Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: March 23, 2022

CASE NO(S).: OLT-21-001313

PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Applicant: King & Benton Redevelopment Corporation

Appellant: Lee Hartwell

Subject: Consent

Property Address/Description: Part of Lot 11, Range 1 West of Plank Road

Municipality: Haldimand County

Municipal File No.: PLB-2021-103

OLT Lead Case No.: OLT-21-001313

OLT Case No.: OLT-21-001313

OLT Case Name: Hartwell v. Haldimand (County)

Heard: February 1 and 25, 2022 by Video Hearing (“VH”)

APPEARANCES:

Parties	Counsel/Representative*
Lee Hartwell (“Appellant”)	Self-represented
King & Benton Redevelopment Corporation (“Applicant”)	David Bronskill*
Haldimand County (“County”)	Sara Premi* and Woodward Mckaig*

Non-party	Counsel/Representative*
Haudenosaunee Development Institute (“HDI”)	Tim Gilbert*, Thomas Dumigan* and Dylan Gibbs*

MEMORANDUM OF ORAL DECISION DELIVERED BY K.R. ANDREWS AND Eric S. CROWE ON FEBRUARY 1 AND 25, 2022 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This case involves a Consent application to sever lands currently owned by the Canadian National Railway Company (“CN Rail”). The purpose of the Consent is to facilitate the sale of surplus CN Rail lands to the Applicant, who has indicated its intention to eventually redevelop the parcel for residential purposes. For the purposes of the present application and appeal hearing, CN Rail has assigned authorization to the Applicant to complete the proposed Consent.

2Following the County’s public consultation process, the Committee of Adjustment approved the Consent application with conditions to be fulfilled on or before July 20, 2022.

The Appellant and nature of the appeal

3The Appellant appealed the decision in the name of “Keep the Peace”, which is an unincorporated community association. At the outset of the February 1, 2022 hearing, the Tribunal advised that the Appellant could not proceed in the name of the unincorporated organization, but he could proceed personally in his own name. The Appellant agreed and, on consent of the Parties, the hearing proceeded with Lee Hartwell named as the Appellant.

4The Appellant outlined his issues of the appeal as follows:

• The proposed development will exacerbate existing land disputes and/or introduce new conflicts involving area Indigenous peoples, negatively impacting the area’s residents’ peaceful enjoyment of their properties; and,
• The proposed development will be harmful to the environment and exacerbate existing drainage issues, negatively impacting area residents.

The February 1, 2022 hearing

5The hearing commenced as scheduled on February 1, 2022, and the Tribunal heard evidence from both parties. Approximately halfway through the evidence portion of the proceedings, the Appellant called Colin Martin. Mr. Martin testified that he acted as a liaison with the police on behalf of the Haudenosaunee Confederacy Chiefs Council (the “HCCC”). Through his testimony, he drew the Tribunal’s attention to three documents (collectively, the “Moratorium Documents”):

• HCCC “Moratorium on Development”
• HCCC “Land Rights Statement” dated November 4, 2006
• HCCC “Moratorium on Development in the Haldimand Tract” dated April 20, 2021.

6While he did not purport to speak on behalf of the HCCC as a formally appointed representative, he did testify that he understands that the HCCC opposes the proposed Consent application and they have only recently learned about the appeal to the Tribunal.

7He further testified that the Haudenosaunee Development Institute (“HDI”) has been sanctioned by the HCCC to act on authority of the HCCC in respect of development issues within the Haldimand Tract, which includes the entire Town of Caledonia (“Caledonia”) and the Subject Lands. He explained that the creation of HDI came about as a result of negotiations between the HCCC and the federal government regarding the Douglas Creek Estate development and associated protests involving the McKenzie Meadows subdivision in Caledonia.

8Mr. Martin further explained that HCCC is not the same entity as the “Six Nations elected Band Council”, which was evidently notified of the present application at the municipal level and subsequently informed of the appeal to the Tribunal. Mr. Martin testified that he had also spoken to a representative of HDI that morning and confirmed that neither HDI nor HCCC had been consulted or formally notified with respect to the present Consent application.

9At this point of the hearing, the Tribunal determined that HCCC/HDI may have an interest in the matter and may have not received sufficient notice of the Tribunal’s proceedings, thus possibly triggering the Tribunal’s (on behalf of the Crown) obligation to consult and engage with Indigenous peoples on matters that may affect their Aboriginal or treaty rights pursuant to s. 35 of the Constitution Act, 1982. The Tribunal then asked for submissions from the Parties on this issue and what should be done to remedy the situation, if anything.

10Counsel for the Applicant submitted that HCCC must have known about the proceedings, given that Mr. Martin participated in the public consultation process at the municipal level, and the aforementioned “Moratorium Documents” formed part of the municipal record at that time. He further submitted that Mr. Martin should have also received notice of the present Tribunal hearing given that he participated in the public consultation process. Additionally, the Applicant submitted that a duty to consult with Indigenous peoples does not automatically create a position of right to participate in proceedings, and Mr. Martin’s awareness of the proceedings was enough to provide sufficient notice to HCCC/HDI to satisfy the Crown’s obligation to consult. As a result, the Applicant submitted, there is no need to adjourn the proceedings to further engage with HCCC/HDI.

11Counsel for the County confirmed that it shared the Applicant’ position, and further confirmed that the County had provided notice to the “Six Nations elected Band Council” and “Mississaugas of the Credit” as part of the “Grand River Notification Agreement”, which is part of the municipal-level application process. However, the County also admitted that HCCC is not a party to that agreement and was not otherwise notified by the County. The County also shared the Applicant’s position that there is no reason to adjourn the proceedings.

12The Tribunal considered the submissions of the Parties, noting that the HCCC/HDI was obviously not present to speak for itself. Nevertheless, the Tribunal found (on a balance of probabilities) that the HCCC/HDI had not received sufficient direct notice of the appeal proceedings and the Tribunal was obliged to provide the HCCC/HDI with adequate direct notice of the hearing. The Tribunal further found that Mr. Martin’s evidence, albeit not formally tendered as a representative of HCCC/HDI (he confirmed that he did not attend in such a formal capacity), provided enough compelling information to trigger a basic inquiry of the Tribunal to determine whether or not HCCC/HDI wished to seek party or participant status in this matter.

13The Tribunal’s decision flows from the province’s duty to consult and engage with Indigenous peoples on land use planning matters. Such a duty is not only a result of the Crown’s general obligation to consult and engage with Indigenous peoples on matters that may affect their Aboriginal or treaty rights pursuant to s. 35 of the Constitution Act, 1982, the Tribunal is also expressly directed to do so pursuant to Part IV and ss. 1.2.2 and 4.3 of the Provincial Policy Statement (“PPS”):

s.1.2.2. Planning authorities shall engage with Indigenous communities and coordinate on land use planning matters.

s.4.3. This Provincial Policy Statement shall be implemented in a manner that is consistent with the recognition and affirmation of existing Aboriginal and treaty rights in section 35 of the Constitution Act, 1982.

and in policies 5.2.3 (4) and (7) of the A Place to Grow: Growth Plan for the Greater Golden Horseshoe (“Growth Plan”):

(4) Municipalities shall engage Indigenous communities in local efforts to implement this Plan, and to provide the necessary information to ensure the informed involvement of these communities.

(7) Planning authorities shall co-ordinate planning matters with Indigenous communities throughout the planning process to ensure that appropriate engagement is undertaken. Municipalities are encouraged to build constructive, cooperative relationships with First Nations and Métis communities and to facilitate knowledge sharing in growth management and land use planning processes.

and, associatively, in accordance with s. 3(5) of the Planning Act.

14The Tribunal finds that such obligations require, at minimum, a positive duty on behalf of the Tribunal to:

1. provide adequate Notice to any reasonably affected Indigenous peoples; and,
2. provide an accessible opportunity to such Indigenous peoples to request party and/or participant status.

15Following this decision, the Tribunal proceeded to obtain contact information from Mr. Martin for the appropriate representative of HDI, and the Tribunal’s Case Coordinator followed by sending an email to HDI together with reference to the Tribunal’s status request forms. HDI was given a deadline of February 9, 2022 to submit a status request form if it chose to do so.

16At this point, the Tribunal was in a position to decide whether to continue with the hearing or adjourn pending confirmation from HDI with regards to its intentions to participate in the matter. The Parties were in agreement that, given the hearing was already well underway and could be completed before the end of the day, it may as well continue and receive the remainder of the Parties’ evidence and submissions, and then the Tribunal could determine how to proceed once HDI’s intentions/involvement (if any) are known.

17The Tribunal therefore, decided to continue due to the fact that HDI had not yet directly or formally communicated its intention to participate in the matter, and if it decided not to participate, the hearing could be deemed complete if the Parties finished their respective cases as scheduled.

18Despite the decision to continue, the Tribunal made it clear to the Parties that the hearing was not formally complete and it may have to be reconvened (and possibly even restarted) if HDI elected to request status. The Tribunal also made it clear that no decision-making, respecting the merits of the Consent application, would be commenced until after the consequences of HDI’s involvement in the proceedings, if any, was determined. Finally, if the hearing was reconvened to deal with a request for status by HDI, and if status was granted, the Tribunal advised the Parties that it would receive submissions at that time regarding how to proceed with the matter. The Parties confirmed their understandings and agreement with respect to the Tribunal’s decision to move forward with the proceedings, and caveats in doing so.

19The hearing continued with the evidence and submissions of the Parties being completed. The hearing was then adjourned.

20On February 8, 2022, the Tribunal did in fact receive a formal Party Status request from HDI, together with extensive submissions in support of their request. As a result, a dedicated VH was scheduled to hear HDI’s request for Party Status on February 25, 2022.

THE FEBRUARY 25, 2022 HEARING

21At the outset of the February 25, 2022 hearing, counsel for the Applicant confirmed that his client, the County and HDI were in agreement that the matter should be further adjourned. The Tribunal was informed that they were actively negotiating settlement of all outstanding issues, including potential party status of HDI and what, if any, role HDI would take in the proceedings. The Tribunal asked the Appellant if he concurred with the proposed adjournment, and he responded that it was acceptable to him given that everyone else was in agreement.

22The Parties agreed that two days should be set aside at the first available opportunity to reconvene the hearing. At that time (or in advance), the Parties and HDI will provide the Tribunal with an update on resolution efforts. If all outstanding issues are not resolved at that time, these hearing dates will be used to determine any remaining issues (including HDI’s request for status) and complete the proceedings on the merits of the matter.

23At the request of Counsel for HDI, the Tribunal set a two-week deadline for the existing Parties to provide HDI with all materials that have already been filed with the Tribunal. This will allow HDI to fully participate at the next hearing date, in the event that it has been granted status to do so.

HEARING

24Upon request of the Parties, the Tribunal set a two-day hearing commencing on Tuesday, May 24, 2022 at 10 a.m. by VH. No further Notice is required for the hearing.

25Parties and participants are asked to log into the VH at least 15 minutes before the start of the event to test their video and audio connections:

https://global.gotomeeting.com/join/656004293

Access Code: 656-004-293

26Parties and participants are asked to access and set up the application well in advance of the event to avoid unnecessary delay. The desktop application can be downloaded at GoToMeeting or a web application is available: https://app.gotomeeting.com/home.html.

27Persons who experience technical difficulties accessing the GoToMeeting application or who only wish to listen to the event can connect to the event by calling into an audio-only telephone line: Toll-Free 1-888-299-1889 or +1 (647) 497-9373. The Access Code is as indicated above.

28Individuals are directed to connect to the event on the assigned date at the correct time. It is the responsibility of the persons participating in the VH to ensure that they are properly connected to the event at the correct time. Questions prior to the hearing event may be directed to the Tribunal’s Case Coordinator having carriage of this case.

ORDER

29The Tribunal Orders that:

1. The appeal shall proceed with Lee Hartwell named as the Appellant;
2. The Parties shall forward all materials that they have filed with the Tribunal to counsel for HDI by no later than March 11, 2022;
3. The date and particulars of the next hearing dates are set out above; and,
4. The Members are seized and may be spoken to through the Case Coordinator if any issues arise.

“K.R. Andrews”

K.R. ANDREWS MEMBER

“Eric S. Crowe”

ERIC S. Crowe 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.