Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: March 11, 2024

CASE NO(S).: OLT-23-000457

PROCEEDING COMMENCED UNDER subsection 11(5) of the Aggregate Resources Act, R.S.O. 1990, c. A.10.

Applicant: J.G. Stewart Construction Ltd.

Objector: Betty Smith and Ken O’Reilly

Objector: Russell Booker

Subject: Application for aggregate extraction Class A License for existing quarry

Description: To permit a Category 2 – Class A Quarry Below Water, Licence to excavate aggregate from a Quarry of 65.5 hectares

Reference Number: 626491

Property Address: Pt Lot 23 & 24, Con 4

Municipality/UT: Dysart et al/Haliburton

OLT Case No: OLT-23-000457

OLT Lead Case No: OLT-23-000457

OLT Case Name: J.G. Stewart Construction Ltd. v. MNRF (Approval Authority)

Heard: February 14, 2024, by video hearing

APPEARANCES:

Parties	Counsel/Representative*
J.G. Stewart Construction Ltd.	David Germain and Katyrina Zielinski
Betty Smith and Ken O’Reilly	Self-represented*
Russell Booker	Self-represented*

DECISION DELIVERED BY HUGH S. WILKINS AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This decision arises from a hearing referred by the Minister of Natural Resources and Forestry (“Minister”) to the Tribunal under s. 11(5) of the Aggregate Resources Act regarding an application for a Class A licence (Category 2- Quarry Below Water) made by J.G. Stewart Construction Ltd. (“Applicant”). The proposed quarry licence relates to lands located at Part Lot 23 and 24, Concession 4 (“subject lands”) in the Municipality of Dysart et al (“Municipality”), County of Haliburton (“County”). It would change the licencing for much of the subject lands from their existing licenced use as a gravel pit to use as a quarry.

2The Applicant presently operates a 79 hectare (“ha”) gravel pit on the subject lands. It proposes that licencing for roughly 65 ha of the subject lands would be changed to quarry uses. The remaining lands, located at the southern end of the subject lands, would continue to operate using the existing license approvals as a Class "A" pit below the water table under the Aggregate Resources Act.

3The proposed quarry licence would permit drilling, blasting, and the extraction of consolidated bedrock materials from below the water table. It would permit an unlimited maximum annual tonnage of materials to be extracted. Depending on local and regional demand, the expected annual tonnage to be extracted would be roughly 500,000 tonnes.

4The subject lands are largely surrounded by forests and wetlands. To the east, there are adjacent residential uses with frontage on County Road No. 3. The community of Haliburton is located roughly 4 kilometres away to the northwest.

5Russell Booker, Betty Smith and Ken O’Reilly (together, “Objectors”) own properties adjacent to the subject lands. They filed objections to the issuance of the proposed quarry licence. Pursuant to s. 11(5) of the Aggregate Resources Act, the Minister referred the matter to the Tribunal for a hearing.

6The Ministry of Natural Resources and Forestry (“MNRF”), the Municipality, and County did not seek status in this proceeding and did not attend the hearing.

ISSUES

7Section 12(1) of the Aggregate Resources Act sets out criteria to which the Tribunal must have regard when conducting a hearing under s. 11(5) of the Act. Section 12(1) states:

12(1) In considering whether a licence should be issued or refused, the Minister or the Tribunal, as the case may be, shall have regard to,

(a) the effect of the operation of the pit or quarry on the environment;

(b) the effect of the operation of the pit or quarry on nearby communities;

(c) any comments provided by a municipality in which the site is located;

(d) the suitability of the progressive rehabilitation and final rehabilitation plans for the site;

(e) any possible effects on ground and surface water resources including on drinking water sources;

(f) any possible effects of the operation of the pit or quarry on agricultural resources;

(g) any planning and land use considerations;

(h) the main haulage routes and proposed truck traffic to and from the site;

(i) the quality and quantity of the aggregate on the site;

(j) the applicant’s history of compliance with this Act and the regulations, if a licence or permit has previously been issued to the applicant under this Act or a predecessor of this Act; and,

(k) such other matters as are considered appropriate.

8In the present case, the core issues identified by the Parties to be adjudicated focus on the application of the above-noted statutory requirements in relation to:

1. the predicted impacts on the natural environment;

2. the predicted impacts of water resources; and

3. the predicted impacts of blasting.

Each of these criteria (and the core issues) is addressed in turn below.

EVIDENCE AND SUBMISSIONS

9The Applicant produced the following witnesses:

• Caitlin Port - the Tribunal qualified her to provide opinion evidence in the area of land use planning and aggregate resource planning;

• Robin LeCraw - the Tribunal qualified her to provide opinion evidence in the area of ecology;

• Kevin Fitzpatrick - the Tribunal qualified him to provide opinion evidence in the area of water resources engineering; and,

• Robert Cyr - the Tribunal qualified him to provide opinion evidence in the area of blasting engineering.

10The Objectors cross-examined the Applicant’s witnesses and provided submissions. None of the Objectors produced witnesses or evidence themselves.

Applicant’s Evidence and Submissions

(a) Effect of the operation of the quarry on the Environment

11Ms. Port stated that the proposed licence would reduce the area currently permitted for extraction on the subject lands and would require stricter mitigation measures to protect the environment than are currently required under the existing pit licence. She stated that the proposed site plans under the licence would require: setbacks and buffers around environmental features; limits to the amount of disturbed area permitted at any one time; the prohibition of tree and vegetation clearing during sensitive bat and breeding bird periods; reptile exclusion fencing; and the education of quarry staff on the protection of species at risk on the subject lands. She said the subject lands would be rehabilitated with native vegetation, trees, and shrubs to facilitate integration with the surrounding natural environment.

12Ms. Port stated that the proposed quarry would be operated in phases to minimize the area to be disturbed to 20 ha at any one time. She said a natural environment report was prepared, that assessed impacts to significant natural heritage features and functions. Based on the size and context of the proposed quarry, she said the report found that the predicted loss of forest and vegetation would not have a significant negative impact on the overall form and function of the surrounding forests. She said other environmental aspects, including water resources and species at risk, were also assessed. She also stated that there would be no permanent fuel storage permitted on the subject lands and there would be no use of chemicals on the site.

13Based on comments received from MNRF, the Ministry of the Environment, Conservation, and Parks (“MECP”), the federal Department of Fisheries and Oceans (“DFO”), and other agencies during consultations regarding the proposed licence, Ms. Port said changes were made to improve the proposed site plans for the quarry. She said these revisions include: Blanding's Turtle mitigation and monitoring requirements; strengthened requirements on fencing; requirements for the transportation of only clean material for the construction of berms and for rehabilitation; and improvements in wetland mapping and planting requirements. She said the site plan requirements are mandatory and will be enforced by MNRF.

14In response to questions during cross-examination, Ms. Port stated that there would be crushing, but no washing of aggregate on the subject lands. She said dust suppression requirements are included in the proposed site plan and confirmed that water would be applied for controlling dust. In regard to forest rehabilitation, she said it would include the use of nodal plantings with a variety of tree and shrub heights to kickstart natural reforestation.

15Dr. LeCraw stated that there are several natural heritage features on and adjacent to the subject lands, including fish habitat, species at risk habitat, and wetlands. She said that fish, amphibian, bird, and species at risk assessments were completed on the subject lands. She said proposed mitigation measures under the proposed quarry licence include 30 meter (“m”) vegetated buffers around adjacent wetlands, 30 m setbacks from all fish habitat and permanent wildlife exclusion fencing for turtles and amphibians between the extraction area and wetlands to the south and east. Like Ms. Port, she stated that there would be the prohibition of vegetation removal during bird and bat breeding seasons, and extraction would be phased to limit the amount of disturbed area to 20 ha at a time accompanied with progressive habitat rehabilitation. She said that extraction surfaces would be contoured to maintain the existing water balance for receiving waterbodies and that runoff would be managed to avoid scour, sedimentation, and the introduction of deleterious substances to receiving waterbodies and wetlands.

16Dr. LeCraw said progressive rehabilitation would include active seeding, planting of shrubs and trees, and inclusion of diverse habitats to restore habitats to their original functions. She said this would ensure that operations on the subject lands would not impact the overall long-term function of the surrounding forests. She said that, given the proposed mitigation measures and the abundance of habitat in the area, the habitat conditions and the life cycles of wildlife on adjacent lands would not be negatively impacted. She opined that, based on the proposed operational designs, mitigation measures, and rehabilitation, the proposed quarry would not have long-term significant negative environmental impacts.

17Dr. LeCraw stated that there are two small, isolated wetlands located on the subject lands. She said they are both mineral mix swamps without standing water and both are located atop steep slopes. Although these wetlands are located in Category 2 Blanding’s Turtle habitat, she opined that they are not favourable habitat given their isolated and inaccessible locations. She opined that no species at risk rely on those wetlands. She said the subject lands are not in the protected area for Black Ash and that she opined that, given abundant surrounding habitat and the proposed phased approach to quarry operations, the proposed quarry would not negatively impact species at risk birds or bats. She reiterated that habitat removal would only be undertaken outside of seasons when species at risk bird and bat species are active. She said MNRF, MECP and DFO have each signed off on the proposed quarry licence.

18In response to questions under cross-examination, Dr. LeCraw stated that there will be forest edge impacts from the proposed development, which could result in increased invasive species and biodiversity impacts, but she said the natural functions of the area would be maintained.

19Mr. Cyr stated that he addressed vibration impacts in his Blast Impact Analysis, dated February 3, 2020, including impacts on watercourses and fish habitat. He concluded that the proposed blasting would comply with MECP requirements and would not impact local watercourses or fish habitat.

(b) Effect of the operation of the quarry on nearby Communities

20Ms. Port stated that the proposed quarry is located 4 kilometres from the community of Haliburton in a remote area surrounded by forests, wetlands, existing aggregate operations, and limited rural residential uses. She stated that the proposed quarry licence would ensure that any impacts on the local community would be mitigated and minimized. In response to MNRF and public comments, she stated that noise mitigation measures, including berms at the northeast and southwest ends of the subject lands, were included in the proposed site plans so that potential impacts, including those on existing and future local sensitive noise receptors, including residential dwellings, are mitigated and minimized. She said the Applicant retained a noise consultant who assessed noise impacts and found that through the proposed noise mitigation measures, the proposed quarry would comply with MECP noise guideline limits for existing and future receptors on adjacent properties.

21Regarding the impacts of blasting on the community, Mr. Cyr stated that his Blast Impact Analysis was completed to the satisfaction of the applicable review agencies. He said the Analysis concluded that blasting at the proposed quarry could be carried out safely and in compliance with the MECP’s noise and blasting guidelines and in a manner that manages and mitigates any potential impacts on surrounding land use. He said blasting would meet the applicable standards at all receptors and blast size would not be excessive. He said there would be roughly four blasts annually. He addressed vibration impacts, including impacts on local drinking water wells, and fly-rock potential and he concluded that the proposed blasting would comply with MECP requirements in these regards. He said his Analysis included recommendations on other matters, including monitoring ground and air vibrations, blasting design, and record keeping.

22In response to questions during cross-examination, Mr. Cyr stated that, depending on the location of the blasts, blast exclusion zones may be required which could affect adjacent lands. He said neighbouring landowners would be informed of these exclusion zones and would have an opportunity to object and have the zones moved.

(c) Comments provided by the Municipality

23Ms. Port stated that the Municipality did not provide any comments regarding the proposed quarry application. She said the County commented on the entrance to the subject lands and truck traffic on County Road No. 3. To address these comments, she said a requirement was added to the proposed site plans requiring that the Applicant enter into an agreement with the County regarding road upgrades.

(d) Suitability of the Progressive Rehabilitation and Final Rehabilitation Plans for the subject lands

24Ms. Port reiterated that the proposed site plans require that the subject lands be progressively rehabilitated to a naturalized and forested condition with native species to ensure compatibility with surrounding land uses. She opined that the proposed rehabilitation plans are suitable for the subject lands and said MNRF did not express any concerns with them.

(e) Possible effects on Ground and Surface Water Resources, including on Drinking Water Sources

25Ms. Port stated that the impacts of the proposed quarry on groundwater and surface water resources were assessed to the satisfaction of the MECP. She said there would be no adverse impacts on these resources. She said that, based on the proposed quarry design, phasing of extraction, and mitigation measures, the existing quality and quantity of ground and surface waters in the area would be maintained. She said an Environmental Compliance Approval may be required from the MECP for offsite drainage and discharges, but that existing drainage patterns to off-site surface water features would be maintained and impacts to nearby receptors would be limited. She reiterated that the floor elevation of the proposed quarry would be designed to ensure that seepage and precipitation free flow to the southeast. She said no dewatering of the quarry would be required and the proposed quarry would not result in flooding on adjacent lands or roads. She said the subject lands are not located within a Wellhead Protection Area and the proposed quarry would not impact access to drinking water by local residents. In response to whether she could guarantee no water impacts from the proposed quarry, she stated that based on the studies that were undertaken, there would be no hydrogeologic impacts on adjacent properties.

26Mr. Fitzpatrick stated that he prepared a Level 1 and 2 Hydrogeological Study, dated June 29, 2020, to the satisfaction of the MECP and the other applicable review agencies. He opined that the risks to water resources posed by the proposed quarrying activities are low. He said the proposed design of the quarry and manner of aggregate extraction are designed to maintain the existing off-site drainage and catchment areas. He said the proposed site plans have provisions to minimize impacts to surface and groundwater resources through setbacks; groundwater monitoring and groundwater-related complaint programmes; maintenance of the water balance; the use of check damns and erosion protection measures to address off-site drainage of sediment and deleterious substances; off-site drainage monitoring; and the development of spills prevention strategies and a spills action plan.

27Mr. Fitzpatrick stated that he reviewed existing hydrogeological studies, geological mapping, and other materials relating to the local area and installed three drivepoints, two monitoring wells, and borehole loggers at locations on the subject lands for monitoring ground and surface waters. He said he also undertook a water balance assessment and well survey of properties within 500 m of the subject lands. He said local water quality would be appropriately monitored and he opined that there would be no negative impacts to local groundwater or surface water resources caused by the proposed quarry. He also said the proposed new access road would have adequate culverts to maintain water flows and prevent washouts and flooding.

28In response to questions under cross-examination, Mr. Fitzpatrick stated that surface water would be monitored using data-loggers and reviewed by a qualified expert. He said changes in water flows caused by the proposed quarry to the nearby Haas Creek would be minimal and runoff would be virtually unchanged from current conditions.

29Regarding the impacts of blasting on local nearby waterbodies, Mr. Cyr stated that vibration impacts on local drinking water wells were assessed. He opined that the blasting at the proposed quarry would not impact local drinking water wells and would comply with MECP guidelines.

(f) Possible effects of the operation of the quarry on Agricultural Resources

30Ms. Port stated that the subject lands are densely forested with rock outcrops and sparse topsoil. She said they are unsuitable for agricultural uses. She said there have never been agricultural land uses on the subject lands or in the surrounding area. She opined that there would be no impacts to agricultural resources caused by the operation of the proposed quarry.

(g) Planning and Land Use Considerations

31Ms. Port stated that the subject lands are designated as “Rural Land” and identified as “Active Licenced Pits and Quarries” under the County’s Official Plan. She said they are designated as "Mineral Aggregate Resources Overlay" and "Environmental Protection Areas'' and identified as "Licensed Pit" under the Municipality’s Official Plan. She said the subject lands are zoned as “Extractive Industrial (MX)” and “Environmental Protection (EP)”, which permits pits and quarries. As the proposed use of the subject lands as a quarry is permitted by the existing Mineral Aggregate Resources Overlay designation, she said no approvals are required under the Planning Act for the Applicant’s proposed uses. In consideration of the requirements in the Provincial Policy Statement, 2020 (“PPS”), she opined that the proposed quarry uses would be consistent with the PPS. She stated that natural heritage, species at risk, water resource, and aggregate resource considerations under the PPS have been properly addressed. She said that the proposed quarry would be located in a remote area with limited nearby sensitive land uses. She opined that impacts on surrounding land uses would be minimized.

(h) Main Haulage Routes and proposed Truck Traffic to and from the Site

32Ms. Port stated that the proposed quarry would be accessed from County Road No. 3 by a proposed unassumed public road using an unopened road allowance. She said part of the road allowance is currently used for access to the existing pit at the southeast corner of the subject lands. She said the Applicant has concluded an agreement with the Municipality for use of the unopened municipal road allowance to access the proposed quarry and to construct the new unassumed gravel access road. She stated that the public, including Mr. Booker, would be able to use the proposed unassumed access road. She said that all comments and concerns received from the County regarding the proposed road entrance have been addressed. She said the Applicant has agreed with the County to pay for upgrades to County Road No. 3, including the construction of a possible turn lane. She said entrance upgrades to County Road No. 3 are included in the proposed quarry’s site plans and the Applicant is required to enter into an agreement with the County regarding the upgrades.

(i) Quality and Quantity of the Aggregate on the Site

33Ms. Port stated that the Applicant has undertaken studies demonstrating that the granite resources on the subject lands are of a quality and quantity that are economically viable for extraction. She said the proposed quarry would contain roughly 20 million tonnes of granite bedrock resources that would be suitable for use in a variety of aggregate-related and construction projects.

(j) Applicant's History of Compliance with the Act and Regulations

34Ms. Port stated that the Applicant is an experienced operator and that the existing pit licence for the subject lands is in good standing with no outstanding compliance issues under the Aggregate Resources Act or its regulations. She stated that she is unaware of any previous non-compliance issues with the Applicant.

(k) Other matters as are considered appropriate

35Ms. Port stated that the Applicant’s application for the proposed quarry licence was subject to comprehensive public, agency, and First Nations consultations resulting in detailed technical assessments and revisions to the application. She said that the recommended mitigation measures from the technical reports have been included in the site plans for the proposed quarry to minimize adverse impacts on the natural environment, water resources, and the local community.

Objectors’ Submissions

36Ms. Smith and Mr. O’Reilly submitted that the impacts of a quarry are distinct from those of a gravel pit as a quarry involves blasting, while a pit does not. They submitted that the proposed quarry would cause distinct impacts to local ground and surface water resources. They submitted that exclusion fencing for turtles is not a sufficiently comprehensive means for addressing impacts to species. They also argued that impacts to future adjacent land uses must be considered. They submitted that there should be better controls and supervision of monitoring, they argued that silica dust emissions have not been properly addressed, and they submitted that the Applicant may have a history of non-compliance. They warned of challenges in the enforcement of the proposed site plan requirements.

37Mr. Booker submitted that the change of use from a pit to a quarry would result in negative impacts to his property along with health and safety issues arising from blasting. He expressed concerns that the use of the road allowance to access the proposed quarry would negatively impact the access to his property. He raised concerns regarding whether the culverts for the proposed access road would be adequate and questioned whether he would have access to his property while the road is being constructed. He submitted that more studies are needed.

ANALYSIS AND FINDINGS

38In considering whether an aggregate licence should be issued or refused, the Tribunal must have regard to the criteria set out in s. 12(1) of the Aggregate Resources Act. These criteria are: the effect of the operation of the quarry on the environment; its effects on nearby communities; County and Municipality comments; the suitability of rehabilitation plans; effects on ground and surface water resources, including drinking water sources; effects on agricultural resources; planning and land use considerations; haulage routes and truck traffic; the quality and quantity of the aggregate on the site; the Applicant’s history of compliance; and such other matters as are considered appropriate.

39In the present case, the Applicant has provided comprehensive opinion evidence relating to each of these criteria. Ms. Port and Dr. LeCraw provided detailed evidence on the environmental effects of the proposed quarry on the environment. They addressed the effects on natural heritage features including wetlands, species at risk, fish habitat, woodlands, and water resources and opined that the proposed quarry licence would not result in long-term negative impacts.

40Ms. Port and Mr. Cyr provided evidence on the effect of the operation of the quarry on nearby communities and found that the proposed quarry licence would not result in noise, health, safety, or other impacts.

41Ms. Port testified that no comments were provided by the Municipality and that the comments received from the County addressed issues associated with County Road No. 3, which have been addressed through revisions to the proposed site plan.

42Ms. Port discussed the Applicant’s plans for progressive rehabilitation and final rehabilitation of the subject lands and opined that they are suitable.

43Ms. Port, Mr. Fitzpatrick, and Mr. Cyr addressed the possible effects of the proposed quarry licence on ground and surface water resources including drinking water sources. They addressed drainage, water balance, flooding, and water quality concerns and opined that there would be no adverse impacts.

44Ms. Port testified that there have never been agricultural uses on the subject or nearby lands and that they are unsuitable for such purposes. She said there would be no effects from the proposed quarry on agricultural resources.

45Ms. Port also stated that planning and land use considerations have been addressed. She said that the subject lands are designated and zoned for quarry operations and the proposed licence would be consistent with the PPS.

46Ms. Port addressed the haulage routes and proposed truck traffic to and from the subject lands and addressed the County’s comments regarding road improvements and access to the proposed quarry. She stated that the County has no concerns with the proposed plans in these regards. She also stated that the Applicant has entered into an agreement with the Municipality regarding use of the road allowance to access the proposed quarry.

47Ms. Port also stated that the quality and quantity of the aggregate on the site is appropriate, the Applicant has no known history of non-compliance with the Aggregate Resources Act or its regulations, and that all other applicable matters, including proper consultations with, agencies, the public, and nearby First Nations, have been addressed.

48The Tribunal recognises the environmental, water resource, and blasting concerns raised by the Objectors, but finds that each of these has been comprehensively addressed by the Applicant.

49Based on the evidence before the Tribunal and having regard to the criteria set out in s. 12(1) of the Aggregate Resources Act, the Tribunal finds that the proposed quarry licence should be issued.

ORDER

50THE TRIBUNAL DIRECTS the Minister of Natural Resources and Forestry to issue the licence to J.G. Stewart Construction Ltd. subject to the prescribed conditions.

“Hugh S. Wilkins”

HUGH S. WILKINS

VICE-CHAIR

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.