Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: November 23, 2022

CASE NO(S).: OLT-22-002107 (Formerly 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.: OLT-22-002107

Legacy Case No.: PL190600

OLT Lead Case No.: OLT-22-002107

Legacy Lead Case No.: PL190600

OLT Case Name: North Shore Environmental Resource Advocates Inc. v. The North Shore (Township)

PROCEEDING COMMENCED UNDER subsection 10(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6

Request by: Darien Aggregates Inc.

Request for: Request for Directions

OLT Case No.: OLT-22-002107

OLT Lead Case No.: OLT-22-002107

Heard: February 23, 2022 by video hearing

APPEARANCES:

Parties	Counsel
North Shore Environmental Resource Advocates Inc.	David Donnelly (Student-at-law: Martin Siek)
Darien Aggregates Inc.	David Germain, Jeffrey Wilker
Township of The North Shore	Matthew Shoemaker
Ministry of Northern Development, Mines, Natural Resources and Forestry (“NDMNRF”)	Zachary D’Onofrio (Student-at-law: Madhavi Gupta)

DECISION DELIVERED BY JATINDER BHULLAR AND ORDER OF THE TRIBUNAL

1This Decision and Order results from a motion on the appeal by North Shore Environmental Resource Advocates Inc. (“NSERA”), pursuant to s. 34(19) of the Planning Act (“Act”), against a decision to approve an application by Darien Aggregates Inc. (“Darien”) by the Township of The North Shore (“Township”). The approval was granted by the Township on November 6, 2019 for the Zoning By-law Amendment (“ZBA”) through By-law No. 19-22. The ZBA rezones the lands 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”) 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 Applicant seeks a permit from the Ministry of Northern Development, Mines, Natural Resources and Forestry (“NDMNRF”) for proposed extraction of aggregates with annual tonnage limit of 2,000,000 tonnes on Crown Lands.

MOTION

3Darien brings forth the following motion to address the following questions:

1. Does s. 34(9) of the Aggregate Resources Act, R.S.O. 1990, c. A.8 (“ARA”), render the appeal of ZBA No. 19 - 22 moot?
2. Does the ARA, including s. 34(9) permit municipal by-laws to regulate the operation of quarries on Crown Land?

4Darien Seeks the following relief from the Tribunal:

1. an order determining that the appeal of ZBA No. 19-22 is moot;
2. an order determining that ZBA No. 19-22 cannot regulate the operation of a quarry on Crown Land; and
3. such further and other relief as counsel may request and the Tribunal may permit.

5The materials before the Tribunal on this motion are as follows:

1. Darien Aggregates Inc. a. Affidavit of Service; ANGELA HATZIPANTELIS – November 24, 2021 b. Motion Record – Darien Aggregates Inc. c. Factum – Darien Aggregates Inc. d. Brief of Authorities – Darien Aggregates Inc. e. Reply Factum – Darien Aggregates Inc. f. Reply Brief of Authorities – Darien Aggregates Inc.
2. Township of The North Shore a. Responding Record – Municipality (06-December-2021) b. Factum – Municipality (03-December-2021) c. Book of Authorities – Municipality (06-December-2021)
3. NSERA a. Affidavit of Justine Reyes (07-January-2022) b. NSERA – Notice of Response to Motion (07-January-2022) c. NSERA – Factum (07-January-2022) d. NSERA Book of Authorities (07-January-2022)
4. NDMNRF a. NDMNRF - Notice of Response (06-December-2021) b. NDMRF - Factum (06-December-2021) c. NDMRF - Book of Authorities (06-December-2021)

DARIEN GROUNDS FOR THE MOTION

6Darien provided descriptive background that was not opposed by the other parties which is included and tabulated in Exhibit 1.

1. On March 7, 2016 Darien made an application for an aggregate permit under Part V of the ARA for which no decision has been made by NDMNRF as of the time of this motion;
2. Initially, the NDMNRF advised Darien that Crown Land is not subject to municipal planning, that municipal zoning by-laws do not restrict Crown authorized activities on Crown Lands;
3. On July 12, 2018, NDMNRF revised its advice to the applicant stating: While municipal zoning by-laws do not bind the Crown, they may bind private persons or corporations undertaking activities on Crown lands within a municipality. It is the responsibility of the applicant and the municipality to determine if a conflict exists between the zoning by-law and a potential aggregate permit, and whether a zoning by-law amendment or Official Plan amendment is required.
4. Given the uncertainty implied by the Ministry’s revised advice, and out of an abundance of caution, Darien applied to the Township to amend the zoning of the subject lands from Restricted Open Space to Aggregate Extractive.
5. The Township’s planning consultant recommended approval of the ZBA, and, on November 5, 2019, it was approved by the Township Council, and this was appealed by NSERA on November 26, 2019.

7Darien submits that further changes were implemented by the province in the context of the ARA as follows:

6. Bill 132 2019: An Act to reduce burdens on people and businesses by enacting, amending and repealing various Acts and revoking various Regulations (“Bill 132”). Bill 132, which received Royal assent on December 10, 2019, amended the ARA, among other acts. One of the amendments to the ARA was the introduction of s. 34(9), which reads as follows: Inoperative by-law (9) If a zoning by-law includes a prohibition against a site being used for the making, establishment or operation of pits and quarries, the prohibition is inoperative where the surface rights are the property of the Crown.

QUESTION 1

MOOTNESS OF THE APPEAL: SUBMISSIONS

8Darien submits as follows:

The Appeal is Moot

1. The Appellant opposes the rezoning of the subject lands to permit the proposed quarry.
2. However, because the Township’s zoning by-law cannot prohibit or regulate the establishment or operation of a quarry on the subject lands, the appeal before the Tribunal is moot.
3. Section 34(9) of the ARA explicitly provides that a zoning by-law cannot prohibit the establishment of a quarry on Crown Lands. The Ministry has agreed with this interpretation. The only way in which a zoning by-law could limit the size of the proposed quarry, would be to prohibit quarrying on certain parts of the subject lands. This would constitute a prohibition in those locations, and would be inoperative pursuant to s. 34(9) of the ARA.
4. Similarly, the ZBA cannot regulate the proposed quarry. Section 66 of the ARA provides that any municipal by-law which deals with the same subject matter as the ARA, a permit or a site plan is inoperative. The subject matter of the ARA is the control and regulation of aggregate operations on Crown and private lands. Thus, any by-law which seeks to regulate the operation of a quarry on the subject lands deals with the same subject matter as the ARA and is inoperative pursuant to s. 66 of that act.
5. In light of sections 34(9) and 66 of the ARA, the outcome of this appeal will have no practical effect on the Ministry’s ability to issue an Aggregate Permit for the proposed quarry, or on Darien’s ability to operate that quarry, should an Aggregate Permit be granted. As such, the appeal is moot.
6. The Appellant intends to call expert witnesses in 9 separate disciplines in support of its appeal. This would result in a lengthy hearing.
7. It is not in the public interest to use the Tribunal’s limited resources to hear a lengthy appeal on issues that are purely site specific, the outcome of which will have no impact on the Applicant’s ability to establish a quarry.

9Darien also provided supporting Affidavit of David Sisco, a Registered Professional Planner. The Affidavit of Mr. Sisco was sworn on November 22, 2021.

TOWNSHIP RESPONSE

10The Township seeks the following relief which supports the Danier motion as follows:

1. An order that the Appellant’s appeal of By-Law 19-22 of the Township of the North Shore, is moot.

11The Tribunal notes the following from Township’s submissions (Exhibit 2) where the Township argues as follows:

1. The Township does not believe that By-law 19-22 is of any force or effect given the provisions of the ARA which set out a complete code for approval of a quarry on Crown Land.
2. Because the provisions of the ARA set out a complete code for approval of a quarry on Crown Land, the ARA overrides any municipal approval required, and as such, any municipal approval given, such as that given by approving re-zoning the subject lands in the within matter, is moot. The Township further submits that s.66(1) of the ARA effectively removes complete jurisdiction from the municipality in the approval or regulation of a site for which a permit or licence would be required under the ARA.
3. Section 66(1) of the ARA is set out below for ease of reference: Act overrides municipal by-laws, etc. 66 (1) This Act, the regulations and the provisions of licenses and permits and site plans apply despite any municipal by-law, official plan or development agreement and, to the extent that a municipal by-law, official plan or development agreement deals with the same subject-matter as this Act, the regulations or the provisions of a licence or permit or a site plan, the by-law, official plan or development agreement is inoperative. 1999, c. 12, Sched. N, s. 1 (4); 2019, c. 14, Sched. 15, s. 17.
4. The By-law at issue in this appeal, North Shore By-law 19-22, re-zones provincially owned Crown Land from Restricted Open Space to Aggregate Extraction Zone, which would allow the operation of the proposed below-water quarry.
5. It was determined, by the Ontario Court of Appeal, in Hill & Hill Farms Ltd. v. Bluewater (Municipality), 2006 CanLII 31802 (ON CA), 82 O.R. (3d) 505, Para 17 that a zoning by-law is a municipal by-law for the purposes of interpreting provincial legislation: As I have indicated, a central issue on this appeal is the Divisional Court's interpretation of the term, "municipal bylaw" in s. 6(1) as excluding a zoning by-law. That interpretation led the court to conclude that the Board lacked jurisdiction to decide whether the Municipality's zoning by-law restricted a normal farm practice. Applying Driedger's approach to statutory interpretation, there are five reasons why the Divisional Court erred in its interpretation.
6. As noted throughout Darrien’s Motion Record and Factum, regardless of the interpretation of s.34(9) of the ARA, the Ministry of Northern Development, Mines, Natural Resources and Forestry must provide an aggregate permit to Darrien to operate the proposed quarry before operations can begin on site.
7. Assuming then for a moment that no other regulatory framework existed for the operation of a quarry in Ontario, the re-zoning of the subject lands would have the effect of permitting Darrien to operate a quarry on the subject lands. That is, it is a carte-blanche approval to re-zone the subject lands and it does not require anything further to be done by Darrien as a condition of the approval.
8. The ARA sets out an extensive process to be followed for Darrien to apply for and attempt to receive an aggregate permit under Part V of the ARA.
9. As part of the application process for an aggregate permit, Darrien is required to make application for an Aggregate Permit under s.34(4).
10. As part of the application review, the Minister of Northern Development, Mines, Natural Resources and Forestry is required to consider the public interest as part of the permit application process (s.34(6)), may require the applicant to “furnish such additional information … as is considered necessary” (s.34(6.6), may require the applicant to submit a custom plan where applicable (s.35(1)), requires the applicant to comply with a custom plan (if such custom plan is approved) (s.35(5)), and requires the applicant to prepare and submit a site plan as part of the application process (s.36). The Minister may further issue such conditions as he or she deems necessary in issuing an aggregate permit (s.37).
11. As can be seen from a complete review of Part V of the ARA and the brief synopsis of Part V set out above, the approval of a quarry is a defined process under the ARA with extensive requirements, conditions and restrictions.
12. If the above is accepted as true, one must then conclude that the approval of a quarry is the subject matter of an aggregate permit application (and the aggregate permit itself, if the application is successful).
13. As noted above, the re-zoning of the subject lands, would, in the absence of any other regulatory regime for the approval of a quarry, be a carte-blanche approval of Darrien’s right to operate a quarry on the subject lands.
14. Since an approval of a quarry is the subject matter of an aggregate permit, and the municipality has, in essence, approved the operation of the quarry by imposing no restrictions or conditions on their re-zoning approval, then the re- zoning by-law “deals with the same subject-matter as [the ARA]” and is therefore inoperative in accordance with s.66(1) of the ARA.
15. As the re-zoning by-law is inoperative pursuant to the operation of s.66(1) of the ARA, then the OLT appeal at issue in the within matter is moot as there is effectively no by-law to appeal.
16. The appellant’s recourse lies within the public engagement provisions of Part V of the ARA, or, in the absence of the Minister undertaking public engagement, through the judicial review process.
17. The Tribunal is not the proper jurisdiction for the within dispute to be litigated, and the appeal should be deemed moot.

NSERA RESPONSE

12NSERA seeks the following relief (Exhibit 4):

1. A finding that the appeal of the ZBA is not moot; and
2. An order that the appeal of the ZBA proceed to a hearing on the merits before the Tribunal, after having established a Procedural Order at a Case Management Conference.

13NSERA argues that:

1. Bill 132 prohibits certain municipal acts such as preventing below water table mineral extraction and prohibiting new quarries on Crown Land.
2. It is NSERA’s position that the new Subsection 34(9) of the ARA does not erase the ability of a municipality to regulate the operation of a quarry on Crown Land through a corresponding municipal by-law.
3. NSERA further submits that a finding by the Tribunal that a municipality is not able to regulate the operation of a quarry within its borders would create an inequitable result that would frustrate the powers and responsibility of a municipality designated under the Act.

14NSERA further argues and submits that:

1. NSERA disagrees with Darien’s purposive reading of Section 34(9) of the ARA, which purports to interpret this section as rendering all regulation through a municipal by-law inoperative where the surface rights are that of the Crown.
2. There is no conclusive discourse suggesting that legislators intended to eliminate the ability of municipalities to regulate quarries under the ARA. Contrary to this, there is clear case law set out in Glover v. Sam Kee, 1914 CanLII 657 (BC SC) and Totangi Forestry Ltd. v. District of Metchosin, 2003 BCSC 1617 outlining the difference in the court’s treatments of prohibitive provisions versus regulations, distinguished by how such provisions alters the uses established on the land.

Statutory Interpretation

1. NSERA respectfully submits that, in fact, neither a purposive nor literal reading of the new Bill 132 ARA sections 34(9) and 66 produces an outcome where anything other than only prohibitive inclusions to a zoning by-law are rendered inoperative on Crown Land.
2. Both a purposive reading of the legislation, and consideration of jurisprudence indicate that the intention of the legislators was to simply stop municipalities from prohibiting pits and quarries when the rights of the Crown are engaged by land ownership, i.e. on Crown Land.
3. The Oxford English Dictionary Online defines the term “prohibition” as follows: prohibition, n.
   2. The action or act of forbidding; an edict, decree, or order which forbids, prevents, or excludes; the forbidding or condemnation of something; an embargo or restriction against something. [Emphasis added.] “prohibition, n.” Oxford English Dictionary Online. Oxford University Press, December 2021. Web. 4 January, 2022.
4. A “prohibition” has a clear meaning. It means forbidden or not allowed.
5. The plain meaning of s. 34(9) is that municipalities cannot forbid new pits or quarries on Crown Land.
6. The obvious inference to be drawn is that municipalities can continue to regulate such operations.

15NSERA in reviewing “regulation” versus “prohibition” refers to the following and argues:

1. Ruth Sullivan discusses several presumptions of legislative drafting in her text Sullivan on the Construction of Statutes, 6th ed. One such presumption is that of implied exclusion or expression unius est exclusion alterius: §8.55 Expressio unius is based on a reader's legitimate expectation that the text in question will refer to a particular thing expressly. When this expectation is not met, when the text is silent with respect to the thing in question, interpreters infer that the silence was deliberate: the thing is not mentioned because the legislature intended to exclude it. This inference is based on the presumptions of perfection, consistent expression and orderly arrangement. Like the inferences underlying the associated words and limited class maxims, expressio unius is not conclusive of legislative intent. It must be tested against other possible explanations for what the drafter has done. [Emphasis added.]
2. Sullivan notes that legislators are presumed to always say what they mean. In Dillon v. Catelli Food Products Ltd., 1973 CarswellOnt 3, Ridell J.A. wrote: 195 But remedial as it is, the statute is also confiscatory. It takes away from the public school system certain moneys which theretofore that system received. There is no reason why the statute should be read in any different way from any other statute. The modern principle is to credit the legislators with knowing what they intend to enact into law, and with a knowledge of the English language which enabled them to express their meaning. A statute is, except in certain cases not necessarily to be noted here, to be read giving the words employed their natural meaning, and neither “liberally” nor “strictly”.
3. Sullivan uses the term “implied exclusion” because it describes the inference underlaying this maxim: §8.90 An implied exclusion argument lies whenever there is reason to believe that if the legislature had meant to include a particular thing within its legislation, it would have referred to that thing expressly. Because of this expectation, the legislature’s failure to mention the thing becomes grounds for inferring that it was deliberately excluded. Although there is no express exclusion, exclusion is implied. As Laskin J.A. succinctly put it, "legislative exclusion can be implied when an express reference is expected but absent". The force of the implication depends on the strength and legitimacy of the expectation of express reference. The better the reason for anticipating express reference to a thing, the more telling the silence of the legislature. University Health Network v. Ontario (Minister of Finance), 2001 CanLII 8618 (ON CA), [2001] O.J. No. 4485, at para 32.
4. In other words, it can be properly inferred that there is no prohibition on municipal regulation on quarries on Crown Land, because the legislature omitted to state this expressly.
5. It can be inferred from the express usage of both prohibition and regulation throughout the ARA as separate and distinct, that these terms were not meant to be interchangeable.
6. Further, this purposive approach to statutory interpretation has been adopted by the Supreme Court of Canada in Rizzo v. Rizzo Shoes Ltd., Re 1998 CanLII 837 (SCC) which states that: 21 Although much has been written about the interpretation of legislation) see e.g., Ruth Sullivan, Statutory Interpretation (1997); Ruth Sullivan, Dredger on the Construction of Statutes (3rd ed. 1994) (hereinafter “Construction of Statutes”); Pierre-André Côté, The Interpretation of Legislation in Canada (2nd ed. 1991)), Elmer Driedger in Construction of Statutes (2nd ed. 1983) best encapsulates the approach upon which I prefer to rely. He recognizes that statutory interpretation cannot be founded on the wording of the legislation alone. At p. 87 he states: Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. 22 I also rely upon s.10 of the Interpretation Act, R.S.O. 1980, c. 219, which provides that every Act “shall be deemed to be remedial” and directs that every Act shall “receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit”.
7. By this definition, purpose can be inferred from the text of the statute, from the entire legislative scheme, context, and from tracing legislative evolution.

16NSERA in reviewing the amending provisions in Bill 132 postulates that:

1. The intent of the government was very clear: it wanted to eliminate duplication between Ministries – not eliminate municipal regulatory authority on Crown Land.
2. The permit process outlined under Part V of the ARA does not function to regulate concerns that are under a municipality’s purview and compliance regime, such as noise, dust, and traffic, and therefore cannot be said to be a redundant regulatory scheme for the purposes of Bill 132.
3. If it had truly been the intention of the legislature to take away municipal regulation and governance on Crown Lands, they ought to have informed people, but did not do so. The obvious explanation for this is that this was not their intention, as the words of Bill 132 clearly state.

17NSERA contests NDMNRF position and argues that:

1. The Ministry submitted the following: Subsection 12.1(1.1) of the ARA, which came into force at the same time as Subsection 34(9), demonstrates that the term “prohibition” in the ARA may include not only blanket prohibitions, but also restrictions imposed through zoning by-laws that amount to limited prohibitions. That provision states that if a zoning by-law prohibits aggregate operations on a site, any restriction with respect to depth of extraction is inoperative. The word “prohibit” in that provision cannot only refer to absolute prohibitions, since the concept of a “restriction” regarding depth of extraction at the site would be meaningless if all aggregate extraction was already prohibited: Factum of the Ministry, at para. 22.
2. This interpretation is incorrect for four reasons.
   1. First, it repeats the error of misinterpreting the plain meaning of “prohibition”, which is not equivocal. A prohibition is a prohibition. Second, as confusing as s. 12.2(1.1) of the ARA is, at least the intent of barring municipalities from regulating below water table extraction was clearly articulated by Mr. Harris, MPP (PC Kitchener-Conestoga) representing the government.
   2. Third, the argument that Ontario law prohibits all activity, but the regulated prohibited activity is fallacious. For example, all persons over 16 years of age are not prohibited from driving a car. Drivers are instead regulated, having to meet certain conditions in order to drive legally.
   3. It would be absurd to suggest there is a “limited prohibition” on driving in the province over the age of 16. Instead, Ontario regulates driving in Ontario, with certain restrictions.
   4. Fourth, and most importantly, the nature of prohibitions versus regulation is well established in case law. Using s. 12.1 of the ARA to explain away or “cure” the defect in s. 34(9) flies in the face of this jurisprudence.

18NSERA concludes and argues that:

1. The courts have clearly distinguished the difference between a prohibition and a regulation, especially in constitutional cases regarding conflicting laws: 258 The distinction between simple prohibition of conduct and the wholesale regulation of it remains one of critical importance. Legislative schemes might be said to fall along something of a continuum between simple prohibitions coupled with penalties on the one hand, and the complex regulation of an activity on the other. As the scheme becomes more complex and elaborate, the likelihood that it will be upheld under the criminal law power seems to diminish. Complexity of a regulatory scheme is not the only factor that will be considered by a court, however. An assessment of whether the dominant aspect of the legislation is to prohibit unlawful conduct, or rather set the conditions for lawful conduct, remains a key component of the analysis. Despite the apparent importance of the distinction between regulation and prohibition, however, characterizing a legislative scheme as one or the other clearly remains more of an art than a science. [Emphasis added.] Alison Harvison Young & Angela Wasunna, “Wrestling with the Limits of Law: Regulating New Reproductive Technologies” (1998), 6 Health L.J. 239 at 258.
2. With respect to the distinctions between prohibition and regulations under municipal by-laws, courts have been clear.
3. In Glover v. Sam Kee, the Supreme Court of British Columbia uses the terms “prevention” and “prohibition” interchangeably and stated that there is a distinct difference between these terms and “regulation”: 11 It was contended that the by-law in its wording was prohibitive and not regulative. There is a great difference between prevention and regulation, and even between restraint and regulation, but I do not consider that the by-law, except as to creating a restricted district, bears the construction this sought to be placed upon it, nor do I think it is a by-law in restraint of trade. [Emphasis added.] Glover v. Sam Kee, 1914 CanLII 657 (BC SC)
4. In Totangi, an impugned by-law which set noise limits for a quarry operation was challenged as prohibitive. The Supreme Court of British Columbia found the prohibitory clauses were severable from the regulatory clauses in the by- law, and stated: [37] I am satisfied that although s. 29 (1)(h) of the bylaw (concerning 25 mg/litre of suspended solids in water) is of no force or effect until approved by a minister, the remaining provisions of the bylaw articulate a regulatory scheme that can operate absent that one provision. I also observe, as a practical matter, that to sever the suspended solids clause does not give Totangi freedom to contaminate water, for it is still bound by the water management and sediment control provisions contained in the permit issued by the Ministry of Energy and Mines on April 15, 2003. [38] The security provision, being beyond the statutory powers of the Metchosin council, cannot be said to be necessary to the operation of the bylaw. [39] In short, I conclude these provisions do not go to the heart of the bylaw which is intended to regulate the removal and the deposit of soil. I find they are severable and I would order those provisions to be severed. [Emphasis added.] Totangi Forestry Ltd. v. District of Metchosin, 2003 BCSC 1617
5. In other words, courts have recognized municipal regulation of quarries as being distinct from a prohibition or limited prohibition.
6. Pursuant to this, NSERA does accept that there would be no statutory right for the Township to stop the quarry outright or regulate underwater-table extraction. Factum of the Ministry at para. 22.
7. However, it cannot be said that regulating the amount of aggregate from the proposed quarry is the same as regulating the use of the land for the purposes of s. 34(9).
8. The appeal before the Tribunal is concerned with more than simply espousing to limit the amount of extraction being taken from the proposed quarry. Aspects of the appeal such as the impact and mitigation of haul routes on traffic safety, dust and noise, natural heritage system planning, and species at risk within the Township’s borders are also at question.
9. The impact of these aspects extends beyond the boundaries of the Crown Land, e.g., municipal natural heritage systems, haul route, noise, dust, etc. that is the subject of this appeal, and fall squarely within the purview of the Tribunal under the PA.
10. Respectfully, a quarry cannot be said to operate in a bubble and without impacts to the surrounding land and community, simply by virtue of existing and operating on Crown Land.
11. The determination and mitigation of these effects and impacts are delegated to the municipality under the PA and should fall within the direct authority and review of the Township.
12. Section 1.1 of the Act sets out the purposes of this authority delegated to Municipalities: 1.1 The purposes of this Act are, (a) to promote sustainable economic development in a healthy natural environment within the policy and by the means provided under this Act; (b) to provide for a land use planning system led by provincial policy; (c) to integrate matters of provincial interest in provincial and municipal planning decisions; (d) to provide for planning processes that are fair by making them open, accessible, timely and efficient; (e) to encourage co-operation and co-ordination among various interests; (f) to recognize the decision-making authority and accountability of municipal councils in planning.
13. The Township and its residents are important stakeholders with respect to the determination and mitigation of these issues as they have a direct stake in the community that would be impacted by the proposed quarry.
14. If Darien’s position prevails, there is no appeal right under Part V of the ARA available to residents.
15. Engaging with residents per s. 35(1) and O. Reg. 244/97 under the ARA cannot substitute for this right of appeal to the Tribunal. Regardless of the outcome of the permit application, the decision is ultimately with the Minister, and the decision is final.
16. If it had been the intention of the legislature to deprive citizens of these rights on Crown Land, it ought to have said so.

DARIEN REPLY RESPONSE

19Darien argues in reference to NSERA response as follows:

1. The response by the Appellant NSERA in this matter is based on a false premise: that prior to the passage of s. 34(9) of the ARA, municipal zoning by-laws could regulate the operation of quarries on crown land. NSERA Factum paras. 6 and 21
2. Darien submits that s. 34(9) of the ARA did not take away the ability of zoning by- laws to regulate aggregate extraction. Zoning by-laws never had this function. It is noteworthy that the zoning by-law amendment under appeal in this matter does not purport to regulate aggregate extraction, only to permit it. Affidavit of David Sisco, Nov. 22, 2021, Exhibit F
3. On privately owned lands, zoning by-laws determine whether or not aggregate extraction is a permitted or a prohibited use. If permitted, that use is regulated by means of site plans approved under the ARA. The ARA site plan is the instrument which set out the provisions required to prevent or mitigate adverse impacts or extraction, if any. Aggregate Resources Act, R.S.O. 1990 c. A.8 s. 8, 12.1, 36 and Planning Act R.S.O. 1990 c. P. 13, s. 34(1)
4. The extent to which zoning by-laws can regulate rather than prohibit land uses is limited to the specific matters set out in s. 34(1) 4-6 of the Planning Act, none of which is relevant to the operation of an aggregate pit or quarry. Planning Act R.S.O. 1990 c. P. 13, s. 34(1)
5. The British Columbia case law relied on by the Appellant has no relevance to the matter before the Tribunal. It is based on a different statutory scheme than that which governs aggregate extraction in Ontario. Local Government Act R.S.B.C c. 323 s. 723
6. The Ontario Municipal Act, 2001, specifically provides that municipal by-laws regulating the operation of pits and quarries do not apply in parts of Ontario governed by the ARA. Municipal Act 2001, S.O. 2001 c. 25, s. 124
7. The Township of the North Shore is a part of Ontario that is governed by the ARA. O. Reg. 244/97 s. 6(4), Schedule 4 s. 12(c)
8. To the extent that municipalities in Ontario have general powers to regulate noise, dust and other impacts, or the protection of woodlands, etc. their powers to do so arise under the Municipal Act, 2001. Those powers cannot be exercised in a zoning by-law and the Tribunal has no jurisdiction over the exercise of those powers. Municipal Act by-laws remain subject to s. 66 of the ARA. Municipal Act 2001, S.O. 2001 c. 25, s. 129, 135
9. The Appellant has asserted that the Province did not clearly state its intent to exempt aggregate extraction on Crown Land from municipal Zoning By-laws. This is not correct. NSERA Factum para. 34-35
10. The Provincial Government undertook a process of public consultation on the proposed Bill 132 amendments to the ARA. In the course of that consultation, the Province made it clear that one of the purposes of Bill 132 was to clarify that municipal zoning by-laws do not apply to aggregate extraction on Crown Lands.
11. Environmental Registry of Ontario posting no. 019-0556
12. The Appellant asserts that “the determination and mitigation of these effects and impacts [natural heritage, haul routes, noise, dust, etc.] are delegated to the municipality under the PA and should fall within the direct authority and review of the Township.” This proposition is legally wrong. NSERA Factum paras. 50-53
13. Firstly, NSERA has provided no reference to any relevant statutory provision or case law that supports this assertion.
14. Secondly, regulating aggregate extraction operations and minimizing their impact on the environment are two of the specifically enumerated purposes of the ARA. Responsibility for the administration of the ARA rests with the Minister. Aggregate Resources Act, R.S.O. 1990 c. A.8 s. 2, 3
15. The consideration of aboriginal consultation is also expressly assigned to the Minister. Aggregate Resources Act, R.S.O. 1990 c. A.8 s. 3.1
16. Finally, provisions relating to noise and dust are set out in the Regulations under the ARA, as well as the Provinces’ Provincial Standards for Permit applications. O. Reg. 244/97 s. 0.12 and Provincial Standards of Ontario – Category 12 – Quarry Below Water on Crown Land
17. The purposes set out in s. 1.1 of the Planning Act are not themselves an independent source of municipal powers or jurisdiction. Planning Act, R.S.O. 1990 c. P. 13 s. 1.1
18. The ARA provides that objections to a licence for aggregate extraction on private land may be referred to the Tribunal for a hearing. However, the ARA does not provide for the referral of objections to permit applications on Crown Land. This reflects a clear choice by the Legislature to reserve exclusive jurisdiction over aggregate permits on Crown Land to the Minister and to exempt permits on Crown Land from the jurisdiction of the Tribunal. Aggregate Resources Act, R.S.O. 1990 c. A.8 s. 11(5), 44
19. The passage of s. 34(9) is consistent with this legislative intent in that it completes the removal of municipal and Tribunal jurisdiction over aggregate extraction on Crown Land.
20. A lack of appeal rights is not inequitable. There are several other types of land use approval which are also exempt from appeal by members of the public, including Planning Act site plans and plans of subdivision. Planning Act, R.S.O. 1990 c. P. 13 s. 41(12), (12.0.1), 51(39), (48.3)
21. The provision of appeal rights in some circumstances and not others reflects a policy choice that was made by the Legislature. The Legislature has enacted a statutory scheme wherein zoning by-laws can neither prohibit nor regulate aggregate extraction on Crown Lands. As a result, the appeal before the Tribunal in this matter is moot.

QUESTION 1

ANALYSIS: The Appeal by NSERA is Moot

20In coming to this finding, the Tribunal reviews the facts of the case and the evolution of the ARA as it impacts the appeal by NSERA.

21In the matter before the Tribunal regarding mootness of NSERA’s appeal, the following two steps are required for complete determination as set out in guiding case law noted later in this analysis:

1. Is the appeal by NSERA moot? and
2. Should the Tribunal use its discretion to hear the issue raised in the appeal by NSERA?

22There is no dispute that the Township has the right to establish Zoning for lands in its jurisdiction. As a result, the Tribunal finds that the Township ZBL and as amended per Darien’s application are grounded in due approval authority of the Township. Whereas the subject lands were not originally zoned for aggregates extraction; a previous zoning designation; the same were so approved for aggregates extraction in approval of Darien’s ZBA application. Thus, the two designations that have existed for the subject lands regarding extraction of aggregates are:

1. Not permitted use under original designation Restricted Open Space (ROS) Zone; and to
2. Permit under the approval of Darien application and the ZBA resulting in a designation as an Aggregate Extractive (MX) Zone

23The following identifies as extracted from the Township ZBA approval decision dated 5th of November, 2019:

Schedule 'A' of By-Law # 17-07 is hereby further amended by rezoning the lands, specifically shown hatched on Schedule "A" to By-law 19-22 and related to the Darien Quarry Site# 625990, in the former Township of Long, now in the Township of The North Shore, from the Restricted Open Space (ROS) Zone to Aggregate Extractive (MX) Zone to permit a new Class A-Category 12, below water quarry.

24NSERA in their appeal identify that the approved ZBL 19-22 is inappropriate due to the following mandatory and required considerations which it does not meet as it is:

a. Inconsistent with the Provincial Policy Statement, issued under subsection 3(1) of the Planning Act b. Fails to conform with or conflicts with a provincial plan c. Fails to conform with an applicable Official Plan

25If the Tribunal were to allow the NSERA appeal, the following Tribunal Order would ensue:

The TRIBUNAL ORDERS that the appeal against By-law 19-22 of the (name of municipality) is allowed and By-law 19-22 is hereby repealed.

26As a result, the Subject Lands would revert to Restricted Open Space (ROS) Zone without an allowed usage in the form of “Aggregates Extraction”.

27The Tribunal finds that NSERA appeal has but two outcomes:

1. If it succeeds, the zoning will return to Zoning By-law 17-07 and original Restricted Open Space (ROS) Zone which does not allow the lands to be used for “Aggregates Extraction”
2. If it fails, and ZBL 19-22 prevails and the zoning stays as Extractive (MX) Zone.

28Mootness is well established in a Supreme Court of Canada (SCC) decision in Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342 (“Borowski”) as was provided in the case law referred to by Darien.

The doctrine of mootness is part of a general policy that a court may decline to decide a case which raises merely a hypothetical or abstract question. An appeal is moot when a decision will not have the effect of resolving some controversy affecting or potentially affecting the rights of the parties. Such a live controversy must be present not only when the action or proceeding is commenced but also when the court is called upon to reach a decision. The general policy is enforced in moot cases unless the court exercises its discretion to depart from it.

The approach with respect to mootness involves a two-step analysis.

It is first necessary to determine whether the requisite tangible and concrete dispute has disappeared rendering the issues academic.

If so, it is then necessary to decide if the court should exercise its discretion to hear the case. (In the interest of clarity, a case is moot if it does not present a concrete controversy even though a court may elect to address the moot issue.)

29In establishing the aspects of the matter before the Tribunal with respect to the first test, the key requirement for determination is as follows:

1. How do the changes to legislation treat the two possible designations vis-à-vis the application by Darien for operation of a quarry on Crown Lands?

30NDMNRF argued and NSERA agrees that should the Township prohibit Aggregates Extraction that such zoning by-law would be inoperative per s.34(9) of the ARA.

31As submitted and reviewed by NDMNRF for the following in referring to section 2 of ARA:

Purposes of Act

2 The purposes of this Act are,

(a) to provide for the management of the aggregate resources of Ontario;

(b) to control and regulate aggregate operations on Crown and private lands; [emphasis added]

32It is clear that ARA section 2 for the purposes of matter at hand; namely Crown Lands; “controls and regulates aggregate Operations”.

33The Tribunal notes s. 34(9) of ARA as follows:

Inoperative by-law

(9) If a zoning by-law includes a prohibition against a site being used for the making, establishment or operation of pits and quarries, the prohibition is inoperative where the surface rights are the property of the Crown.

34Applying s. 34(9) to possible outcomes of NSERA appeal:

A. NSERA Appeal succeeds: a. Subject lands return to Zoning By-law No. 17-07 Restricted Open Space (ROS) Zone which prohibits for lands to be used for to be used for “Aggregates Extraction” b. Application of s.34(9): Zoning By-law No. 17-07 is inoperative

B. NSERA appeal is denied: a. Subject lands maintain Zoning per By-law No. 19-22 and the zoning stays as Extractive (MX) Zone which allows “Aggregates Extraction” b. Application of s.34(9) is not necessary to allow for “Aggregates Extraction”

CONCLUSION: “Aggregates Extraction” is allowed if so, determined by NDMNRF under ARA and the NSERA appeal outcomes are of no consequence.

35Noting from Borowski the following:

Such a live controversy must be present not only when the action or proceeding is commenced but also when the court is called upon to reach a decision. The general policy is enforced in moot cases unless the court exercises its discretion to depart from it.

36The matter of the appeal and the basis thereof needs to be continued not only at the point that the appeal was made by NSERA but also at a possible future date of adjudication. As per the coming into force of s.34(9) of ARA, the appeal no longer maintains its basis and based on the conclusion that the outcome of the appeal is of no consequence to possible NDMNRF decision to allow “Aggregates Extraction” by Darien.

37The SCC further notes in Borowski as follows:

The second stage in the analysis requires that a court consider whether it should exercise its discretion to decide the merits of the case, despite the absence of a live controversy. Courts may be guided in the exercise of their discretion by considering the underlying rationale of the mootness doctrine.

The first rationale for the policy with respect to mootness in that a court's competence to resolve legal disputes is rooted in the adversary system. A full adversarial context, in which both parties have a full stake in the outcome, is fundamental to our legal system. The second is based on the concern for judicial economy which requires that a court examine the circumstances of a case to determine if it is worthwhile to allocate scarce judicial resources to resolve the moot issue. The third underlying rationale of the mootness doctrine is the need for courts to be sensitive to the effectiveness or efficacy of judicial intervention and demonstrate a measure of awareness of the judiciary's role in our political framework. The Court, in exercising its discretion in an appeal which is moot, should consider the extent to which each of these three basic factors is present. The process is not mechanical. The principles may not all support the same conclusion and the presence of one or two of the factors may be overborne by the absence of the third, and vice versa.

The Court should decline to exercise its discretion to decide this appeal on its merits because of concerns for judicial economy and for the Court's role in the law-making process. The absence of an adversarial relationship was of little concern: the appeal was argued as fully as if it were not moot.

With respect to judicial economy, none of the factors justifying the application of judicial resources applied. The decision would not have practical side effects on the rights of the parties. The case was not one that was capable of repetition, yet evasive of review: it will almost certainly be brought before the Court within a specific legislative context or possibly in review of specific governmental action. An abstract pronouncement on foetal rights here would not necessarily obviate future repetitious litigation. It was not in the public interest, notwithstanding the great public importance of the question involved, to address the merits in order to settle the state of the law. A decision as to whether ss. 7 and 15 of the Charter protect the rights of the foetus is not in the public interest due to the potential uncertainty that could result from such a decision absent a legislative context.

A proper awareness of the Court's law-making function dictated against the Court's exercising its discretion to decide this appeal. The question posed here was not the question raised in the original action. Indeed, what was sought -- a Charter interpretation in the absence of legislation or other governmental action bringing it into play -- would turn this appeal into a private reference. The Court, if it were to exercise its discretion, would intrude on the right of the executive to order a reference and pre-empt a possible decision of Parliament by dictating the form of legislation it should enact. To do so would be a marked departure from the Court's traditional role.

38The Tribunal has considered the aspects of the appeal and issues raised therein. There is nothing unique in continuing to investigate the issues in the appeal per se that justify expending limited adjudicative processing resources at the Tribunal and to subject other affected parties to expend further monetary and time consuming efforts. The Tribunal thus would not exercise its discretion in this instance.

39The Tribunal having established that the results of appeal by NSERA are of no consequence in the ability of NDMNRF to determine any application of Darien for aggregates extraction on Crown Lands and the Motion of Darien supported by the Township succeed and the appeal of NSERA is moot

40The Tribunal in the order of completeness also finds that that there is no purpose served to further engage any adjudicative resources to proceed with any consideration of issues raised in NSERA appeal on their own merit.

QUESTION 2

Does the ARA, including s. 34(9) permit municipal by-laws to regulate the operation of quarries on Crown Land?

41NDMNRF specifically participated to address this particular question. NDMNRF submits and argues while seeking the following relief (Exhibit 3):

1. an order determining that ZBA No. 19-22 cannot regulate the operation of a quarry on Crown Land; and
2. such further and other relief as counsel may request and the Tribunal may permit.

42NDMNRF submits the following in respect to considerations under s. 34(1) of the Act:

6. Subsection 12.1(1) of the ARA sets out a general rule that, on private land, a licence may not be issued if it conflicts with the provisions of the local zoning by-laws. Zoning by-law prohibition on licence 12.1 (1) No licence shall be issued for a pit or quarry if a zoning by-law prohibits the site from being used for the making, establishment or operation of pits and quarries.

7. This restriction does not apply, however, with regards to zoning by-laws over Crown land or those that seek to restrict depth of extraction. This distinction was clarified through amendments to the ARA in 2019, as described below.

8. The power to make zoning by-laws respecting pits and quarries is a prohibitory power

9. Paragraph 1 of Section 34(1) of the Act allows municipalities to pass by-laws prohibiting the use of land, for or except for specified uses: Zoning by-laws 34 (1) Zoning by-laws may be passed by the councils of local municipalities: Restricting use of land

   1. For prohibiting the use of land, for or except for such purposes as may be set out in the by-law within the municipality or within any defined area or areas or abutting on any defined highway or part of a highway.

10. Subsection 34(2) of the Act specifies that the making, establishment or operation of a pit or quarry is a use of land for the purposes of that paragraph: Pits and quarries (2) The making, establishment or operation of a pit or quarry shall be deemed to be a use of land for the purposes of paragraph 1 of subsection (1).

11. The zoning by-law currently prohibiting aggregate extraction on the land at issue is made under the authority of Paragraph 1 of Subsection 34(1) of the Act. The power of the municipality under that provision is a power to prohibit land uses.

12. An amendment to the by-law purporting to impose conditions on aggregate quarries would contain a more limited prohibition, in that it would prohibit only quarries that did not meet the specified conditions. It would nonetheless include a prohibition against those quarries that did not meet the specified conditions.

ii. Subsection 34(9) of the ARA renders zoning by-laws inoperative to the extent that they include any form of prohibition against a site being used for the making, establishment or operation of pits and quarries on Crown land.

12. Subsection 34(1) of the ARA requires that a person obtain a permit in order to operate a pit or quarry on Crown land: Aggregate permits 34 (1) No person shall, except under the authority of and in accordance with an aggregate permit, operate a pit or quarry, (a) to excavate aggregate or topsoil that is on land the surface rights of which are the property of the Crown, even if the surface rights are leased to another person; (b) to excavate aggregate or topsoil that is the property of the Crown from land under water; (c) to excavate aggregate or topsoil that is the property of the Crown in a part of Ontario that is not designated under section 5; or (d) to excavate aggregate that is not the property of the Crown from land under water.
13. Subsection 34(9) of the ARA, which came into force in 2019, states that a prohibition in a zoning by-law against a site being used for the making, establishment or operation of pits or quarries is inoperative where the surface rights are the property of the Crown. Inoperative by-law (9) If a zoning by-law includes a prohibition against a site being used for the making, establishment or operation of pits and quarries, the prohibition is inoperative where the surface rights are the property of the Crown.
14. The prohibition in the current zoning by-law against pits and quarries is therefore inoperative.
15. Likewise, a more limited prohibition in the zoning by-law based on conditions regarding pits and quarries would also be inoperative, since the power to pass such a by-law would also stem from Paragraph 1 of Subsection 34(1) of the Planning Act.

ii. Subsection 34(9) of the ARA must be read in light of the purposes of the Act

16. The interpretation of Subsection 34(9) of the ARA proposed by the Ministry is supported by a purposive reading of the provision and of the Act.
17. It is well-established that the provisions of an act are to be read in light of the scheme of the act, the object of the act, and the intention of the Legislature. Rizzo & Rizzo Shoes Ltd, Re, 1998 CanLII 837 (SCC), [1998] 1 SCR 27 at para 21.
18. The purposes of the ARA include controlling and regulating aggregate operations on Crown and private lands: Purposes of Act 2 The purposes of this Act are, (a) to provide for the management of the aggregate resources of Ontario; (b) to control and regulate aggregate operations on Crown and private lands; [emphasis added]
19. It would run counter to the purposes of the ARA if a zoning by-law could do through conditions what it could not do through blanket prohibition. Subsection 34(9) of the ARA is clearly aimed at giving the provincial Crown the authority to regulate aggregate operations on Crown Land through the ARA, rather than municipalities through zoning by-laws.
20. If conditions on pits or quarries included in zoning by-laws under the authority of Paragraph 1 of Subsection 34(9) of the Act were not considered prohibitions, a municipality could impose whatever conditions it pleased, even extremely onerous ones, as long as those conditions didn’t result in a total ban on aggregate operations. This interpretation would fly in the face of the purposes of the ARA and of the purpose of Subsection 34(9).

ii. Subsection 34(9) of the ARA must be read in context of the rest of the Act

21. A basic tenet of statutory interpretation from Ruth Sullivan’s fundamental text, Sullivan on the Construction of Statutes, is that “it is assumed that language is used consistently, that tautology is avoided, that the provisions of an Act all fit together to form a coherent and workable scheme.” The “presumption of coherence is also expressed as a presumption against internal conflict. It is presumed that the body of legislation enacted by a legislature does not contain contradictions or inconsistencies”. St. Jean (Litigation Guardian of) v Cheung, 2008 ONCA 815, at para 59. Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed (LexisNexis Canada Inc, 2014), c 11, §11.3.
22. Subsection 12.1(1.1) of the ARA, which came into force at the same time as Subsection 34(9), demonstrates that the term “prohibition” in the ARA may include not only blanket prohibitions, but also restrictions imposed through zoning by-laws that amount to limited prohibitions. That provision states that if a zoning by-law prohibits aggregate operations on a site, any restriction with respect to depth of extraction is inoperative. The word “prohibit” in that provision cannot only refer to absolute prohibitions, since the concept of a “restriction” regarding depth of extraction at the site would be meaningless if all aggregate extraction was already prohibited: Exception (1.1) If a zoning by-law prohibits a site in a part of Ontario designated under subsection 5 (2) from being used for the making, establishment or operation of pits and quarries, any restriction contained in the zoning by-law with respect to the depth of extraction at the site is inoperative.
23. Read in light of the rest of the ARA, the word “prohibit” in Subsection34(9) must be interpreted to encompass both absolute prohibitions, as well narrower prohibitions imposed through conditions. Inoperative by-law (9) If a zoning by-law includes a prohibition against a site being used for the making, establishment or operation of pits and quarries, the prohibition is inoperative where the surface rights are the property of the Crown.
24. The prohibition in the current zoning by-law against pits and quarries is therefore inoperative.

43The submissions of Darien, the Township and NSERA are composite and previously noted under the question of possible “mootness” of the appeal by NSERA.

QUESTION 2

ANALYSIS: The ARA, including s. 34(9) does not permit municipal by-laws to regulate the operation of quarries on Crown Land

44The key argument is whether ”a prohibition” or “regulation” by a zoning by-law espouse same essence or can be differentiated for determining the making, establishment or operation of pits or quarries on the property of the Crown.

45There is no dispute that an aggregate permit issued under the ARA is required for any authorized operation or a pit or quarry on Crown lands.

46The ARA s. 34(9) directs:

Inoperative by-law

(9) If a zoning by-law includes a prohibition against a site being used for the making, establishment or operation of pits and quarries, the prohibition is inoperative where the surface rights are the property of the Crown.

47NDMNRF highlighted that the ARA already explicitly states that one of the purposes of ARA is to control and regulate aggregate operations on Crown lands:

Purposes of Act

2 The purposes of this Act are,

(a) to provide for the management of the aggregate resources of Ontario;

(b) to control and regulate aggregate operations on Crown and private lands; [emphasis added]

48NDMNRF citing the ARA demonstrates that when compared to s.12.1(1.1) of ARA which came into effect at the same time as s. 34(9); the term “prohibition” not only covers blanket prohibition but also any restrictions imposed through a zoning by-law that amount to limited prohibitions.

49NSERA submitted that zoning by-laws are not trumped by ARA with respect to their ability to regulate through a well-established process to receive appropriate inputs and conduct reviews while facilitating public participation. NSERA in particular highlighted certain aspects that could be so addressed as noted before but repeated for quick reference below:

50The appeal before the Tribunal is concerned with more than simply espousing to limit the amount of extraction being taken from the proposed quarry. Aspects of the appeal such as the impact and mitigation of haul routes on traffic safety, dust and noise, natural heritage system planning, and species at risk within the Township’s borders are also at question.

51The Township submitted that the examples submitted by NSERA fail to recognize how the operation of pits and quarries is established through licenecing or issuing of permits under ARA. The Township submitted that the stated aspects by NSERA are specifically addressed through site plan conditions and other required reports or investigations that an applicant is required to submit as part of their application as deemed necessary by NDMNRF. The Township specifically noted how such is carried out and referred to the Darien motion record as follows:

16. The Report to Council of Stefan Szczerbak, M.SC, MCIP, RPP, relied heavily on the fact that the Ministry of Northern Development, Mines, Natural Resources and Forestry required reports, testing, conditions and restrictions on the establishment of a quarry as part of the aggregate permit process in concluding that the re-zoning should be approved by the Council of the Township .

Reference: Motion Record of the Moving Party, Exhibit E, Page 61.

18. The ARA sets out an extensive process to be followed for Darrien to apply for and attempt to receive an aggregate permit under Part V of the ARA.

19. As part of the application process for an aggregate permit, Darrien is required to make application for an Aggregate Permit (s.34(4)).

Reference: Aggregate Resources Act, R.S.O. 1990, CHAPTER A.8. s.34(4)

20. As part of the application review, the Minister of Northern Development, Mines, Natural Resources and Forestry is required to consider the public interest as part of the permit application process (s.34(6)), may require the applicant to “furnish such additional information … as is considered necessary” (s.34(6.6), may require the applicant to submit a custom plan where applicable (s.35(1)), requires the applicant to comply with a custom plan (if such custom plan is approved) (s.35(5)), and requires the applicant to prepare and submit a site plan as part of the application process (s.36). The Minister may further issue such conditions as he or she deems necessary in issuing an aggregate permit (s.37).

Reference: Aggregate Resources Act, R.S.O. 1990, CHAPTER A.8. ss.34(6), 34(6.6), 35(1), 35(5), 36, 37.

26. The appellant’s recourse lies within the public engagement provisions of Part V of the ARA, or, in the absence of the Minister undertaking public engagement, through the judicial review process.

52NDMNRF referred to s. 34(1) of the Act which directs what the Zoning By-laws could only permit or prohibit lands uses:

Zoning by-laws

34 (1) Zoning by-laws may be passed by the councils of local municipalities:

Restricting use of land

1. For prohibiting the use of land, for or except for such purposes as may be set out in the by-law within the municipality or within any defined area or areas or abutting on any defined highway or part of a highway.

53Darien also addressed the matter of regulating operation of quarries on Crown lands. Specifically submitting that:

2. Darien submits that s. 34(9) of the ARA did not take away the ability of zoning by- laws to regulate aggregate extraction. Zoning by-laws never had this function. It is noteworthy that the zoning by-law amendment under appeal in this matter does not purport to regulate aggregate extraction, only to permit it.

Affidavit of David Sisco, Nov. 22, 2021, Exhibit F

3. On privately owned lands, zoning by-laws determine whether or not aggregate extraction is a permitted or a prohibited use. If permitted, that use is regulated by means of site plans approved under the ARA. The ARA site plan is the instrument which set out the provisions required to prevent or mitigate adverse impacts or extraction, if any.

Aggregate Resources Act, R.S.O. 1990 c. A.8 s. 8, 12.1,36

Planning Act R.S.O. 1990 c. P. 13, s. 34(1)

Chisholm v Southgate (Township), 2020 CanLII 89049 (ON LPAT)

James Dick Construction Limited v Wellington (County), 2020 CanLII 10045 (ON LPAT)

4. The extent to which zoning by-laws can regulate rather than prohibit land uses is limited to the specific matters set out in s. 34(1) 4-6 of the Planning Act, none of which is relevant to the operation of an aggregate pit or quarry.

Planning Act R.S.O. 1990 c. P. 13, s. 34(1)

54The Tribunal has taken note of the cited case law and arguments made by the parties. The Tribunal is convinced by the arguments of NDMNRF, the Township and Darien versus the case made by NSERA. The key points that compel Tribunal’s findings are:

a. ARA s. 34(9) does not require a zoning by-law to “prohibit” for it to be an “in-operative by-law”. The term used is “If a zoning by-law “includes a prohibition ….” [Emphasis added]. b. Whereas NSERA has cited case law which differentiates “regulation” versus “prohibition”; however, Darien’s comments regarding out of context application of referred and cited BC decision by NSERA is also valid as the specific statutory frameworks and operations under ARA are in a differentiated statutory landscape of Ontario versus BC; c. NSERA seeks potential remedy for public participation that they claim is taken away by the legislation is out of Tribunal’s jurisdiction to make right a statute like ARA and additionally as submitted by the Township such opportunities do exist as part of normal application processing as managed by NDMNRF; d. NSERA submission that only real opportunities to address concerns like “the impact and mitigation of haul routes on traffic safety, dust and noise, natural heritage system planning, and species at risk within the Township’s borders are also at question.”; exists through Zoning By-law regulation is misplaced. The Tribunal experience shows that as stated by the Township such aspects are thoroughly addressed through requisite ARA application and processing activities; and e. Notwithstanding that the zoning by-laws are governed as to their ability to only permit or prohibit land uses as per the Act s. 34(1); the fine line between “regulation” versus “a prohibition” that NSERA draws is not sustainable based on the submissions made by NDMNRF. Any land use planning regulation that sets controls by allowing or limits by prohibiting carries out indirectly “a prohibition” as to what is not allowed or directly creates “a prohibition”.

55Having considered all the material before it and all the submissions of the parties and based on the analysis above, the Tribunal finds that ZBA No. 19-22 or any other zoning by-law cannot regulate the operation of a quarry on property of the Crown including Crown Lands.

DISMISSAL OF NSERA APPEAL

56Having determined that NSERA appeal is moot and that no zoning by-law can regulate the operation of a quarry on property of the Crown; the Tribunal determines that any continuation of the NSERA appeal in this matter is not appropriate and an order dismissing the appeal by NSERA is justified.

ORDER

57THE TRIBUNAL ORDERS that the motion by Darien is allowed.

58THE TRIBUNAL ORDERS that the appeal by NSERA against the passing of Zoning By-law No. 19-22 by the Township of North Shores is dismissed.

“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.