October 2003

Disclaimer: Agrilaw is a syndicated column produced by the full service London law firm of Cohen Highley LLP.  Paul G. Vogel, a partner in the firm, practises in the area of commercial litigation and environmental law.   Agrilaw is intended to provide information to farmers on subjects of interest and importance. The opinions expressed are not intended as legal advice.  Before acting on any information contained in AgriLaw, readers should obtain legal advice with respect to their own particular circumstances.

Should you need to discuss a energy regulation related matter, please contact Paul Vogel or John Goudy by e-mail or by telephone at (519) 672-9330.  If corresponding by e-mail, be sure to include your name, your telephone number and a brief message.

“The people of Ontario have as a common goal the protection, conservation and restoration of the natural environment for the benefit of present and future generations.” So says Ontario’s Environmental Bill of Rights enacted in 1993 so that “the people should have means to ensure that (this goal) is achieved in an effective, timely, open and fair manner.” Where proposed development has been approved by regulatory authorities, how can this legislation be used by neighbours concerned about environmental impacts on their properties?

The Ontario Environmental Review Tribunal recently considered an application by neighbours of a limestone quarry for permission to appeal issue by the Ministry of the Environment of a Permit to Take Water (PTTW) under the provisions of the Ontario Water Resources Act. The permit authorized the quarry owner to pump and discharge 6.5 million litres per day, 30 days per year for a period of 10 years from the area aquifer as part of the construction and operation of a proposed new quarry. The proposed development raised concerns for area residents about both groundwater recharge and surface water impacts and adverse effects on well water quantity and quality in 180 wells within a 4 kilometre radius.

The Environmental Bill of Rights allows appeal of the issue of such a permit if “there is good reason to believe that no reasonable person…could have made the decision” and “the decision…could result in significant harm to the environment”. Previous cases have held:

“The reasonableness of the (Ministry’s) decision depends on whether it ‘could result in significant harm to the environment’. And any decision which could result in significant harm to the environment would be an unreasonable decision.”

In the case under consideration, the Ministry had issued the permit after concluding on the basis of reports submitted by the quarry owner that the taking of water from the proposed quarry would result in drawdown of the water table limited to the “immediate surroundings” and that the impacts on surface water features would be “minimal”. Granting neighbouring landowners leave to appeal, the Tribunal stated:

“…I believe it is fair to base this decision on the likelihood of a 1 m drawdown within a radius of 1 km from the site. Maps included in the revised PTTW Application show 15 wells within that area, nine of them drilled into bedrock. In my view, it is reasonable to regard the drilled wells, at least, as vulnerable to significant impact by the issuance of the PTTW. I do not see this as compatible with the opinion of the (Ministry)…”

“…the (Ministry) makes no comment on the number of residences (it) believes will be significantly affected or what “immediate surroundings” implies…all parties acknowledge that the site of the proposed quarry is a recharge area, not just an ordinary area of a drainage basin. Furthermore, the vulnerability of the drilled wells to sulphurous and salty water emphasizes that there is potential for impacts on water quality as well as quantity. In my view, the (Ministry’s) decision could result in significant harm to the environment.”

Where proposed development threatens the natural environment and the property of neighbouring landowners, the Environmental Bill of Rights may provide such landowners with the opportunity to challenge regulatory approvals. In such cases, landowners seeking to appeal the issue of government permits must be in a position to demonstrate that the approval granted could result in significant harm to the environment.