February 14, 2001 Registrar Dear Registrar:
RE: Niagara Escarpment Plan Review: Draft Rules of Procedure and Procedural Order Number 1 The Coalition on the Niagara Escarpment (CONE) is writing to offer our opinions on the two above-noted documents, on which comments are being requested before February 15, 2001. Introduction Together, the two documents make a mockery of what a public hearing is intended to be. It would seem that everything possible is being done to limit the role of participants. As an organization that was a party to the original Niagara Escarpment Plan hearings and the first Five Year Review hearings, CONE finds that the draft Rules and the Procedural Order deeply offend the public's interest in having a fair and open review of the Niagara Escarpment Plan. If the proposed Rules of Procedure do not violate section 10(6) of the Niagara Escarpment Planning and Development Act (NEPDA) -- which we would argue they may, indeed, do -- then they certainly run directly counter to the spirit of the legislation and to any concept of the rules of natural justice. The draft Rules of Procedure represent an astounding and unjustifiable departure from past and current practice for Niagara Escarpment Plan amendment hearings. Below we outline the problems with the two documents in more detail, and then offer a very simple solution to these problems. The Problems (1) A "hearing" that has no expert witnesses, no cross-examination of witnesses and no final argument is not a hearing at all. Written questions posed by one participant on the Internet, which other participants are not obligated to answer, are a very poor substitute. What this amounts to is an Internet "chat room." We understand that the Internet phase is to be considered part of the hearing under section 10(6) of the NEPDA. We have no assurance that questions that go unanswered during the written portion of the "hearing" will necessarily be asked by the Hearing Officers during the oral part of the hearing. Not only will this process limit the quality of the evidence before the Hearing Officers, it will also seriously hinder their ability to critically review that evidence. They will not have the benefit of an open discussion of the issues. Rather, they will need to rely on stand-alone, unsubstantiated and in some cases contradictory statements. (2) If a participant brings to his/her/their 10 or 30 minutes at the oral hearing matters not raised in his/her/their written submission, there is no opportunity for other participants to address these new issues, either in final argument or in their own 10 or 30 minutes if they have already made their presentation. The public cannot expect that a Hearing Officer will necessarily ask all the relevant questions at an oral hearing. The onus will thus be solely on the Hearing Officers to weigh and evaluate volumes of technical evidence which could very well be contradictory. (3) A participant cannot file a motion if the Hearing Officers depart unacceptably from the Rules of Procedure. This rule is unfair. (4) The time at the oral hearing allotted to each participant -- 10 minutes for those who have not filed a written submission, 30 minutes for those who have done so -- is an insult to the concept of public participation. Under the NEPDA as amended in 2000, Plan Reviews may take place as infrequently as every 10 years. It is patently ridiculous to offer citizens 10 minutes every 10 years to express their views on the future of a UNESCO World Biosphere Reserve. The Hearing Officers can suspend the rules to allow longer presentations, but for whom would this be done, and how would participants know in advance how long to make their presentations? (5) It has been suggested that the proposed Rules of Procedure will make for a timely hearing that will proceed efficiently, unlike the 1991-92 Five Year Review hearing which some have argued was "taken over" by lawyers who prolonged the process. This is not only an insult to all Hearing Officers and their powers to control a hearing, but also is akin to comparing apples and oranges. The first Five Year Review was a wide-ranging examination of the entire Niagara Escarpment Plan, whereas the current review is very narrowly scoped to five well-contained issues as per the Minister's Terms of Reference. (6) Public participation will be severely stifled by a process that requires all written submissions to be made electronically using a specified format. A citizen without a computer, or without the appropriate software, will be left out of the written portion of the process, and will be allowed only a limited (10-minute) role in the oral part of the hearing. A significant percentage of citizens will be disenfranchised by this proposal. The only fair process is to allow a written submission to be made in any form that a citizen has available. (7) CONE questions how all the time allotted to the oral hearing in July and August 2001 will actually be taken up, given the limitations of 30 minutes on each participant and the possibility, under section 10.5.2 of the draft Rules of Procedure, that the Hearing Officers "may direct persons who have similar interests to designate one person to act as their representative or to coordinate their participation at the hearing." When a Plan Review may not take place again until 2011, surely each participant should be permitted to make his/her/their own presentation. It might be acceptable for participants to coordinate their presentations only if each were to be given a reasonable period of time in which to make a presentation. For example, at "best," each of CONE's 26 member organizations would be permitted 30 minutes each to make an oral presentation. At worst, the Hearing Officers could require that all environmental and conservation organizations come in under the umbrella of CONE in its own, 30-minute presentation. Also, it is not clear whether the 30 minutes includes the time for questions from the Hearing Officers. If this is the case, then the actual time for presentations would be even shorter, or the Hearing Officers would be limited in the questions they could ask. In addition, all of the oral hearing is to take place at a time of year -- summer -- that is guaranteed to limit public involvement. If the oral hearing is to proceed as planned, its timing and Rules of Procedure should at least be seriously reviewed and then amended once it is determined how many participants have registered to be heard. (8) CONE understands that stakeholder organizations are expected to focus most of their time and energy on the written, Internet portion of the "hearing" prior to the oral portion. Procedural Order Number 1 makes that virtually impossible to do. The period for participants to read all the written submissions and pose questions about them on the Internet lasts only 11 days -- June 18 to June 29, 2001. This is patently unfair to all participants. If this form of "hearing" is to proceed, the period for reading written submissions and posing questions must be at least 30 days. Also, if the focus is to be on the written submissions rather than the oral hearing, then it is completely illogical to allocate only 11 days to the critical written question period, while six weeks has been set aside for the oral hearing. (9) CONE understands that the role of the Niagara Escarpment Commission (NEC) will be limited to that of just another participant in the hearing. It is totally unacceptable that other participants will not be able to question the architects of the Plan Review Document during the hearing, except during the written question period when responses are optional and the NEC is likely to be overwhelmed with questions. Once again, the Hearing Officers will not have the benefit of a full and open discussion, and it will be impossible to bring to light the full range of options that the NEC considered and the rationale for their position in each of the issue areas of the Minister's Terms of Reference. This information is crucial, and it will not be available to the Hearing Officers if the current proposal to eliminate cross-examination and closing argument stands. (10) Prohibiting communication amongst participants in the oral hearing phase will foster a confrontational environment. Situations may arise in which positions seem far apart on the surface but which in reality, and after discussion, could be shown to be complimentary. Also, the absence of opportunity for participants to challenge the positions of others within the oral hearing will force participants to voice their questions and concerns outside of the hearing process. This situation could quickly undermine the integrity of the hearing process. The Solution The solution to the above serious problems very simple: Entirely disregard the proposed Rules of Procedure and adopt the Rules of Practice for the Environmental Review Tribunal. These Rules recognize the distinction between party and participant, and give the Board sufficient powers to control abuses of hearing time. These Rules were not available at the time of the first Five Year Review hearing in 1991-92. They were specifically designed to do what the Hearing Officers evidently wish to do in the current Five Year Review -- conduct a streamlined and efficient, but also fair hearing. It is indeed ironic that when one enters the Niagara Escarpment Hearing Office portion of the Environmental Review Tribunal's website and clicks on "Rules," one is taken to the Environmental Review Tribunal Rules of Practice -- precisely the ones that should be used for the upcoming Niagara Escarpment Plan Review hearing. In summary, the proposed Rules of Procedure would make the upcoming Plan Review hearing a sham. They do little more than entrench the right of a citizen or organization to write a letter. It is essential that the Hearing Officers adopt the "Rules of Practice for the Environmental Assessment Board and the Environmental Appeal Board" as shown on the Environmental Review Tribunal website. CONE trusts that we have made our position on these matters clear. If you have any questions or comments, please do not hesitate to contact us.
Sincerely,
(Original Signed) c.c. The Honourable John Snobelen, Minister of Natural
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