation and Parks Subject of leave to appeal: Decision to issue a Permit to Take Water issued under section 34.1 of Ontario Water Resources Act, R.S.O. 1990 for quarry dewatering and dust control purposes at the Long's Quarry Location Reference No.: 4242-C2PM2T Property Address/Description: 13 Melrose Road Municipality: Township of Tyendinaga Upper Tier: County of Hastings OLT Case No.: 21-001543 OLT Case Name: Citizens Against Melrose Quarry v. Ontario (Environment, Conservation and Parks)

Heard: In writing

APPEARANCES:

Parties Citizens Against Melrose Quarry

Counsel Richard Lingren Joseph F. Castrilli

Parties Director, Ministry of the Environment, Conservation and Parks

Counsel Isabelle O’Connor Nadine Harris

Parties C.H. Demill Holdings Inc.

Counsel Tony Fleming

DECISION DELIVERED BY C. HARDY AND D. CHIPMAN AND ORDER OF THE TRIBUNAL

BACKGROUND

1C.H. Demill Holdings Inc. (“Instrument Holder”) operates a quarry (“Long’s Quarry”) located at 13 Melrose Road, Lot 6, Concession 3 (“Subject Property”), in the Township of Tyendinaga (“Township”), in the County of Hastings.

2Long’s Quarry operates below the water table resulting in the need for a Permit To Take Water (“PTTW”) pursuant to the Ontario Water Resources Act, R.S.O. 1990, c. O.40 (“OWRA”). The Instrument Holder requires the PTTW to pump out water in Long’s Quarry (“Quarry”) that accumulates as a result of precipitation, snowmelt etc. The amount of water removed exceeds 50,000 litres per day and as such, a PTTW is required pursuant to s. 34 of the OWRA.

3A number of PTTWs have been issued to the Instrument Holder over the years.

4In December 2015, the Instrument Holder applied for and obtained PTTW No. 0040-9XXL6J (“2015 Permit”) for a five-year term expiring October 31, 2020. The 2015 Permit contained a condition making it the responsibility of the Instrument Holder to keep advised of low-water advisories. The 2015 Permit stated:

3.3 it is the responsibility of the Permit Holder to keep advised of any low-water advisory within the jurisdiction of the Quinte Conservation Authority. When a low-water advisory exists within the Quinte Conservation Authority, the Permit Holder shall only take an amount of water each day equal to the amount of precipitation received at the site in the preceding day. The calculation of the amount of precipitation received at the site for purposes of this provision shall be determined by the Permit Holder based on its on-site precipitation monitor and the area of the site.

For the purpose of this condition, low water advisory means a Level 1 low water condition as defined by the Ministry of Natural Resources and Forestry (“MNRF”) in their Low Water Response Program, as may be amended from time to time by the MNRF.

5After the issuance of the 2015 Permit, the Instrument Holder determined that it was unable to comply with Condition 3.3 during periods of heavy rainfall or multiple days of rainfall. In addition, if rainfall occurred on a Friday or Saturday, the Instrument Holder could not pump water as it was not permitted access to the Quarry after hours (evenings and weekends). These restrictions were frustrating the objectives of Condition 3.3 and the Instrument Holder made the Ministry of Environment, Conservation and Parks (“Ministry”) aware of the issue.

6The 2015 Permit expired on October 31, 2020 and the Instrument Holder applied for a renewal with the recommendation that the low-water condition be removed from any future permit to address the operational difficulty that it was encountering. The Ministry allowed water-takings to continue while the Instrument Holder’s renewal application remained under consideration.

7On October 20, 2021, the Director (“Director”), of the Ministry issued Permit To Take Water No. 4242-C2PM2T (“2021 PTTW”). The 2021 PTTW is the subject of this application.

8Under the Instrument Holder’s 2021 PTTW, it is authorized to take water up to a maximum of eight hours per day and up to a maximum amount of 1,315,000 litres of water per day for dewatering purposes. In addition, the 2021 PTTW allows the Instrument Holder to:

a. increase the number of hours of taking to 24 hours per day and the maximum taken per day to 3,000,000 litres per day for a maximum of 60 days per year, not necessarily consecutive days; and,

b. take additional water to a maximum of 50,000 litres per day for a maximum of 300 days per year for dust suppression activities at the Subject Property.

9The 2021 PTTW included Condition 3.5 (“Condition 3.5”) which reads as follows:

3.5 It is the responsibility of the Permit Holder to keep advised of any Low Water Advisory within the jurisdiction of the Quinte Conservation Authority. For the purpose of this condition, Low Water Advisory means a Level 1, Level 2, or Level 3 low water condition as defined by the Ministry of Northern Development, Mines, Natural Resources and Forestry (MNDMNRF) in their Low Water Response Program, as may be amended from time to time by the MNDMNRF.

When a Low Water Advisory exists within the Quinte Conservation Authority watershed, the Permit Holder is only permitted to pump out an amount of water equivalent to the precipitation that has fallen onto the site since the beginning of the Advisory. The amount of precipitation received by the quarry for purposes of its Condition shall be calculated by the Permit Holder using a properly calibrated on-site precipitation monitor and area of the site or in accordance with a method otherwise accepted by the Director. The Permit Holder shall pump out the water from the quarry forthwith, subject to the water quality provisions of the Environmental Compliance Approval for the site and any other restrictions/requirements imposed in the Site Licence.

10On November 3, 2021, Citizens Against Melrose Quarry (“CAMQ”) filed an application for leave to appeal (“Application”) the Director’s decision under s. 38 of the Environmental Bill of Rights, 1993 (“EBR”). The Application was limited to appealing Condition 3.5 of the 2021 PTTW.

11On November 8, 2021, the Director requested and was granted an extension of time to file a response to the Application. CAMQ and the Instrument Holder were afforded corresponding extensions of time to file their responses.

12In summary, CAMQ cited in its Application concerns about:

a. Direct and cumulative environmental impacts;

b. The Instrument Holder’s history of non-compliance;

c. Water sustainability, conservation and adaptive management; and,

d. Continued need for the 2021 Permit to include a stringent low-water condition in light of recent drought conditions and local population growth.

EVIDENCE AND SUBMISSIONS FILED REGARDING THE LEAVE APPLICATION

13CAMQ filed evidence and submissions, including an affidavit sworn by Susan Munro dated November 2, 2021 (“Munro Affidavit”), an affidavit sworn by John Pyke dated November 2, 2021 (“Pyke Affidavit”) and Reply Submissions dated November 29, 2021. Ms. Munroe is the founding member of CAMQ. Mr. Pyke is an environmental geoscientist and hydrogeologist with Malroz Engineering Incorporated.

14The Director responded with submissions and affidavit evidence, including an affidavit sworn by Sarah Baxter dated November 24, 2021 (“Baxter Affidavit”), an affidavit sworn by Kyle Stephenson dated November 24, 2021 (“Stephenson Affidavit”) and an affidavit sworn by Gregory Meek dated November 24, 2021 (“Meek Affidavit”). Ms. Baxter is a Surface Water Specialist in the Ministry’s Eastern Region Office. Mr. Stephenson is a Hydrogeologist in the Ministry’s Eastern Region Technical Support Section, Groundwater Unit. Mr. Meek is a Supervisor (Acting) in the Ministry’s Permit to Take Water Unit, in the Environmental Permissions Branch.

15The Instrument Holder responded with submissions and evidence, including an affidavit sworn by Brian King dated November 24, 2021 (“King Affidavit”). Mr. King is a Professional Geoscientist with Oakridge Environmental Limited.

ISSUES

16The two issues on this Application are:

a. Whether CAMQ has standing under s. 38(1) of the EBR to seek leave to appeal; and,

b. Whether CAMQ meet the two-part test for leave to appeal under s. 41 of the EBR (“Leave Test”).

ANALYSIS

17The Tribunal has considered all of the Parties submissions and has summarized the relevant portions in this Decision.

Issue No. 1 - Standing to Seek Leave to Appeal

18The test for standing to seek leave to appeal is set out in s. 38(1) of the EBR. It states:

38(1) Any person resident in Ontario may seek leave to appeal from a decision whether or not to implement a proposal for a Class I or II instrument of which notice is required to be given under section 22, if the following two conditions are met:

1. The person seeking leave to appeal has an interest in the decision.

2. Another person has a right under another Act to appeal from a decision whether or not to implement the proposal.

19Neither the Director nor the Instrument Holder disputes that CAMQ satisfies these requirements and has standing to seek leave to appeal.

Conclusion on Standing to Seek Leave to Appeal

20The Tribunal finds that CAMQ is an incorporated organization carrying on activities in Ontario and as such, constitutes a person resident in Ontario. The 2021 Permit is a classified instrument for which notice was given. CAMQ met with, corresponded with and provided comments to the Ministry before, during and after the consultation process, showing a clear interest in the decision. Finally, the Instrument Holder has a right to appeal the decision under s. 100 of the OWRA. As such, the Tribunal finds that CAMQ meets the four requirements set out under s. 38(1) of the EBR and therefore, has standing to seek leave to appeal.

Issue No. 2 - The Leave Test

21Section 41 of the EBR sets out the Leave Test, which is a two-part test incorporating a reasonableness test and a significant environmental harm test. Each of these tests must be satisfied for an applicant to be granted leave to appeal. Section 41 states:

41. Leave to appeal a decision shall not be granted unless it appears to the appellate body that,

(a) there is good reason to believe that no reasonable person, having regard to the relevant law and to any government policies developed to guide decisions of that kind, could have made the decision; and

(b) the decision in respect of which an appeal is sought could result in significant harm to the environment.

These two requirements will be analyzed and applied separately below.

22The Leave Test has been applied by the Tribunal and the Courts and is best explained in Lafarge Canada Inc. v. Ontario (Environmental Review Tribunal), 2008 CanLII 30290 (ON SCDC), [2008] O.J. No. 2460 (“Lafarge”), at para. 45:

At the leave to appeal stage, the appropriate standard of proof is an evidentiary one, i.e., leading sufficient evidence to establish a prima facie case, or showing that the appeal has “preliminary merit”, or that a good arguable case has been made out, or that there is a serious issue to be tried. Although worded differently, all of these phrases point to a uniform standard which is less than the balance of probabilities, but amount to satisfying the Tribunal that there is a real foundation, sufficient to give the parties a right to pursue the matter through the appeal process.

23The Tribunal follows the approach set out in Lafarge in assessing this Application for leave to appeal.

24CAMQ’s overall position is that no reasonable person could have made the decision to revise and impose Condition 3.5 and that this decision could result in significant harm to the environment.

25CAMQ submits that it “remains highly concerned about the uncertain and imprecise nature of this re-worded condition, its enforceability against a proponent with a lengthy history of non-compliance, and most importantly, the potential risks to the environment, the low-yield aquifer, and local groundwater users in the context of climate change impacts (characterized by increasingly frequent and lengthy low-water advisories).”

26CAMQ raised a number of grounds for leave to appeal, which will be addressed below. Some of the grounds raised fall under the first part of the test, some under the second part of the test, and some under both parts of the test.

A. Reasonableness Test

27In Lafarge, at para. 46, the Divisional Court set out how the reasonableness test should be applied. It stated:

…the test mandates reasonable persons to have regard to relevant law and policies and the factual record. If there has been a failure by the Directors to consider relevant law and policies, then, given the effect of the failure to do so, the Tribunal may conclude that there is good reason to believe that no reasonable person could have made the decision in issue.

Ministry’s Statement of Environmental Values (“SEV”)

28CAMQ submits that the former Environmental Review Tribunal (“ERT”) has held that the SEV is an important document, which should be part of the Ministry’s decision when issuing or amending in instruments prescribed under the EBR. CAMQ submits that the decision of the Director is not consistent with the following commitments contained in the SEV: ecosystem approach to environmental protection; consideration of cumulative effects; sustainable development; precautionary science-based approach; and adaptive management.

a. Ecosystem Approach

29CAMQ submits that the Director did not properly consider nor apply the ecosystem approach when revising and imposing Condition 3.5.

30The Director submits that CAMQ’s allegations regarding the Director’s failure to consider the ecosystem approach have no basis. The onus is on CAMQ to meet the test however, they do not provide evidence to support their allegations. Further, the evidence set out in the Stephenson Affidavit regarding monitoring that was conducted since 2015 shows that no unacceptable impacts to the ecosystem have resulted in the water takings.

31The Instrument Holder submits that Conditions 3 through 5 in the 2021 PTTW demonstrate that the Director took into account the ecosystem approach as they are included to protect the quality of the natural environment in order to safeguard the ecosystem.

32Based on the evidence before it, the Tribunal finds that CAMQ has failed to demonstrate on a prima facie basis how the ecosystem approach was not considered nor applied by the Director when revising and imposing Condition 3.5.

b. Cumulative Effects

33CAMQ argues that the SEV contains a commitment that the Ministry will consider cumulative effects when making environmentally significant decisions. CAMQ acknowledges that the Instrument Holder had a cumulative impact assessment prepared, but submits that the analysis was limited in scope, radius and application. Further, CAMQ argues that there is no evidence demonstrating that the Director considered nor relied upon the analysis in the assessment when re-wording Condition 3.5 and as such, the Director’s decision is unreasonable in the circumstances.

34The Director submits that the ongoing monitoring programs mandated by previous permits, including the 2015 PTTW, provided the Director with considerable information, which was considered in the wording and inclusion of Condition 3.5 in the 2021 PTTW. The Director further submits that both the Baxter Affidavit and the Stephenson Affidavit concluded that the information produced through the monitoring programs recommended that it was unnecessary to require a broader cumulative impacts assessment with respect to the 2021 PTTW.

35The Instrument Holder submits that it is clear that the Director considered cumulative effects in this case. The Instrument Holder argues that the Tribunal approved the 2015 PTTW and the minor changes to Condition 3.5 will not create cumulative effects on the environment.

36Based on the evidence before it, the Tribunal finds that CAMQ have not provided good reason to believe that the Director’s decision to revise and impose Condition 3.5 is unreasonable in this regard.

c. Sustainable Development Principles

37CAMQ argues that the SEV requires the Director to consider the effects of its decisions on current and future generations, consistent with sustainable development principles. It submits that this requires the Director to consider water conservation. CAMQ notes that Condition 3.5 is poorly worded and provides no margin of error for water-takings during drought conditions and this is inconsistent with, or contrary to, sustainable development principles. It further submits that the wording of Condition 3.5 is inconsistent with the purposes of the OWRA, which are “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”.

38The Director argues that water conservation does not directly arise with respect to the role of Condition 3.5. The majority of the water taken at the Quarry is for dewatering of stormwater and meltwater and is returned to the ecosystem. As part of the 2020 Annual Monitoring Report, a water audit was conducted, which concluded that removing water as quickly as possible after a rain event is required to meet water conservation goals, and this is consistent with Condition 3.5. Further, Condition 4.2 of the 2021 PTTW includes groundwater and surface water monitoring and the Instrument Holder must employ contingency measures where necessary when unacceptable groundwater impacts are identified, pursuant to Condition 5.3 of the 2021 PTTW.

39The Instrument Holder argues that CAMQ did not submit any evidence to support a connection between dewatering of rainfall pursuant to Condition 3.5 and water conservation. It simply submits that water flows in and Condition 3.5 permits the water to be pumped out when safe to do so.

40The Tribunal is persuaded by the Director’s evidence and by the results of the 2020 water audit. Dewatering that occurs at the Subject Property is returned to the ecosystem and very little water is actually consumed by the operations at the Subject Property. Based on the evidence and submissions before it, the Tribunal finds that the Director acted reasonably and had regard to sustainable development principles when wording Condition 3.5.

Common Law Rights

41CAMQ submits that PTTWs may affect or limit neighbours’ common law rights. The Director should have imposed better wording in Condition 3.5 to safeguard against unreasonable interference with common law rights of neighbours if pumping occurs during low-water conditions. It further submits that regulatory approvals may negate common law rights in which case it may be necessary for the Director to refuse an approval, reduce or downsize the scale of an approved undertaking or impose more stringent terms and conditions in an approval. CAMQ argues that there is no evidence that the Director addressed his mind to common law rights prior to issuing the 2021 PTTW.

42The Director submits that he considered the effects of the 2021 PTTW on the environment and other water users and included conditions to limit and control the amount of water taken, resolve potential water quantity interference issues, implement a groundwater and surface water monitoring program, require compliance with the 2021 PTTW and any other applicable legal requirements. In this regard, the Director submits that Condition 2.4 of the 2021 PTTW provides that the 2021 PTTW shall not be construed as precluding or limiting any legal claims or rights of action of any person. The Director argues that the onus is on the Applicant to satisfy the Tribunal that the test has been met - they may not simply raise an issue without any evidence in support. The Director argues that CAMQ has not specified in its submissions which rights of the neighbours will be affected or limited as a result of the issuance of the 2021 PTTW. Given the inclusion of Condition 2.4 in the 2021 PTTW and the failure of CAMQ to provide any evidentiary support to show adverse effects on common law rights, the Director submits that CAMQ has failed to meet the test in respect of this issue.

43The Instrument Holder supports the Director’s submissions and further submits that the limits contained in Condition 3.5 make it impossible for water-taking to affect the water supply of neighbouring lands. It argues that the monitoring program and other contingencies demonstrate that the Director considered common law rights of neighbours when issuing the 2021 PTTW and included conditions.

44The 2021 PTTW’s Condition 2.4 states:

2.4 The issuance of, and compliance with this Permit shall not be construed as precluding or limiting any legal claims or rights of action that any person, including the Crown in right of Ontario or any agency thereof, has or may have against the Permit Holder, its officers, employees, agents, and contractors.

45The Tribunal finds that Condition 2.4 preserves the common law rights of action of neighbouring landowners and comprehensively addresses the issue. CAMQ did not provide submissions demonstrating how Condition 2.4 fails to protect the common law rights of neighbours. Based on this, the Tribunal finds that CAMQ has failed to demonstrate on a prima facie basis that there is good reason to believe that no reasonable person, having regard to the common law rights of neighbours, could have made the decision to issue the 2021 PTTW.

Conclusions on the Reasonableness Test

46Based on the evidence and submissions before it, the Tribunal finds that CAMQ has failed to demonstrate on a prima facie basis that it appears that there is good reason to believe that no reasonable person, having regard to the applicable law and policies, could have made the decision to issue the 2021 PTTW with Condition 3.5 included.

B. The Significant Harm Test

47Section 41(b) of the EBR states:

41(b) Leave to appeal a decision shall not be granted unless it appears to the appellate body that,

(b) the decision in respect of which an appeal is sought could result in significant harm to the environment.

Under the test, applicants for leave must demonstrate that it appears that significant harm to the environment could result.

48The first branch of the Leave Test was not satisfied. As both branches of the Leave Test under s. 41 of the EBR must be satisfied in order for leave to be granted, it is not necessary for the Tribunal to analyze the second branch. Nonetheless, the Tribunal will briefly summarize the submissions of the Parties below.

Precautionary Approach under the SEV

49CAMQ submits that the Director did not apply the precautionary principle when considering the revision and imposition of Condition 3.5 in the 2021 PTTW. It argues that the re-wording of Condition 3.5 creates uncertainty about how much water can be pumped during low-water conditions. CAMQ submits that there is no evidence to demonstrate that the Director took a precautionary or science-based approach in authorizing water-takings in this sensitive area during drought conditions.

50The Director submits that the precautionary approach does not require refusal of a permit where risks of environmental harm exist, but rather requires the Director to take measures to prevent harm where there is uncertainty. He submits that he reviewed a hydrogeological report, obtained expert opinions and analyzed monitoring of water taking at the Subject Property and found no threat of serious harm from Condition 3.5. The Director submits that there is a high level of certainty that there is unlikely to be any adverse impacts and that the decision to issue the 2021 PTTW with the included conditions is consistent with the precautionary approach. The monitoring and reporting that is required of the Instrument Holder are intended to confirm that the water taking is not negatively impacting existing water users and the environment.

51The Instrument Holder submits that there is no evidence to suggest any risks to the natural environment or drinking water wells associated with the removal of water after a rain event. It further submits that the required continuation of the monitoring program and contingencies demonstrate that the precautionary approach was considered by the Director and applied in this case.

52The ERT has held that the term “precautionary approach” may be used interchangeably with the term “precautionary principle”. The SEV contains a commitment that the “Ministry uses a precautionary, science-based approach in its decision-making to protect human health and the environment”. In applying the precautionary approach, the Supreme Court of Canada stated in Castonguay Blasting Ltd. v. Ontario (Environment), 2013 SCC 52, [2013] 3 S.C.R. 323, at para 20:

…since there are inherent limits in being able to determine and predict environmental impacts with scientific certainty, environmental policies must anticipate and prevent environmental degradation.

53The Tribunal finds that, in this case, there is scientific certainty regarding the impacts of the water taking authorized by the 2021 PTTW. There have been numerous studies and expert opinions provided in addition to the ongoing monitoring that is required of the Instrument Holder. These measures demonstrate that the Director did apply the precautionary approach when considering the issuance of the 2021 PTTW. The Tribunal finds that CAMQ has failed to demonstrate on a prima facie basis that there is good reason to believe that no reasonable person, having regard to the precautionary approach, could have made the decision to issue the 2021 PTTW.

Existing Environmental Conditions Already at Risk

54CAMQ submits that there are pre-existing conditions in the area of the Subject Property that create potential significant environmental harm arising from water-takings during drought conditions that are permitted pursuant to Condition 3.5. It further submits that due to existing drought conditions in the area, Condition 3.5 must be strengthened and strictly enforced. Residents are reliant upon groundwater for their water supply and high-volume dewatering when added to existing drought conditions and projected population growth is putting increasing pressure on an already vulnerable geographic area.

55The Director submits that with respect to the Significant Harm test, CAMQ has only put forward concerns without providing a foundation to demonstrate that the Director’s decision could cause significant harm to the environment. Nonetheless, the Director did argue that low-water advisories are not associated with ground water availability and that the inclusion of Condition 3.5 will augment the flow in stressed water features without impacting local groundwater users and groundwater triggers were included in the contingency plan set out in Condition 5.3.

56The Instrument Holder submits that CAMQ has merely alleged that there is potential for significant environmental harm without providing any evidence in support. It argues that the findings set out in the King Affidavit confirm that Condition 3.5 is reasonable and appropriate for a number of reasons including: the Subject Property has operated below the water table for more than 20 years without impacts to local wells or ecological functions; the monitoring program is adequate to protect local groundwater users and groundwater dependent ecosystems; and years of hydrogeological investigations confirm that the majority of water takings from the Subject Property originate from precipitation.

57The Tribunal finds that CAMQ has not provided evidence to demonstrate that pre-existing conditions in the area create potential for significant environmental harm resulting from Condition 3.5. There have been investigations and studies performed over the years demonstrating that the protections contained within Condition 3.5 and the monitoring and contingencies contained within the 2021 PTTW will benefit the natural environment.

Potential Environmental Impacts Arising from Condition 3.5

58CAMQ submits that the Director’s revision and imposition of Condition 3.5 has the potential to cause, or materially contribute to, significant environmental harm. It submits that there is no evidence that the Director considered the long-term or cumulative effects that the water taking permitted by the 2021 PTTW allows. It argues that the rewording of Condition 3.5 has considerable potential to cause off-site impacts to the environment and neighbours.

59The Director submits that the former Condition 3.3 was included in the 2015 PTTW and it was found by the Tribunal that the Subject Property “…has been excavated at levels below the shallow aquifer for the last 20 years, including during dry years, without direct adverse impacts to existing water users.” He argues that there is no foundation put forward by CAMQ to support this submission and that the additional limits included in Condition 3.5 will in fact provide additional protection to the environment and neighbours.

60The Tribunal finds that CAMQ has failed to provide evidentiary support that significant harm to the environment could result from the inclusion of Condition 3.5 in the 2021 PTTW.

Inadequate Wording of Condition 3.5

61CAMQ submits that the Director purported to address water-taking concerns during drought conditions by including Condition 3.5. It argues that the vague wording and deletion of the quantity constraints render Condition 3.5 inadequate to anticipate or prevent significant environmental harm from occurring during drought conditions. It submits that the Director should have retained the restrictions contained in the ERT approved 2015 PTTW. For greater certainty, CAMQ submits that Condition 3.5 should retain the daily limit and impose a deadline on the Instrument Holder to prepare and submit for Ministry approval a plan governing the nature, extent and volume of water-takings permitted during low-water declarations. It submits that the wording of Condition 3.5 is ambiguous, and further plans and compliance incentives are required. CAMQ reiterates this position in reply to the Director’s submissions.

62The Director submits that CAMQ was consulted regarding the proposed terms and condition of the 2021 PTTW and that CAMQ had indicated that it was pleased with the updates to Condition 3.3. Subsequent to these consultations, the Director included minor amendments to Condition 3.5 to clarify that only water received by precipitation during a low-water advisory could be removed.

63The Instrument Holder submits that the wording of Condition 3.5 is not vague, rather it provides a clear and reasonable limit on water taking which can be easily calculated. The suggested plan put forward by CAMQ does not provide any benefit to the environment as Condition 3.5 is already clear and unambiguous. It submits that the Director’s inclusion of Condition 3.5 was reasonable, and the wording is appropriate and clear.

64The Tribunal finds that the Director acted reasonably in including Condition 3.5 and that its wording is clear and appropriate. It provides the Instrument Holder with a measurable calculation and protects the environment more effectively than the prior Condition 3.3.

65CAMQ submits that a compliance track record should be considered by the Director when deciding whether an Instrument should be issued and/or conditions that should be included. It submits that the Instrument Holder has a history of non-compliance and the Director failed to consider this in the issuance of the 2021 PTTW. CAMQ submits in reply that the Instrument Holder does not provide an evidentiary basis confirming the operating hours of the Quarry that would preclude it from entering in the evenings or on weekends.

66The Director submits that the rewording of Condition 3.5 addresses the limits that were inherent in the former Condition 3.3 and created operational difficulties for the Instrument Holder. The former condition assumed that access to the Subject Property was possible daily when the Instrument Holder was not permitted to enter the Subject Property on evenings or weekends. As such, the Instrument Holder was unable to strictly comply with the former Condition 3.3 making a revision to the condition a necessity. The rewording of Condition 3.5 continues to restrict the amount of water discharged while at the same time addresses accessibility to the Subject Property.

67The Instrument Holder submits that the operational difficulties inherent in the former Condition 3.3 made compliance impossible on a few occasions but that those instances of non-compliance did not cause any adverse impacts on the environment. It argues that the difficulties encountered with the former Condition 3.3 are the rationale behind the rewording and inclusion of Condition 3.5. In addition, the former non-compliance of the Instrument Holder cannot be equated with future non-compliance.

68The Tribunal finds that operational difficulties were inherent in former Condition 3.3 and that this was the rationale behind the rewording and inclusion of Condition 3.5. The Tribunal accepts the submissions of the Director and the Instrument Holder that the brief periods of non-compliance did not result in significant harm to the environment.

Conclusions on the Significant Harm Test

69The issue to be determined by the Tribunal under the environmental harm test is whether it appears that the Director’s decision to issue the 2021 PTTW could result in significant harm to the environment.

70The Tribunal finds that there is no evidence that the Director’s decision to issue the 2021 PTTW could result in significant harm to the environment.

CONCLUSIONS

71The Tribunal finds that CAMQ have not satisfied the tests for standing and leave to appeal under s. 38 and s. 41 of the EBR.

DECISION

72The Tribunal finds that the Citizens Against Melrose Quarry has not satisfied the test for leave to appeal found under s. 41 of the Environmental Bill of Rights, in relation to Permit to Take Water No. 4242-C2PM2T. The application for leave to appeal is dismissed in its entirety.

“C. Hardy”

C. HARDY MEMBER

“D. Chipman”

D. CHIPMAN MEMBER

Ontario Land Tribunal Website: 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.