Nelson Hearing - November 22, 2010
Hearing Day 2, Nelson Aggregate Burlington Quarry
3:35 pm - Breaking News
The Board has denied Roger Goulet the opportunity to stand for PERL on the grounds that he is also a Participant. PERL's counsel, Mr. David Donnelly, was not able to attend today's hearing. When Mr. Goulet rose to question Mr. Parkin, Mr. Kahn, Nelson's representative, objected on the basis that Mr. Goulet is also a Participant. As a result, PERL was not able to cross-examine Mr. Parkin.
The Board adjourned the hearing until 10:00 am tomorrow morning. LOW is not able to attend tomorrow, so will continue these updates as news comes in from PERL members.
3:30 pm
Robert Ratcliffe, for the Niagara Escarpment Commission, completed his cross-examination of Mr. Parkin.
3:25 pm
Mr. Germain has introduced a map from a report referenced by Mr. Parkin. It shows bands of colour emanating from Vaughn representing the distance from that market.
Mr. Germain notes that there are a number of other aggregate extraction sites in the same band as the Nelson quarry. Mr. Parkin confirms this, saying that the various areas yield different types of rock. Most of the sites yielding high quality aggregate are west of the GTA. The "areas" numbered on the map are confirmed as not rooted in planning law or policy.
3:15 pm
Mr. Northey has concluded his cross-examination. He established that when Mr. Parkin said "constraint", he did not mean that the area could not be developed. He ended by having Mr. Parkin confirm that aggregate from places like Manitoulin Island travels to markets in places like the U.S. due to the presence of nearby ports.
Now, Mr. Germain has begun his cross on behalf of Halton Region. He begins by asking Mr. Parkin to define "close to market".
2:05 pm
Mr. Northey establishes that Mr. Parkin has been speaking to "need" when he discussed supply / demand during direct examination. Mr. Northey notes that s. 2.5.2.1 of the PPS 2005 states that need does not need to be demonstrated:
"Demonstration of need for mineral aggregate resources, including any type of supply/demand analysis, shall not be required, notwithstanding the availability, designation or licensing for extraction of mineral aggregate resources locally or elsewhere."
Similarly, Mr. Northey establishes that the Niagara Escarpment Plan does not require supply-demand analysis when making decisions about aggregate development.
1:55 pm
Mr. Northey questions Nelson's planning witness, Mr.Parkin. Mr. Northey establishes that Mr. Parkin has worked consistently for the aggregate industry. He confirms that the witness has worked on only one contract for a party opposing or expressing concerns about a quarry. The witness confirms that this was an exception or unusual, and early in his career. Otherwise, he has never acted for a party opposed to a quarry in a hearing.
1:40 pm
The hearing has resumed following a lunch break. Cross-examination by Rod Northey, on behalf of the City of Burlington, has begun.
12:33 pm
Nelson's witness uses the map of the Amabel Formation to argue that aggregate resources are scarce. He says if you protect woodlands, wetlands, and agricultural land, you will not have enough aggregate to work with.
The Chair of the Joint Board has noted our live updates from the hearing and has asked LOW to keep our posts to a representation of the testimony. We have removed commentary below to reflect this request, but will continue to update you as testimony continues.
The proceedings have paused for lunch.
12:15 pm
Nelson's witness has produced a map of southern Ontario showing the location of the Amabel Formation - the valuable dolostone rock that Nelson wants to extract. It stretches from Niagara Falls up towards the Bruce Peninsula. The rock is only considered an "aggregate resource" where it is within 8 metres of the surface, accessible by quarrying.
12:07 pm
Nelson's planning witness continued his testimony after the morning break by describing the need for aggregates and the declining sources around Halton Region.
He notes that quarry developments are generally opposed by environmentalists and local people, as the local effects are negative. However, he contends, aggregate resources are generally located in environmentally sensitive areas, like the Escarpment, or on moraines. He portrays the concerns expressed about developing a quarry on Mount Nemo as common to all aggregate applications, such that stopping this quarry would mean an end to aggregate production everywhere. There will be real evidence to come that shows why quarrying in this specific location is inappropriate.
11:30 am
Nelson's witness is relying on something called, "The State of the Aggregate Resource in Ontario Study" or SAROS Report. The Report was prepared for the Ministry of Natural Resources by six consulting companies: AECOM, Altus Group, Golder Associates, LVM-JEGEL, MHBC Planning, and Skelton Brumwell & Associates.
The introduction states that the SAROS Report was prepared in response to concern from "stakeholders". Groups representing the public, rather than the stakeholders, like PERL and Gravel Watch Ontario, have questioned the objectivity of the SAROS Report.
11:05 am
Nelson's planning witness continues to give evidence under direct examination. That means that Nelson's lawyer, Jonathan Kahn, is questioning his own witness. The parties that opposed Nelson's quarry development will have the opportunity to question this witness later, which is called cross-examination (examining the other side's witness).
The techniques for each type of questioning are different, with direct examination involving open questions that encourage the witness to speak broadly and expansively. Cross examination involves drawing shorter, yes or no type answers, with the examiner determining the direction of the testimony more than the witness.
The Office of Consolidated Hearings describes the process and order of witnesses that will be followed in this hearing:
"While the Joint Board can direct the order of the presentation of evidence, the Proponent will usually present his or her case first. At the conclusion of the examination of each of the Proponent’s witnesses, other Parties in turn are given an opportunity to cross-examine the witness. Upon completion of the cross- examination of each witness, the Proponent is entitled to re-examine the witness on any issue that arose for the first time during the cross-examination of the witness.
When all the Proponent’s evidence has been presented, other Parties, Participants and Presenters in support of the Proponent will be given an opportunity to present their case following the same procedures.
After the Proponent’s and any supporting evidence has been presented, any Parties opposing the appeal or application can call their witnesses. Cross-examination and reexamination will be allowed regarding any evidence presented.
Finally, the Proponent will be given an opportunity to present any additional evidence that arises out of the evidence of the other Parties. This reply will be limited to evidence that he or she could not reasonably have been expected to anticipate during his or her initial presentation of evidence."
10:55 am
Nelson's witness is now describing the history of aggregate-related legislation in Ontario. Currently, the main policy on aggregates is the Provincial Policy Statement, 2005, which addresses, "Mineral Aggregate Resources" in section 2.5. The PPS also speaks to water, natural heritage, cultural heritage, agriculture, and the wise use of resources.
10:36 am
Nelson's expert continues to testify, explaining that half of the cost of every bag of aggregate goes to transporting the material from the quarry or pit to the market.
He describes the various types of aggregate on the Nelson property, explaining that dolostone is one of the higher quality types of stone on the Nelson property. He calls dolostone a "provincially significant resource", a term that borrows the language used in Ontario law to describe wetlands, woodlands, and other significant natural features.
10:21 am
The second day of the hearing started this morning with Nelson's first witness, Mr. Parkin, a planner who has experience working on aggregate development. He began by describing and defining "aggregate", which includes stone, gravel, clay, etc. He asserted that it is a basic raw material used in all types of construction, and that demand is growing as population increases. He gives an estimate of the need for aggregate as 14 tonnes per person.
This evidence goes to Nelson's argument that aggregate is an essential commodity. Later, Nelson will argue that this commodity should be located as close to where it is used as possible.
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Protecting Escarpment Rural Land (PERL)