Ken Petersen…

Ken Petersen
Manager, Ministry of Municipal Affairs and Housing
Local Government and Planning Policy Division
Provincial Planning Policy Branch
777 Bay Street
Floor 13
Toronto ON
M5G 2E5

Re: Comments Regarding Bill 139, EBR File 013-0590

Dear Mr. Petersen,

Introduction

Gravel Watch Ontario acts in the interests of residents and communities to protect the health, safety, quality of life of Ontarians and the natural environment in matters that relate to aggregate resources. We are a province-wide coalition of citizens’ groups and individuals.

As presented in our prior submissions, Gravel Watch Ontario members all too frequently find themselves involved with the current Ontario Municipal Board (OMB) proceedings. These proceedings often involve decisions being adjudicated under both the Planning Act and the Aggregate Resources Act. The hearings can last for many weeks or months. They require an extreme investment of time, money and other resources from all involved. We speculate that aggregate hearings could represent some of the most complex hearings that the current Board undertakes. It is from those experiences that we offer the following comments after reviewing Bill 139.

Complex Aggregate Issues Require a Full and Thorough Exploration

While we acknowledge the apparent effort to streamline and create more certainty in land use planning throughout Ontario through many of the provisions of Bill 139, we remain concerned that the complexity of aggregate related land use decisions along with the need to ensure only appropriate aggregate operation are granted a licence under the Aggregate Resources Act leads us to call for treatment of these matters in a way that reflects the complex and technical issues that positive outcomes need to be based upon.

The emphasis on moving to a more “appeals” based secondary review process after a municipal council decision for a wide range of planning matters is understandable and supported, however in the case of aggregate matters we have concerns on whether a through exploration of any proposal will or can be made at the municipal process.

Our experience has been that many municipal councils lack the resources and expertise to deals with these issues. Public Meetings are not the same as Public Hearings. Pubic Meetings do not offer the opportunity for a probing of technical reports or municipal staff positions that a structured Public Hearing provides. Council meetings and municipal processes do not have the benefit of the highly structured and fair processes that administrative tribunals typically provide. The public and other stakeholders can for instance be severely limited in their ability to make submissions and present perspectives and arguments. In the end, we have concerns about the thoroughness, effectiveness and therefore the resulting outcome of the municipal process in these highly complex and technical matters.

Our understanding of some of Bill 139’s provisions is to significantly change the structure of the proposed appeal tribunals going forward. For instance, we understand that there is an emphasis on conducting hearings through written submissions. Given the sometimes very divergent opinions from recognized experts in the same field of study that often occurs in the current hearings, we struggle to see on the differing positions will be resolved without the benefit of oral cross examination to test and challenge the opinions being presented.

Our consideration of the above leads us to recommend that complex and technical issues such as aggregate proposals require a de novo level of exploration of the issues together with strong consideration of the prior municipal decision. Simply reviewing that municipal decision for consistency with current planning policies and provincial plans would leave many important issues unsurfaced, unexplored and unresolved.

Additionally, we continue to call for further reforms as presented in our original submission:

Environmental Issues often embedded in Land Use Planning

As environmental issue are often major components of complex hearings on aggregate land use planning matters, we strongly recommend that the Tribunal adopt a multi member panel to adjudicate those cases and that the composition of that panel be compromised of members of both the Local Planning Appeal Tribunal and the ERT (Environmental Review Tribunal).

Financial Support to allow full participation

Gravel Watch Ontario members have been told by their local municipalities on more that a few occasions that the municipalities will not deny an aggregate application because the matter will almost certainly end up in front of the OMB and that they, the municipality, can’t afford the costs associated with supporting their objections through the OMB process. If municipalities are finding themselves in that unfortunate and prejudicial situation, imagine what it is like for citizens. For them the costs of participating in the OMB process can seem incomprehensible.

The net result of this situation is that the system is weighted heavily in favour of those in the industry, who have the resources, knowledge and experience (and access to a stable of planning, environmental and other professionals with specialized expertise) to skillfully argue their case before the current Ontario Municipal Board.

Intervenor funding similar to what exists for other issues in the province is needed to address the fundamental imbalance favouring industry. At the very least Sec. 69 of the Planning Act which allows applicants to pay for municipal hearing costs if the municipality supports the application need to be removed in order to level the playing field.

Transparency and Accountability

Currently Board hearings are not routinely recorded. Members of the public or legal representatives are often prohibited from recording any part of the proceedings. This is not consistent with the rules at other tribunals or court proceedings. In the reflecting on cases when hearings have be recorded by transcription, adhoc feedback indicates that the calibre of presentation and debate rises. Putting the OMB hearing proceedings “on the record” will raise the bar for all involved.

Qualifications of Board Members

Gravel Watch Ontario members report a wide spectrum of experiences with different Board members. Some of the experiences are very positive, but unfortunately some are not. The quality and consistency of Board members needs to be increased either by revised qualifications for new Board members or by improved training for existing staff. Performance management programs and formal complaint processes need to be established.

Conclusion

Gravel Watch Ontario appreciates the opportunity to add our feedback and perspectives on Bill 139. We thank the government for the opportunity to input into this process and look forward to next steps.

If you should have any questions or would like to discuss our comments in more detail, please feel free to contact us.

Sincerely,
Graham Flint

President
Gravel Watch Ontario
http://www.GravelWatch.org
mailto:grahamflint@gravelwatch.org

[Original Comment ID: 210753]