Elvis...um, the MNR, has left the building
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Ontario's Ministry of Natural Resources has left the Nelson Aggregate Hearing. That's big news, and here's why.
Last week, we wrote about the Nelson Aggregate Hearing. This is an important hearing process that will decide whether Nelson can expand its quarry on the Niagara Escarpment. The area surrounding the quarry contains precious wetlands, rock formations, and water flows, all of which are threatened by an expanded quarry.
On the first day of the hearing, the Ministry of Natural Resources announced that it is withdrawing from the hearing. The MNR helped to draft the "issues list" - basically the agenda for the hearing. The MNR would have called witnesses, cross-examined other parties' witnesses, and shared the costs of the hearing. Under most circumstances, the MNR does all this because the law (the Aggregate Resources Act) says they have to. It is the Ministry's job to participate in the hearing and help the board make a recommendation to the Minister of Natural Resources. The Minister then ultimately decides whether or not to approve a quarry.
Because the Nelson Aggregate proposal raises so many different environmental and land-use issues, it needs to be approved by more than just the Minister of Natural Resources. The Niagara Escarpment Commission is involved, as have been local planning authorities. Nelson requested a combined hearing to handle most of these approvals in one process. That is why a "Joint Board" will hear all the evidence and decide the fate of Nelson Aggregate's quarry expansion.
Ironically, the presence of other government departments and the leadership of community volunteers allows the Ministry of Natural Resources to do less than it would otherwise do. When MNR's counsel told the Joint Board it planned to leave the hearing, he credited volunteer-run PERL ("Protecting Escarpment Rural Land") for evaluating the local wetlands and motivating the government to protect Jefferson Salamander habitat and breeding areas.
Nelson, in turn, shrank its quarry proposal to leave more room for the salamanders. Now the Ministry of Natural Resources believes its job is done.
The MNR's withdrawal from the Nelson hearing creates two problems for the parties who are left behind, such as Halton Region, the Conservation Authority, the City of Burlington, and volunteer group PERL. First, it imposes new costs on these parties. The Ministry was supposed to shoulder a fair share of costs for the hearing, for witnesses, for legal work. With the hearing underway, the other parties will have to scramble to fill in the gaps; counsel for Halton Region told the board that the other parties will probably still have to call MNR's witnesses, who have valuable testimony to offer.
If you followed the Lafarge hearing, you know that costs sunk into a hearing are rarely recovered. Even under a best case scenario, the City, the Niagara Escarpment Commission, Halton Region, the Conservation Authority and PERL are spending more of their money to protect the escarpment from aggregate impacts than the provincial department charged with that responsibility: the Ministry of Natural Resources. In the worst case scenario, if there was ever an adverse cost award, the MNR's withdrawal from the hearing could heap more liability on the shoulders of its former allies.
The second problem is the MNR's statement that it is "no longer in opposition" to the quarry proposal. It made the statement to the board, then withdrew from the hearing. The MNR does not offer any evidence to support its claim, does not call witnesses as Nelson must do. It just makes the statement ... and leaves.
Of course it's debatable whether teaming up with Nelson - the proponent - to defend the quarry would be more appropriate than declaring "no opposition" and leaving. But it's a debate worth having.
If Nelson wanted to dig an "ordinary" quarry, one that did not pose such a threat to the escarpment, to rare species, and to unique water flows, thus requiring permission from a Joint Board, then the MNR would not be able to withdraw so easily. But because the Nelson quarry is on precious land and because so many departments, agencies, and individuals are concerned, the MNR is able to quietly step aside. That just doesn't seem right.