Posted by Richard Lindgren, Counsel
When you find yourself in a deep hole, the first step is to stop digging.
This folksy self-help advice is usually directed to people whose own missteps have resulted in unfortunate predicaments or preventable problems. However, this advice should also be considered by elected officials whose short-term decisions may cause unintended – and often undesirable – consequences in the long-term.
This is particularly true in relation to Ontario laws, regulations and policies that govern the production of aggregate materials (e.g. sand, gravel, stone, etc.) from over 6,000 pits and quarries that exist across the province.
For almost 50 years, CELA lawyers have represented low-income individuals and vulnerable communities involved in public hearings under the Aggregate Resources Act (ARA), Planning Act and other applicable statutes. In these aggregate matters, the objectives of CELA’s clients typically include: protecting sources of drinking water; safeguarding public health and safety; and ensuring meaningful public participation in environmental decision-making under these laws.
However, the Ontario government has recently proposed a series of sweeping changes to the province’s framework for regulating the siting, depth and operation of pits and quarries. These changes have been put forward on the basis that the regulatory “burden” on aggregate producers is onerous, costly and time-consuming.
Moreover, the Ontario government contends that its proposals will remove this so-called “red tape,” but will still maintain “strong” protection against the adverse environmental and nuisance impacts arising from the extraction, processing and transportation of aggregate. Based on our experience, CELA disagrees with this rosy assessment for several reasons.
First, the changes do not improve or strengthen current ARA safeguards to make them more stringent or enforceable. To the contrary, the changes are aimed at diluting or removing key ARA provisions in order to facilitate the approval and establishment of even more new or expanded aggregate operations across the Ontario landscape.
Second, the governmental proposals will continue – if not compound – long-standing public concerns about the impacts of aggregate extraction on farmland, air quality, water resources, and ecological features and functions.
Third, the current proposals will neither secure the long-overdue rehabilitation of thousands of abandoned pits and quarries in Ontario, nor result in the timely and proper rehabilitation of existing sites, particularly those that have been in operation for decades.
In short, the provincial proposals appear to provide a classic demonstration of continuing to dig an increasingly deeper hole.
For example, the Ontario government has proposed to amend the Provincial Policy Statement (PPS) under the Planning Act in order to permit aggregate operations in significant wetlands, valley lands, woodlands, and habitat for fish, wildlife and species at risk.
In reply, CELA and other groups filed submissions that outline why this proposal is not good land use planning, and that object to the preferential treatment that aggregate production already enjoys under the PPS.
In addition, the province has proposed to amend the ARA in various ways, including:
- declaring that municipal zoning by-laws relating to the depth of aggregate extraction in pits and quarries are “inoperative”;
- stipulating that the application of municipal zoning by-laws on Crown land does not apply to aggregate extraction; and
- prohibiting the Local Planning Appeal Tribunal and the Minister of Natural Resources and Forestry from imposing licence conditions requiring agreements between municipalities and aggregate producers regarding aggregate haulage.
Aside from these statutory amendments, the Ontario government is also “considering” certain changes to the general regulation under the ARA, including:
- allowing operators to “self-file” changes to existing site plans for unspecified “routine activities”;
- allowing unspecified “low-risk activities” to occur without an ARA licence under certain conditions; and
- “streamlining” requirements for compliance reporting by aggregate operators.
In reply to these and other ARA changes, CELA recently filed a brief that requests of the Ontario government to withdraw its proposals on the grounds that they lack evidence-based justification, fail to provide sufficient implementation details, and are otherwise unsatisfactory from the public interest perspective of our client communities.
CELA’s brief also calls upon the province to develop and consult on appropriate ARA changes that decrease aggregate demand, strengthen the province’s powers to protect the environment, and improve rehabilitation rates through better enforcement, as recommended in a 2017 report from the former Environmental Commissioner of Ontario.
In conclusion, rather than digging ever-deepening holes in Ontario, CELA agrees with the Environmental Commissioner that it is time to take proactive steps to “lighten the environmental footprint” of aggregate production.