December 13, 2002 For Immediate Release

HEARING INTO ESCARPMENT LAND ADDITIONS TO PROCEED
Developers' attempts to derail the public hearings struck down by Court


Through a court decision released this week, approximately 2,200 hectares (5,439 acres) of Escarpment lands in Flamborough, Dundas, Waterdown and Burlington are a step closer to being brought under the protection of the province's Niagara Escarpment Plan (NEP).

The Niagara Escarpment Commission (NEC) initiated a public process in May 2000 to amend the NEP to include these so-called "Escarpment Link" lands.

However, before the NEC's proposal could move to public hearings, several developers who own land in the affected area launched a legal challenge. On October 18, they argued at the Ontario Superior Court of Justice, Divisional Court, that the NEC made legal and procedural errors in processing and initiating the amendment.

On December 11, the three-judge panel issued a decision, dismissing the developers' application.

"The court's decision is an important victory for Escarpment protection. The developers' legal stall tactics have failed," said Jason Thorne, Executive Director of the environmental group the Coalition on the Niagara Escarpment (CONE).

CONE is one of several groups registered as a participant in the hearing in support of the NEC's amendment.

"Anyone who knows this area knows that these lands are an integral part of the Escarpment ecosystem, and that it is about time that they were given the same degree of protection that other Escarpment lands have had for nearly 20 years," said Thorne.

Public hearings into the proposal are scheduled to resume in mid-February 2003.

At stake is the fate of thousands of acres of important natural areas including Sassafras Woods, part of the upper Grindstone Creek Valley and part of the shoreline of Cootes Paradise. The NEP amendment would also bring 20 km of the Bruce Trail under the protection of the NEP.

If the NEC's amendment is successful, the Escarpment Link lands will be placed under the jurisdiction of the province's Niagara Escarpment Plan (NEP). The NEP came into force in 1985 and governs land use for nearly half a million acres of Escarpment lands from Niagara to Tobermory.

Most people living in the Escarpment Link area would not notice any difference in the way they can use their land. This is because the largest concentration of people, in the urban areas of Flamborough, Waterdown and Dundas, would continue to be subject to municipal zoning bylaws just as they are today. Only the most sensitive features and landscapes related to the Escarpment would be given heightened protection by the land use policies and development criteria of the NEP.

For these areas, the NEP provides for a greater degree of protection than most local planning policies against residential subdivisions and commercial development.

According to Thorne, that is why some developers are trying to halt the process.

"Commercial and residential development is growing like a cancer along Highway 5", said Thorne. "Our best chance to save the Escarpment is by placing these lands under the protection of the Niagara Escarpment Plan."

The public will have an opportunity to comment on the proposal at the public hearings set to resume in February.

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For more information contact:
Jason Thorne, Executive Director
Coalition on the Niagara Escarpment (CONE)
Phone: (416) 960-2008
Cell: (416) 892-4861
CONE was founded in 1978. It is a coalition of 30 organizations from all along the Niagara Escarpment, working together to protect the Niagara Escarpment World Biosphere Reserve. A map of the Escarpment Link, a copy of this press release and further details on the issue are available at www.niagaraescarpment.org

This letter serves as the position of the Coalition on the Niagara Escarpment on the above-noted Niagara Escarpment Plan Amendment.


1. INTRODUCTION


The Coalition on the Niagara Escarpment (CONE) was founded in 1978. It is a coalition of 27 environmental and community groups on the Escarpment and across the province. CONE has worked consistently for the protection of the Escarpment and its many values to Ontario society. CONE was involved in the preparation of the Niagara Escarpment Plan in the late 1970s and early 1980s, and in the first five-year review of the Plan in the early 1990s. CONE's activities include monitoring development up and down the Escarpment, educational initiatives to heighten public understanding and appreciation of the Escarpment, participation in government-led studies on Escarpment issues, and regular monitoring of Niagara Escarpment Commission meetings.

Our involvement in matters relating to aggregate extraction on the Niagara Escarpment extends back to our founding 23 years ago. For example, after Cabinet approval of the 1994 Niagara Escarpment Plan, CONE was asked to serve on the aggregate advisory committee that flowed from the 18-month moratorium in the 1994 Plan on processing of new aggregate applications.


2. THE PROPOSED PLAN AMENDMENT


2.1 Background Materials
Earlier this year, Dufferin Aggregates invited CONE to attend a briefing about the proposed expansion of their Milton Quarry. Three CONE representatives accepted Dufferin's offer and we were briefed at an on-site meeting at the Milton Quarry on February 12, 2001. We appreciate the time that Dufferin Aggregates and its consultants provided for that meeting and the briefing materials (Project Summary, January 2001) that the company provided to us. We have also contacted Dufferin Aggregates more recently to clarify some issues related to natural features on the site of the proposed expansion.

In addition, CONE has reviewed the NEC's initial staff report dated February 15, 2001. We wish to correct one inaccuracy in that report. At the top of page 12, it is stated that American ginseng (Panax quinquefolius) is a nationally and provincial threatened species. In fact, American ginseng's status was revised in the year 2000 by the federal government's Committee on the Status of Endangered Wildlife in Canada (COSEWIC). COSEWIC "up-listed" American ginseng from threatened to endangered. The provincial government's Committee on the Status of Species-at-Risk in Ontario (COSSARO) is still reviewing the new COSEWIC status with a view to regulating American ginseng under the provincial Endangered Species Act.

There appears to be a discrepancy between the NEC initial staff report and Dufferin Aggregates Project Summary regarding habitat of species at risk. (1) On pages 11-12 of the NEC staff report, it is noted that the Halton Forest North Area of Natural and Scientific Interest (ANSI) is habitat to a number of species at risk, which are listed in the report (American ginseng, Hart's-tongue fern, green violet, red-headed woodpecker, red-shouldered hawk, hooded warbler). A 0.95-hectare portion of this ANSI is within the boundaries of the proposed expansion (although it is outside the Niagara Escarpment Plan Area). Dufferin Aggregates staff have identified this area as deciduous forest; the habitat of American ginseng, to give one example, is deciduous forest. (2) Dufferin Aggregates' Project Summary states, on page 5, that "none of these features [which includes the ANSI forest] are habitat for vulnerable, threatened or endangered species." Clearly, this matter needs to be resolved with a clarification incorporated into the NEC's summary report on this Plan Amendment.

2.2 CONE's Position on the Plan Amendment
CONE is fully cognizant of the fact that the proposal is for an expansion of an existing operation, that it will use existing haul routes, and that it is located close to proposed markets in the "Golden Horseshoe." These are amongst the arguments advanced by Dufferin Aggregates in support of the amendment. However, CONE has re-confirmed, through discussion about the Dufferin Aggregates proposal at a recent meeting of the CONE Board of Directors, its long-standing position on aggregate extraction within the Niagara Escarpment Plan Area.

CONE's position on the Dufferin Aggregates proposed expansion, and for any other proposed new or expanded aggregate operation on the Niagara Escarpment, is as follows:

The Niagara Escarpment Plan Area must not serve as a long-term source of aggregates. New or expanded aggregate operations should not be permitted within the Plan Area unless there is an indisputably proven need for the aggregate that cannot be met from sources outside the Plan Area.

CONE takes the position that Dufferin Aggregates has not proven indisputably that there is a need for this expansion that cannot be met, either by Dufferin Aggregates or by another aggregate operator, outside the Plan Area. While the Niagara Escarpment Plan allows an application to be made to amend the Escarpment Rural Area designation to Mineral Resource Extraction Area, such an amendment is not granted as of right.

2.3 Provisions to Protect Natural Features if the Amendment is to be Approved
While CONE opposes the amendment, as noted above, we believe it is our duty to make recommendations in the event that Cabinet proposes to approve the amendment. Our recommendations are as follows:

  1. The 0.96-hectare portion of the Halton Forest North ANSI must not be permitted to be destroyed through quarrying or any activities ancillary to quarrying. Not only is this an ANSI, but it is a Provincially Significant ANSI identified and described in detail by the Ministry of Natural Resources (MNR) in its Ecological Survey of the Niagara Escarpment Biosphere Reserve (Riley, Jalava & Varga, 1996, pp. 220-225). It is CONE's position that Dufferin Aggregates is incorrect in stating, on page 9 of its Project Summary, that "the application implements the Provincial Policy Statement." The Natural Heritage Policies in section 2.3 of the PPS state that "development and site alteration may be permitted in ... significant areas of natural and scientific interest if it has been demonstrated that there will be no negative impacts on the natural features or the ecological functions for which the area is identified." CONE is of the view that quarrying this 0.96 hectare portion of the ANSI constitutes a highly negative impact on the features and functions of this portion of the Halton Forest North ANSI.

    Also referring to the PPS, the Natural Heritage Policies call for development and site alteration to be permitted in "adjacent lands" to significant ANSIs only if it has been demonstrated that there will be no negative impacts on the natural features or on the ecological functions for which the areas is identified. MNR's Natural Heritage Reference Manual for Policy 2.3 of the Provincial Policy Statement recommends that for provincially significant ANSIs, the width of "adjacent lands" be 50 metres (page 33). CONE takes the position that not only must the ANSI itself not be quarried, but that at a minimum, this 50-metre buffer area with no aggregate extraction must be built into Dufferin Aggregates' quarrying plans.

  2. Dufferin Aggregates is, in CONE's view, indisputably incorrect in stating that "the application implements the Provincial Policy Statement," inasmuch as the amendment, if approved, would destroy two provincially significant wetlands (PSWs) totalling 1.37 hectares. Section 2.3 of the PPS states that "Development and site alteration will not be permitted [emphasis added] in significant wetlands south and east of the Canadian Shield ..." This is a higher standard than the PPS provides for regarding provincially significant ANSIs above. Furthermore, MNR's Natural Heritage Reference Manual recommends that for PSWs, "adjacent lands" (see provisions noted above) be 120 metres in width (page 10). CONE takes the position that not only must the two wetlands themselves not be quarried, but that at a minimum, this 120-metre buffer area with no aggregate extraction must be built into Dufferin Aggregates' quarrying plans. We are aware of the location of the two PSWs and realize that protecting them and their adjacent lands would significantly reduce the extraction area for the proposed Phase 3 East Extension.

We trust that CONE's position on the proposed amendment is clear. Please contact the undersigned if you have any questions.

Sincerely,

ORIGINAL SIGNED

Jason Thorne
Executive Director

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