Extending the Greenbelt Into Simcoe County: Defending the Peacemaker’s World
John Bacher PhD
Elder Danny Beaton (l) and the author, Old Growth Maple forest at risk at French’s Hill, Waverley, ON, Sept 2015
My friend Danny Beaton (Mohawk Six Nations) has worked with me for the past decade to protect the sacred but threatened landscape of Simcoe County, better appreciated as Huronia. This was a homeland to a great civilization, now dispersed to Oklahoma and Lorette near Quebec City. It is best appreciated he explained to me as “The Peacemaker’s World.”
The Peacemaker was a Huron who journeyed over Lake Ontario to found the Iroquois Confederacy. That such a prophetic figure, a visionary upholder of good constitutional goverence, should have emerged out of Simcoe County, is expressive of why all its remaining rural landscape needs to be protected by the Greenbelt. Rather than following the Peacemaker’s principles of the Good Mind, it has become the Wild West of urban sprawl.
The essence of the Greenbelt is that it protects natural areas from intrusions and the entire rural landscape from urban boundary expansions. Once lands are put into the Greenbelt, they are protected for ten years. As was witnessed by the last bitter battles over the Greenbelt Review, the decennial review can be intense, but it is much more transparent process than the myriad of offical plan amendments, council decisions and OMB hearings which are the alternative.
For the past decade Danny and I have clashed with municipal councils on a wide range of issues. One surprising thing I learned was that in the northern part of Simcoe County, in and around Tiny Township, that there are actually surviving old growth forests. These however, are not well protected because of the complex battles between the County, municipalities, developers and the Ontario Municipal Board. (OMB)
Simcoe County did develop a candidate list of protected natural areas through a study conducted in 1996. Its recommendations have still not made it into the Simcoe County Offiical Plan. One of its suprising findings that in Tiny Township there are still “extensive tracts of forests” that “are important habitat for a number of forest interior (bird) species as well as for mammals such as Black Bear, Martin and Fisher which have large home ranges.”
The ignored 1996 natural heritage report found that the northern part of Simcoe County still had “vast tracts” of old growth forests. These it found “represent the last vestiges of what southern-Ontario looked like in pre-settlement times. Unlike much of southern Ontario, where the original woodlands have become highly fragmented these woodlands survive as “unbroken forest blocks”.
Danny Beaton and I recently were devastated to witness devastation in one of the core old growth, predominately Sugar Maple forest blocks of Tiny Township at French’s Hill. Äfter seeing this he asked, “Why do corporations continue to rape and pillage our forests, wetlands and water ways to Georgian Bay? Why do companies continue to stake claim to the last endangered treees and forests with immunity from Simcoe County Governance? Why are citizens being ignored in county meetings that are set up for citizen particpation and shared authority over land rights and development?
Beaton and I have also been deeply involved to protect the legacy of reforestation in Simcoe County, that brought back to life a landscape turned to desert by deforestation.
With Danny Beaton I was able to particpate in the occupation with the Beausoleil First Nation in the occupation of Springwater Provincial Park. After a year this caused the provincial park to be re-opened. While this campaign was successful, I became aware too late of a terrible development across the road from Springwater Provincial Park. This was on private lands that had been reforested sixty years ago, and were designated as an Environmental Protection area in the Springwater Township zoning by-law and official plan. Despite this designation and although the area is not serviced with sewers, the lands were rezoned and designated to permit the construction of the Black Creek Estates of Snow Valley.
The Black Creek Estates were simply the vanguard of destructive development schemes around Midhurst which have the goal of increasing the community ten-fold in population to around 30,000 people. What makes this scheme so harmful is that it through massive storm water runoff, will impact the Minesing Wetlands a treasure house of bio-diversity. It is the only refuge in Canada for the Hines Emerald Dragonfly. This is a vernal pool obligate species, much like the Spring Peepers and Chorus Frogs which explode into a magnificent symphony of sound when the snow begins to melt. Some 135 native bird species nest in the wetland. One of the most spectular of these features are two nesting colonies of Blue Herons, one of which has more than two hundred nests.
The Peacemaker’s World can only be protected by the direct action of the provincial government putting rural lands in Simcoe which protect such natural wonders as the Minesing Wetlands into Ontario’s Greenbelt. This move needs to be carried out before the next provincial election. Rather than being seen as a controversial hot potato to be tossed around and evaded, the province needs to make a bold move that would win it plaudits from a public prone to cyncism.
Brief by Dr. John Bacher PhD, Researcher Preservation of Agricultural Lands Society (PALS) on Bill 39, Better Communities and Conserving Watersheds Act.
October 16, 2017
1. PALS Views Hearings as Critical Opportunity to Set Ontario on a Greener Path
PALS views the hearings on Bill 39 as a critical opportunity to move Ontario is a more ecologically sustainable direction. Such a shift is necessary in view of increasing population, pressures on land and water from climate change, economic growth and loss of bio-diversity. There are reasons for optimism however, in the refinement of the basic instruments that deal with these challenges: the acts that establish the Ontario Municipal Board and Conservation Authorities.
Given that Ontario has increased both wealth and population since the passage of the Planning Acts of 1946 and Conservation Authorities Act of the same year, it is astonishing that much of the ecology of our province is in better condition now than it was at that time. This is largely because forest cover in southern Ontario and consequently watersheds, is better than it was when these acts were passed. This can be vividly seen in the example of the Credit River, which although flowing through a watershed of around 800,000 people, is witnessing the return of the long extirpated, Atlantic Salmon. Also the devastation caused by low forest cover such as desertification and flooding has largely vanished into history through reforestation efforts spearheaded largely by Conservation Authorities. .
Despite the successes of land use planning and Conservation Authorities since 1946, there remain serious challenges, the most important of which concern pressures on Conservation Authority staff by municipal councils influenced by land development interests, which also contributes to bad land use planning decisions by municipal governments. The best way to address this problem is by restoring the balanced representation between municipal and provincial representation on authority boards which was lost by the 1996 amendments to the Conservation Authorities Act.
2. Merging of Ontario Municipal Board (OMB) and Conservation Authority Act Legislation is Reasonable Given Development of Legislation in 1940s.
The approach taken in Bill 39 is similar to the intellectual ferment in the 1940s that resulted in the Planning Act and Conservation Authorities Act. In this regard however, it should be stressed, that while the conservation legislation approximated that advocated by reformers, the approach taken by the Planning Act did not. It merely facilitated land use planning in a permissive way by municipalities, with little provincial oversight except through appeals to the OMB.
The broad outlines of what is seen as good planning today, focusing urban growth in Ontario south of the Oak Ridges Moraine and the Niagara Escarpment coupled with the protection of wetlands and stream valleys, is all seen in the early land use planning studies and conservation authority reports of the 1940s. What was not implemented at the time however, was a recommendation for a Land Use Planning Board for Ontario. This would have directed the basic land use planning for Ontario-protecting the lake after which the province is named, by guarding the headwaters of its streams and its river tributaries. It would also keep sprawl away from polluting the vital cold water trout streams that nourish Lake Simcoe and Georgian Bay.
3. PALS’ Brief on the Need for Ontario Land Use Planning Board is Appended to the Brief
PALS has written earlier at length of the need for an Ontario Land Use Planning Board, to replace the OMB. We do not believe that the proposed Local Appeals Tribunal has the serious mandate to correct errors by municipalities that would facilitate sprawl, as compared to one that has a clear obligation to uphold the principles of provincial land use planning. There is a serious danger, well expressed by environmental lawyer David Donnelly, who has provided legal counsel to PALS, that the OMB will change from a rubber stamp for developers, to one for municipalities.
At a recent OMB hearing which resulted in a favourable decision that stopped a proposed urban boundary expansion immediately south of the Niagara Escarpment in Niagara Falls, PALS was shocked by narrow municipally- centered arguments that mocked the very notion of provincial land use planning. When an expert planning witness from the province testified that it had been provincial policy since the 1980s to have planning need based on calculations of need determined by upper- tier projections, the proponent’s lawyer argued that the planner was simply stating “ministry gospel.” This example of poor municipal planning confirms our view, that the reformed Planning Act’ appeals tribunal’ to emerge as a result of your deliberations should retain the right to clearly reject municipal decisions, not simply send them back for reconsideration.
The mocked “gospel” of the ministry, might be hard on municipalities and developers, but it is truly “good news” for those who care for the environment. Upholding the principles of provincial policy should not be entrusted to local appeals or municipal board, but one entrusted with upholding provincial land use planning. An Ontario Land Use Planning Board is long overdue.
4. Ecological Devastation Caused Movement that in a Decade Resulted in the Conservation Authorities Act.
Discussions of changes to the Conservation Authorities Act need to be put into the context of what propelled the legislation. This was environmental devastation caused by the deforestation of the watersheds of the fertile farming areas, south of the Canadian Shield, in Ontario.
The passage of the Conservation Authorities Act of 1946 was the culmination of a nine year-long struggle spurred by the Thames Flood of 1937. Most dramatically the flood engulfed underwater a quarter of the city of London, Ontario. A number of other communities were devastated by flooding, most notably Stratford.
There had been reforestation efforts in Ontario since 1905 assisted by the province, which got an important surge from the County- led reforestation efforts of the Agreement Forest program of 1921. However, to stop flooding, these needed to be carried out on a more comprehensive, watershed basis. Middlesex County for instance, although centered for a large area around London, could not by its own reforestation efforts avert the flooding of the Thames. Many important areas that the Northern Thames Watershed Authority protected and reforested after it was created in 1947, for instance, the Dorchester Swamp, were located outside Middlesex, in Oxford County.
In the first few decades of the work of Conservation Authorities there were some significant controversies around dams. Even in areas where major dam construction was undertaken, notably near London, reforestation remained important since it prevented reservoirs from being clogged up with silt generated by erosion.
Some of the successes of Conservation Authorities were achieved without any dam construction, but almost exclusively through, reforestation. One of the most vivid successes was the work of the Ganaraska Authority. At one time forest cover in the Ganaraska was only at five percent. Then in the 1940s, the river flooded downtown Port Hope every two years. Now forest cover is at 45 per cent and there has not been a flood in Port Hope since 1980.
Most of the reforestation carried out in the Ganaraska watershed, as in most of southern Ontario, was on marginal land, suitable not for cropping, but only pasture. This was carried out on the Oak Ridges Moraine.
In the past, dam controversies because of their threat to native aquatic life forms, notably fish, were the major stain on the work of conservation authorities. This was eliminated in the early 1970s by the passage of the Environmental Assessment Act. Its provisions to consider the need for alternatives to an undertaking eliminated the justification for new flood control dams. This is because its provisions for alternatives to such undertakings, which harmed fish habitat, showed that dams could be avoided by planting more forests.
5. Urban Sprawl is now the Chief Threat to Past Conservation Success
Urban sprawl has now become the biggest threat to the successful legacy of conservation. This was a serious threat to the Ganaraska watershed itself. In the 1980s a movement arose to “Save the Ganaraska Again.” This time the threat was not farmers cutting trees, but rather developers.
The Ganaraska was saved a second time through the movement to protect the Oak Ridges Moraine. A ten year ban was placed on any urban boundary expansions in its headwaters. This has been recently reaffirmed and re-extended after considerable controversy during the just- completed review of Greenbelt.
In my publicity efforts to promote the life of a key architect of the Conservation Authorities Act, Edmund Zavtiz, I am continually shocked at the basic threats to the past rescue of Ontario through reforestation. Next to Springwater Provincial Park, I saw an estate residential development established on reforested lands that had been zoned for environmental protection. A few months later I was horrified to see the park threatened by closure, which was only stopped by a native occupation, in which my close friend Danny Beaton, a Mohawk of the Six Nations, played a major role.
6. Work with Native Peoples Showed Need for Provincial Representation on Conservation Authority Boards.
The importance of provincial representation on Conservation Authority Boards came to my attention through working with the adherents of the traditional Iroquois Confederacy. In the early 1990s a friend of mine, Brian Wiles-Heap, was working closely with the Confederacy in their successful efforts to stop canalization of the Grand River. In this the support of the provincially- appointed chair, Archie Mac Robbie was key. He was the only person there who would listen to the concerns of the confederacy chiefs, such as Arni General. The agreement he signed with the provincial government on a Grand River Strategy for the Management of a Heritage River in 1994 finally stopped schemes to canalize the Grand.
After Wiles-Heap’s departure to the United States to work on the issue of the protection of Redwood Forests, I continued to work with Confederacy environmental activists, such as their delegate to the bi-national Iroquois Confederacy Committee, Norman Jacobs. This concerned their efforts to have tree planting along the Grand River and its tributaries. They sought such reforestation to protect fish habitat, through means such has providing shade during hot summer months.
During my work with the Confederacy I was horrified to see that the critical bridge in their efforts to use native rights to restore the Grand, the provincial representatives to the Conservation Authority boards were all removed. This was done in a quite abrupt manner before their normal four year terms expired. This effectively removed any serious influence over the Conservation Authority Boards, which became exclusively dominated by municipal politicians.
In my meetings in the Upper Cayuga Longhouse, the seat of the Confederacy’s government, I was told that mismanagement of the environment was death knell of treaty rights to hunt and fish. Only 18 per cent of the Grand River is in forest cover and it remains a major source of phosphorous contamination in Lake Erie. This situation has been encouraged by the ill-considered removal of the very representatives on the Grand River Authority Board most inclined to listen and respect the ancient wisdom upheld by the chiefs and clan mother of the Iroquois Confederacy. It is Canada’s oldest continually functioning government.
7. Working with Native People Drew to Attention to Problem of Conservation Authority Governance in Simcoe County.
It is working with native peoples of the region of Simcoe County that I have been most shocked by the two contrasting world- views of native people and the dominant settler-colonial society. What really brought this home to me was the water walk sponsored by the Ojibway of Georginia Island. The forest of their small reservation was bigger than any we had walked on around the lake, in part since the lands around Orillia are one of the few parts of the province to be without a Conservation Authority. This is largely because of the fierce determination of municipal councilors against having any such body established.
The patchy nature of Conservation Authorities around the province is of serious concern. A flaw in the original legislation is that their establishment is one of a complicated municipal option. Their establishment should definitely be compulsory, as are boards of education.
Essentially the establishment of Conservation Authority Boards were held up for decades in many parts of the province by narrow self-interested real estate and development interests that held sway on municipal councils. This can be seen in the strange situation that there are two (northern and southern), Thames River Conservation Authorities –a matter commented upon by former director of the Authority branch, Alfred Barnes.
The Northern Thames authority was created very quickly in 1947. Keeping out municipalities in the southern part of the Thames was the only way that a Conservation Authority could be formed to rescue London from serious flooding threats. Support for the Lower Thames Authority only came twelve years later in 1959, finally secured by the province’s threat to refuse compensation payment for flooding damage.
From my own biography of Mel Swart, an important founder of PALS, I understand how difficult it was to secure the creation of the Niagara Peninsula Conservation Authority (NPCA) . Mel explained to me the determination of municipal councilors opposed to it, who also fought the establishment of a tree cutting by-law.
In many parts of the province municipal councilors who initially fought the establishment of Conservation Authorities, later clashed with the staff that operated them over issues related to their advisory role in land use planning. This most vividly ended the career of one of Ontario’s most effective public servants engaged in conservation, the late Mac Kirk. The conflict relayed to me by the former Niagara Regional Planning Commissioner, Corwin Cambray, emerged out of his co-operation with the research of Len Gertler, which was a prelude to the establishment of the Niagara Escarpment Commission.
The problem of the fusion of developer interest and the control of Conservation Authority boards became evident with two firings of the senior staff of the Nottawsaga Conservation Authority in 2014, Those impacted were Wayne Wilson, who served as CAO of the authority for 22 years, and Patti Young a senior planner. The firings came after Young sent a barrage of hostile questions to the Springwater Township Council concerning urban expansion. The board of directors was composed of supporters of massive urbanization of 30,000 new residents in Midhurst on prime agricultural lands. Development on such a massive scale threatens the health of the Minesing Wetlands, a refuge for the Endangered Hine’s Emerald Dragonfly, and other unusual wildlife such as the Trumpeter Swan, Sturgeon, the White Fringed Orchid, and the Cerulean Warbler.
8. Problem of Loss of Provincial Representation on Conservation Authority Boards is Unfortunately not a Crowd – Raising Issue
The loss of provincial representation on Conservation Authority Boards stirred up more environmental experts than protestors. When introduced, it drew the ire of foundations with long experience of working in partnerships with Conservation Authorities and the province to acquire natural areas, not demonstrators who rallied in massive protests.
Until 1996 the province appointed five members of each authority board, including the chair. Some of the most distinguished chairs served on the Toronto and Metropolitan Region Conservation Authority Board, beginning with its first, Herbert Arthur Richardson. (Author of what is still the only book on Ontario’s Conservation Authorities, “Conservation by the People”, introduced by Alf Barnes.) A long-time assistant of Edmund Zavitz, he helped to spearhead the movement to create conservation authorities.
The last provincially-appointed chair of the Toronto regional Conservation Authority was a remarkable urban forester, William Granger. He was an architect in encouraging urban forests -converting large swaths of previously mowed grass to healthy forests.
My criticism of the elimination of provincial appointments to Conservation Authority Boards is not intended as a partisan critique. The previous successful model of governance was developed by the Conservative administration of Premier George Drew, while the current flawed approach was the work of the Conservative government of Mike Harris. The proposed legislation essentially adopts the model for Conservation Authority governance of Premier Harris, not the better one of Premier Drew.
I supported the Harris government’s creation of the City of Toronto and other municipal re-organizations. These wrongly drew massive protests. However, the elimination of provincial representation on Conservation Authority Boards had quite harmful impacts. Sadly they were noticed by only the professional staff and most dedicated members of environmental philanthropies. They did make presentations to the appropriate provincial legislative committee but these were covered only on the back pages of newspapers such as the Globe and Mail. I read an article in the Globe and Mail at the time and indicated that the environmental philanthropies, which were caught off guard by the need to become protesters, were concerned about the possible sale of Conservation Authority lands which were acquired through partnerships with them.
I am not aware of a single incident of even the allegation of corruption or lesser abuse of power of a provincially-appointed Conservation Authority Board member. Rather than such practical considerations removal of provincial appointees seem to have been made on the basis of narrow ideologies of municipal autonomy.
Unlike the hiring of municipally- appointed Conservation Authority Board representatives which are conducted in secret, provincial appointments are vetted through an all party committee of the Legislature. This provides a safeguard against inappropriate appointments . Whatever such ideas may hold in the abstract teachings of political science they are not in accordance with the Canadian constitution. It states clearly that municipal governments have no inherit rights, they are simply a responsibility of provinces.
9. Niagara is A Tragic Example of Municipal Dominance of Authority Boards but itis Not Unique
In Niagara over the last few years I have been a leading critic of the municipally -appointed Niagara Peninsula Authority Board. (NPCA). I have purposefully left this to the end of my presentation. I have found that the persecution of the staff of the NPCA by the municipally – elected representatives to be a devise to challenge my own achievements in the protection of the environment, especially that of the Thundering Waters Forest.
Thundering Waters is a 483 acre predominately-swamp forest, a haven to a great variety of rare species, most significantly now, three species of bats that need old growth forests for roosting. It also has a large area of vernal pools which provide critical breeding habitats for obligate species such as the Grey Tree Frog, Wood Frog, Western Chorus Frog, Spring Peepers and the Blue Spotted Salamander.
Recently as a result of a recent sit-in by brave environmental activists, it has been found to have a significant population of a provincially Threatened Species, Liatris Spicta, a colourful wildflower commonly called the Dense Blazing Star. It also appears to be the only Ontario location where another listed species, the Nine Lined Lady Beetle is present, although denied as surviving in the Province by some scientists.
The entire reason for the controversies over the NPCA governance in Niagara is based on the support given to me by their dedicated, now unionized through OPSEU, employees. This was sparked by my role in 2008 in protecting the Thundering Waters Forest. As a result of my efforts, assisted by NPCA employees, most of this area is now protected as the Niagara Falls Slough Forest.
In 2008 I filed an appeal with the OMB of a decision of the Niagara Falls council, passed by only one dissenting vote, of a re-designation of the Thundering Waters Forest from industrial to mixed residential-commercial use. After filing the appeal I was contacted by the developer’s solicitor, to negotiate a settlement. After several meetings an agreement was reached. I accepted the solicitor’s arguments that if I wanted to preserve this forest I would require the support of the experts with the Ministry of Natural Resources, (MNR), who could ultimately end up supporting me in an OMB arbitration.
The most difficult part of the agreement, which was not initially offered to me, concerned obtaining access to the site, if requested, for a wetland re-evaluation. This however, was obtained and subsequently honoured by the developer.
From conversations with a former NPCA employee, I was informed that there was great excitement at finally being able to go onto the Thundering Waters Forest site, since access in fact, had previously been denied. I was also told that the developer had agreed to the terms since they thought the re-evaluation would not change anything.
During the two years that the evaluation went on from 2008 to 2010 I was assisted by a close personal friend, John Lynn in communicating with what was going on. From conversations with him, buffered by those with NPCA employees it became clear that senior management at the NPCA believed a wetland evaluation was due. This was because of the need for ten year reviews where unprotected, (non-significant) wetland was just a few points below the 600 threshold required for protection.
NPCA staff assisted MNR in the wetland evaluation. A previously undocumented grove of Black Gum trees was identified, and as NPCA employee rolled over a log during a site visit. This revealed the presence of the Blue Spotted Salamander. These findings were previously denied by the developers’ ecological consultants, who were present during the site visits, but confirmed the new species findings.
When the protected Niagara Falls Slough Forest was recognized in 2010 I regarded it as one of the great accomplishments of my life. Others however, were not so happy. This was well expressed by a prominent Regional Council, Bruce Tims.
Tims said that in 2010 a situation emerged where it appeared that the NPCA had lost its “balance.” This meant that in his view and others on its board, that it has become overly focused on the protection of the environment. He said this in a St. Catharines City Council meeting, before Council debated a request made by Niagara conservationist Ed Smith, that it call for a provincial audit into the NPCA.
The NPCA Strategic Plan legitimated the subsequent firing of Conservation Authority staff. In this regard it should be understood that the developers’ agents were on site during the wetland evaluation. This means that they witnessed episodes such as the kicking over of the log that resulted in the discovery of the Blue Spotted Salamander. The person who made this discovery was the first to be fired by the NPCA Board, in a session, which I was told directly by the victim, involved a direct encounter with the then Board Chair.
I agree with the requests of many that a provincial supervisor be appointed for the NPCA. If there is no current provision in the act this is the time to put it in. However, for a long term solution, when the supervisor leaves, there must be a return to at least the level of provincial appointment to Conservation Authority boards that existed before they were eliminated in 1996.
10. Hopefully Your Deliberations will be an Important Turning Point in Ontario History
I hope your deliberations will be a significant turning point in Ontario History, similar to the 1939-1940 hearings into the Department of Lands and Forests. Here a courageous conservationist John Irwin, denounced the firings of men such as Alfred Barnes, much as I am defending dismissed ecologists today. This resulted in a new thrust for public policy in Ontario towards conservation, which I hope your actions will set in motion.
On Thursday, July 20th, 2017 the Ontario government finally showed the courage to say no to developer lobbyists when it finally said no to five years of pressure to gut wetland protection policies that have been in place since 1991. It rejected proposals to permit “bio-diversity offsetting” that would permit the destruction of provincially significant wetlands which are an important refuge for endangered wildlife.
Five days after the province firmly defended wetlands on Tuesday, July 25 after failing to publicize the wetland policy review the Globe and Mail leaped to the defense of developers who had advocated offsetting. It published an article by Jill Mahoney, “Fight for Wetland Stalls large Niagara Falls Development.” The particular development had offered itself as a pilot project for bio-diversity offsetting.
Mahoney‘s account was most bizarre that while ignoring the ultimately failed attempts by developers to change wetland rules through offsetting, it was full of angry quotations by the Mayor of Niagara Falls, James Diodati.. He denounced how, “The rules are being changed as the game is being played out.” This was a reference to a decision, following existing rules by the Ministry of Natural Resources and Forestry, (MNRF), to increase in October 2016, the area of wetland protected from development.
Mahoney focused on the opposition to the project came from the foreign owned nature of the current version of the threat to the Thundering Waters Forest. Her article only had one quote from an ecologically minded opponent of the development, retired Canadian forces captain, Edward Smith.
Based on a three hour interview Smith’s quote was narrowly limited to his concerns about foreign ownership. This ignored how he is being subject of a law suit based on his concerns for firings at the Niagara Peninsula Conservation Authority, (NPCA) these were expressed in a document which it attributed to him titled, “A Call for Responsibility.” The firings, although motivated by efforts of NPCA staff to protect the Thundering Waters Forest, took place before the property was transferred to its current owners.
Nine years ago when I and Jean Grandoni opposed the destruction of the Thundering Waters Forest at Niagara Falls City Council we were faced with a strange argument by the developer’s solicitor. This was that the scheme should be supported because of the prominence of the various local families behind it. Their support resulted in an appeal by me of the council’s decision to the Ontario Municipal Board. (OMB)
Following filing an appeal to the OMB I was contacted by the developer’s solicitor who asked me to engage in a mediation process. After several meetings, he agreed that the then Ministry of Natural Resources (MNR) would be given access to the site, if requested to do a wetland evaluation. On this basis I withdrew my appeal and minutes of settlement were signed.
Unknown to the solicitor, when we signed the Minutes of Settlement a Pelham area environmentalist, John Lynn, had contacted brave staff persons at the NPCA, urging them to help me with my OMB appeal. Lynn is the only surviving individual who was part of the core group of eco-justice activists who in 1959, led by future Ontario legislator Mel Swart, persuaded the provincial government to create the NPCA.
NPCA staff was overjoyed when following signing of the Minutes of Settlement; MNR invited them to accompany them on the evaluation. They took part in the discovery of two previously unidentified species that were not recorded when the owners denied MNR access to the site. These were the Black Gum, an endangered tree, and the regionally significant, Blue Spotted Salamander. The findings resulted in the protection as significant wetlands, of 281 acres of the 484 acre site.
The process of the wetland re-evaluation was quite laborious stretching from 2008 to 2010. The slow process was required by the legal need for the ecological advisers of the owners, Lisa Campbell and Richard Brady, to be present on the site visits. I learned about the victory through reading a Niagara Falls Planning Department report filed at a City Council meeting.
The rescue of the Thundering Waters Forest ignited a storm of protest from developers. Sympathy for their complaints among the Niagara Regional Councilors that control the NPCA board, triggered NPCA staff firings legitimated through a planning exercise known as its Strategic Plan.
On Strategic Plan advisory boards key figures involved in attempts to develop Thundering Waters served, notably the developer’ solicitor, Lisa Campbell and Richard Brady. This resulted over six years in the firings of 21 NPCA staff documented into an appendix to “A Call for Responsibility.” These firings also eventually resulted in the unionization of the NPCA through the Ontario Public Service Employees Union, (OPSEU)
During the carnage of firings at the NPCA a new threat to wetland protection emerged because of lobbying efforts by the Fort Erie Chamber of Commerce. These sought to remove wetland protection within Fort Erie’s urban boundaries.
What triggered the Fort Erie Chamber’s indignation about wetland protection was a large old growth swamp forest, dominated by oaks and hickories, known as the Thompson Road woodlot. It shades the mouth of Frenchman’s Creek and the Niagara River. This makes it an important refuge for waterfowl such as herons.
Both the Thompson Road Woodlot and the similar wetland forest Thundering Waters were recommended for protection from development in a 1980 study of ecologically sensitive areas of Niagara known as the Brady report. This continues to be the only comprehensive study of land use planning based on the need to protect threatened eco-systems in Niagara that are hot spots of bio-diversity. An attempt by the NPCA to update the Brady report did not look at the entire City of St. Catharines. Recently Lisa Campbell has penned another report justifying deforestation in St. Catharines in an environmentally sensitive area identified in the Brady report as the Escarpment-De Cew Forest.
Unfortunately, the Brady report has not been well reported on in the Niagara area corporate controlled media. Few know of its pleas to protect Thundering Waters (originally called Ramsey Road Woodlot), the Thompson Road Woodlot, the Brock Decew Forest and the Irish Grove Woodlot. (A Grimsby Forest threatened by a road). This widespread ecological literacy provided a favorable opportunity during for the Fort Erie Chamber of Commerce to attack provincial wetland policy in an all candidates meeting held during a provincial by-election. This sparked a review of provincial paper which featured a discussion re paper of biodiversity offsetting. It was during this period of policy review that the Thundering Waters forest was sold to foreign investors.
After the sale of the Thundering Waters Forest, the new owners came forward with a development proposal that was originally based on bio-diversity offsetting. This was the first time since 2010 that a specific development proposal had been made. The original focus of development, an old growth forest immediately south of Oldfield Road, had now become a protected wetland. After two demonstrations at the Niagara Region and Niagara Falls City council, development on the basis of offsetting was dropped.
In June of 2016 an attempt was made to justify development of the 203 acres of the Thundering Waters Forest which were not provincially significant wetlands. This was attempted through a draft Environmental Impact Study (EIS). It was prepared by Dr. Stephen Hill, of the consulting firm, Dougan Associates. It helped to set in motion a native led protest, organized by an Oneida resident of Niagara Falls, Karl Dockstader.
Prior to the release of Hill’s report a deluge of requests were made by concerned Niagara Falls residents to the Niagara Falls Planning Department that whatever its findings, the EIS, commissioned and paid for by a developer, be subjected to an independent peer review. What makes this particular aspect of the struggle to save Thundering Waters so revealing was that it was led by Linda Babb, whom the Globe and Mail interviewed at length, but was never quoted from. As a result of this input, as provided for in the Niagara Region’s and City of Niagara Falls official plans, an independent peer review of Hill’s report was made.
The peer review was conducted by North-South Environment by an Ecologist, Leah Lefler. The most important part of her critique was an observation on page 3 that at this stage of the development process, according to the Ontario Wetland Evaluation System, (OMERS) that additional lands should be examined for wetland evaluation.
Lefler stressed that OMERS required that the unprotected wetlands at Thundering Waters should “be evaluated” to see if they should be protected “as part of “the Niagara Falls Slough Forest Wetland Complex Provincially Significant Wetland.” She also stressed that existing provincial and municipal policy required that all wetlands on site “greater than 2.0 hectares” should be designated as an Environmental Protection Area” (EPA) in the Niagara Falls Official Plan and protected from development. She also demanded that acoustic surveys of the breeding habitats of endangered bat species be conducted.
Although the City of Niagara Falls kept Lefler’s report secret (it was revealed only after an access to information act request by Ed Smith), its key recommendation was acted upon. As the Globe and Mail reported a wetland evaluation visit was made in late September 2016. As a result of the site the area of protected wetland was increased to 335 acres. The developable acreage has now shrunk to 149 acres, much of which is further restricted by buffering constraints.
The Globe and Mail failed to comment on the ecological significance of the additional acreage protected through the application of the OMERS methodology and the comments of the peer reviewer. Some details of the significance of these lands are clear from Hill’s own draft EIS.
Hill’s June 2016 draft EIS revealed three areas of what were then unprotected wetlands with old growth forest characteristics. These areas having trees with cavities and grooved bark are important for roosting habitat for the endangered Little Brown, Northern Myosis and Tri-Colored bats. Under Hill’s EIS, which was discredited through Lefler’s peer review, these areas were targeted for what Hill termed a “Tree Saving Plan.” This called for saving individual old growth trees while permitting development around them.
One of the old growth areas north of the rail line which runs through the middle of the Thundering Waters Forest was identified by Hill as a Fresh-Moist Oak-Maple Hickory Deciduous Forest. Hill admitted it is “notable for the size distribution of mature trees”. His EIS found that this area also provides breeding habitat for two Species at Risk birds. These are the Eastern Wood Pewee and the Wood Thrush. Both species are experiencing serious declines because of deforestation.
Another area of old growth forest rescued by the increased area of protected wetlands is a block of Oak Mineral Deciduous Swamp. This Hill admitted was “an exceptional example of Carolinian slough forest, containing high diversity of native species and a variety of vegetated habitats.” Here are found rare Buttonbush communities. This forest contains numerous vernal pools. They provide breeding habitat for the Blue Spotted Salamander and various frog species. It is also habitat for a rare plant, Shreber’s Aster.
A block of Old Growth Oak Mineral Deciduous Swamp which was upgraded to protected status is south of the rail line near the earlier protected wetland that is home to a spectacular White Oak giant known as the Thunder Oak. It contains rare Rufous Bulrush and Buttonbush communities. This newly protected forest also has vernal pools important for breeding amphibians and nesting areas for Wood Thrush. A less ancient block of mature forest south of this area was protected. It has Wood Thrush . breeding habitat and vernal pools.
Through the wetland review protection was also extended to a large block of mature forest adjacent to Dorchester Road and the Chippewa Parkway along the Welland River. This has vernal pools that provide amphibian habitat. The swamp also provides nesting for the Eastern Wood Pewee.
The wetland review also protected a number of pockets of Willow Mineral Deciduous Swamp. Currently dominated by Black Walnut and Eastern Cottonwood, these pioneering woodlands are succeeding into a Pin Oak forest. They also have important amphibian breeding habitat.
Ecological studies reveal that there are severe constraints to even the 149 acres of the site that are not protected wetlands. Hill’s own draft EIS reveals that most of this area provides breeding habitat for Wood Thrush and the Eastern Wood Peewee. They also provide important foraging habitat for another Species at Risk, the Barn Swallow.
Repeating the mantras about job loss, the Globe and Mail did nothing to deal with the reasons for the opposition, based on concerns to the threat of habitat loss of endangered species. It is a text book example of the mentalities that are creating an extinction crisis.
Dangerous Environmental Consultations Result in Conservationist Victories
Dr John Bacher
Niagara Falls wetlands protection was increased in the wetlands at Thundering Waters Forest.
On July 20, 2017 the release of the “Ontario’s Wetland Conservation Strategy” marked a major conservation victory. It was the happy ending of a five year battle that pitted conservationists against land development lobbies, marked by two public consultations requested by developers. One was a review of the Conservation Authorities Act. The other was a review of Ontario Wetland policy.
The intent of the two reviews was to weaken Ontario’s wetland protection system. It is the strongest and most scientifically driven aspect of southern Ontario’s land use planning system. Wetland protection safeguards the habitats of endangered species threatened by urban sprawl. Shaped by scientifically trained wetland evaluators, it is not subject to the intrigues of municipal councils and the machinations, dependent on the availability and qualification debates over proffered expert witnesses, of the Ontario Municipal Board (OMB).
Unlike looser land use planning controls in other parts of Ontario, in the southern parts of the province, outside of the Canadian Shield, once identified Provincially Significant Wetlands (PSWs) become protected from site alteration (i.e. urbanization). These protected wetlands are mapped by public servants working for the Ministry of Natural Resources and Forestry (MNRF).
In developing wetland scoring what is critical to MNRF’s 600 point scoring system are various features to protect bio-diversity. One is the presence of Species at Risk. Another is the presence of rare ecological communities.
I became convinced of the value of the current wetland protection system as a result of my nine year battle to protect the 484 acre Thundering Waters Forest in Niagara Falls. Through a 2008 appeal to the Ontario Municipal Board (OMB), we were able to trigger a process which led to much of the Thundering Waters Forest becoming a protected PSW. This was largely because of the presence of the provincially threatened Black Gum and the then regionally rare Blue-spotted Salamander. While MNRF was responsible for the wetland re-evaluation, they were assisted by quite brave ecologists working for the NPCA. There are also provincially rare Buttonbush and Rufus Bull Rush ecological communities which boosted point scoring.
The odious agitation led by developers was unleashed following the 2010 wetland re-evaluation that rescued Thundering Waters Forest. First there was a firing of NPCA staff who worked with MNRF in the wetland re-evaluation, a process justified by its Strategic Plan. Then the business community of Fort Erie, led by its Chamber of Commerce, launched a campaign for the elimination of PSW protections within urban boundaries.
Pressure from developers and their municipal council allies, who controlled the NPCA board, resulted in a review of the Conservation Authorities Act and the provincial Wetland Policy. This sought to weaken wetland protection. It was hoped that protected PSWs in Niagara Falls and Fort Erie, largely Pin Oak dominated swamps, full of vernal pools, which provide critical habitat for species such as the declining Western Chorus Frog, would be opened up for development. During this time of policy debate the Thundering Waters Forest was sold by Mountain View Homes to the Chinese owned GR Canada Investments.
A critical element of the developers’ strategy was securing changes to the Conservation Authorities Act. What was sought was a change in law that would allow the conservation authorities to conduct wetland evaluations. It was hoped by developers that this would get protective PSW designations changed by the harassment of conservation authority staff bullied by municipal politicians. Such bullying has caused the Ontario Public Service Employees Union (OPSEU) to describe the work environment of these agencies as toxic.
Developers failed totally in their schemes to change the Conservation Authorities Act. Powers to conduct wetland mapping and evaluation remained in the hands of MNRF.
The only changes that are being made to the Conservation Authorities Act as a result of public consultation are those which will increase provincial oversight of authority boards. These are spelled out in draft legislation called the Building Better Community and Conserving Watersheds Act. The legislation was provoked by outrage over efforts to reduce wetland protection by municipally controlled conservation authority boards. One of its key features is giving MNRF power to enact bylaws to compel authorities to disclose information related to their programs.
Developers failed also to gut wetland polices to subvert the strict no site alteration provisions for PSW lands. This was proposed in a public discussion paper to modify wetland policy through what was termed, “Bio-Diversity Offsetting.” Under this proposal previously protected wetlands could be destroyed if claimed to be replicated, or “offset” elsewhere.
What helped increase opposition to offsetting protected wetlands was a proposed “pilot” project in Thundering Waters. These protected wetlands are predominately an old growth swamp oak forest. They are the most challenging type of wetland to replicate. The slow growing nature of oaks has resulted in many failures to offset such wetlands in the United States.
The proposed pilot project resulted in two massive protests. These filled the council chambers of the Niagara Region and the City of Niagara Falls. As a result proposed council motions that suggested the province endorse the pilot project were withdrawn. The maladroit effort also encouraged massive public input into both the wetland policy and conservation act governance consultations, which had previously drawn little public attention.
The reaffirmation of the wetland policy was done through a government news release that accompanied it on the subject of “Conserving Wetlands to Fight Climate Change.” The key language of affirmation is there, even if buried on page 48 of the PDF version and page 42 of the printed version. It pledges that the government will be “Providing provincial oversight to improve conservation authorities while not reducing protection for those wetlands already protected by provincial policy (e.g. provincially significant wetlands, coastal wetlands protected by the PPS, 2014)”
Another original article by Dr. John Bacher, first published on JohnBacherPhD.ca.
July 26, 2017
Comments on Proposed Agricultural and Natural Heritage Mapping For Growth Plan Area by Preservation of Agricultural Lands Society.
Dr. John Bacher PhD
1. Agricultural and Natural Heritage Mapping Should More Deliberately Seek to Build Upon Existing Municipal Plans.
PALS’ is concerned that a rather abstractionist approach has been taken to the challenge of developing mapping for natural heritage and agricultural areas in the Growth Plan. Instead of starting from scratch as is being proposed, the existing municipal plans need to be carefully complied and studied to determine possible deficiencies which would then be corrected through the Growth Plan. The mapping needs to reinforce not undermine, existing good mapping for agriculture and natural heritage in the municipal plans within the Growth Plan area.
2. Goal of Growth Plan Is To Set Higher Standards for Land Use Planning
It has been PALS’ experience that the Growth Plan has encouraged better land use planning. In this regard our most positive experience with the Growth Plan came about from its disallowance by the province of proposed amendments, through sustained appeals to the Ontario Municipal Board, (OMB) of the Niagara Region and Niagara Falls official plans. These amendments were intended to facilitate the subdivision of both farms and natural areas into rural estates to be serviced by sceptic systems on lots with a minimum size of five acres.
3. Agricultural Designations Should be Based on Capability not Economics
While the proposed mapping exercise cannot open up large new areas to estate development, PALS is concerned that the varied economic criteria for agricultural mapping for the usual three-zone approach in rural areas may result in inappropriate shifting of designations. These are “Specialty Crop”, “Good General” and “Rural.” These standards vary as to the permitted uses the designations allow. Golf courses for instance, are not a permitted use within Specialty Crop lands. “Rural” lands also are more permissive regarding residential severances.
Determination of the type of mapping should remain, as is currently spelled out in the Provincial Policy Statement (PPS) on land capability based on soils and climate. Economic criteria such as access to markets change more readily than factors imposed by nature.
One of the most vivid examples of PALS’ experience of the centrality of soil and climate is the Chateau des Charmes Estates winery in Niagara on the Lake. During the 1970s the land which was in an urban shadow caused by close proximity to two expressways, but with excellent air drainage and soil, had been abandoned from any agricultural use. This situation changed and the winery is now one of Canada’s most prestigious agricultural operations.
4. PALS Has One Request to Correct Longstanding Error in Agricultural Designation
PALS has one specific request to modify an agricultural mapping designation through this mapping exercise. This is to designate all of the rural lands north of the Welland River, in the municipalities of Thorold and Niagara Falls as “specialty” crop lands.
The area north of the Welland River has similar capabilities in terms of soil and climate as the currently designated specialty crop lands which now extend only to Mountain Road in Niagara Falls. There is no distinctive soil and climate type bordered by this road, and there is now an estate winery located in Niagara Falls on Lundy’s Lane, right in the middle of the area we are seeking to expand the “specialty” crop designation into .
PALS Is Opposed to the Omission of Natural Heritage Areas from Urban Area
PALS understands that apart from situations where urban river valleys protected by the Greenbelt extend into urban areas, that it is proposed that the natural heritage system of the Growth Plan is not to include lands within urban boundaries. This suggestion appears to defy scientific logic. If for instance, a core area exists of 100 hectares or more in an urban area, (which is what is being proposed in Figure 2 for most of the Growth Plan area) there is no good scientific rationale why such a natural habitat should not be protected by the Natural Heritage System of the Growth Plan. Being within an urban boundary should give such lands greater protection as they are more under threat of development. Many tend to be located in zone 7E, the Carolinian life zone. It is Canada’s most important area of bio-diversity, with many rare species and habitats.
What is disturbing, is that through our participation in the now-completed review of Ontario wetland policy, which in the end rejected proposals to permit site alteration on designated PSW features, PALS became aware of where in Niagara many of these large natural areas of 100 hectares or more are located. These features, some of which are PSWs in Fort Erie and Niagara Falls, tend to be located on the fringe of the urban boundary. They are also linked to other natural areas through the Welland River and Frenchman’s Creek. Some of these PSWs, notably the Thompson Road Woodlot in Fort Erie straddling Frenchman’s Creek, buffer adjacent agriculturally- designated lands. Another PSW within urban boundaries, the Niagara Falls Slough Forest, (also known as the Thundering Waters Forest) contains important habitat for three species of endangered bats, since most of it is an old growth forest. It also provides critical habitat for vernal pool obligate species, such as the Blue Spotted Salamander, and the Gray Tree, Chorus and Wood frogs.
All the forested wetlands within the urban boundaries of Niagara Falls and Fort Erie have been found to contain breeding habitat for a Species at Risk, the Wood Thrush. This is a good indicator species to protect the imperiled natural heritage of the Growth Plan area. It requires large tracts of unbroken forest to survive. The proposed natural heritage mapping, by leaving large areas of southern Niagara within urban boundaries that would otherwise fit into its criteria for protection, out of its designations , puts this key indicator species at additional risk.
The omission of urban areas from the proposed natural heritage system appears to be compensation to the same development interests that conducted a lengthy campaign to permit offsetting of PSW lands. The negative consequences of this approach are spelled out through the facts, if not the commentary, on
Table 3 of the draft strategy methodology.
Table 3 shows that in the Growth Plan area 10 per cent of PSWs would not be protected by the proposed natural heritage mapping. In general 13 per cent of all wetlands would be left out. Eight per cent of the habitats of endangered species would be unprotected. This problem is triggered by the ignoring provincially significant woodlands in the criteria for protection through the proposed natural heritage mapping. This criterion is more inclusive of natural areas than the proposed 100 hectare minimum and does not distinguish between urban and rural areas.
5. City of Toronto’s Strong Policies to Protect Natural Areas Would Be Weakened By Proposed Mapping
Among municipalities in the Growth Plan, the City of Toronto has been a leader in developing a strong, protective natural heritage system. This system is described well by the authors, of “An Enduring Wilderness: Toronto’s Natural Parkland” Here in Appendix E, the authors note that there are 2,698 hectares protected through designated Environmentally Protected Areas (ESAs) in the City of Toronto’s official plan. This amounts to four per cent of Toronto’s land base. While most of these lands are publicly owned, the authors stress that “Some ESAs extend onto privately owned land.” These private lands are vulnerable to development through possible re-zonings.
Natural Heritage mapping for the Growth Plan should strengthen not undermine the City of Toronto’s ESA based natural heritage protection. Although the Green Belt does extend into the Toronto this is only on public lands, not private lands vulnerable to development.
Toronto’s existing natural heritage mapping protects 369 significant plant species. The term “significant” means that these native plant species are declining within Canada, or at least in the Toronto region. It also provides habitat for 128 species of breeding birds. The proposed Growth Plan natural heritage mapping puts this treasure of bio-diversity at increased risk.
6. Toronto’s Success is Both a Promise and a Warning in Terms of Bio-Diversity.
Toronto’s success in terms of developing a natural heritage system is both a promise and a warning. It is a success in that , largely through these policies and park naturalization, the Green Frog, has been able to recover some of its lost habitat in Toronto. Wildlife however, that requires more exacting, specialized, habitats, notably vernal pool obligate species, such as the Blue Spotted Salamander, Gray Tree Frog, Western Chorus Frog and Wood Frog, remain extirpated.
Despite protecting large areas in forested parklands, notably the Rouge and High Parks, the Wood Thrush has vanished as a breeding species from Toronto. Strong natural heritage mapping, which protects at least all the current areas of provincially significant woodlands, is needed to stop the disappearance of this critical indicator species from the parts of Growth Plan facing urbanization pressures underscored in Figure 2.
7. Ignored Provincially Significant Woodlands Should Provide Basis of Natural Heritage System
In the Natural Heritage mapping discussion paper there is no discussion of provincially significant woodlands. Such woodlands are for instance, omitted from features identified in Table 3, although there are important policies for their protection contained within the PPS. There is no estimate of what per cent of these woodlands form part of the proposed natural heritage mapping contained in Table 3.
PALS agrees strongly with the following passage from the Ministry of Natural Resources and Forestry, (MNRF) Natural Heritage Implementation Guidelines. This is that, “The protection of woodland cover in southern Ontario is an important concern. The loss of woodland habitat is one of the most serious threats to biological diversity.” The draft mapping proposals natural heritage for the Growth Plan do not adequately reflect this concern.
Rather than ignoring provincially significant forests, their protection, buffering and linkage should be the core of the Growth Plan’s Natural Heritage Mapping. The protection they provide is far greater than the 100 hectare core minimum size contained in the draft natural heritage strategy.
The Natural Heritage Mapping proposal for the Growth Plan describes a very different approach than that taken in MNRF’s implementation guidelines. The proposed mapping for the Growth Plan is based upon a minimum core of 500 hectares for relatively ecologically intact landscapes and a “minimum core size of 100 hectares …in areas with high levels of fragmentation and low percentage of natural cover.” In contrast MNRF’s implementation guidelines stress that, “In the absence of more complete information, the threshold should be reduced to include woodlands that would otherwise be missed. For example, where woodland cover is between 15 and 30 percent of the land base, woodlands close to 4 hectares, rather than 20 hectares should be considered significant.”
Figure 2 in the consultation document has a map of the proposed area of fragmentation where a minimum core size of 100 hectares is recommended. Based on the MNRF implementation guidelines, it would be appropriate that an area of 4 hectares was employed. For the more intact area of the Growth Plan, it appears the implementation guidelines recommend an area of 50 hectares. This is a vivid contrast to the proposed 500.
The core area minimums for the Growth Plan should reflect the criteria of MNRF’s Natural Heritage Guidelines. These are in essence, 4 hectares for fragmented landscapes, 50 hectares for others. While in areas of less than five per cent forest cover, two hectares are considered appropriate for core size, the contrast between 4 and 100, and 50 and 500, give a good sense of the great variation between the approach taken by the MNRF implementation guidelines and the proposed natural heritage mapping strategy for the Growth Plan.
The consultations need to review how successful municipalities have been in undertaking this basic requirement of the PPS to identify and link provincially significant forests. The existing policies and mapping requirements mandated by the PPS need to be clearly spelled out for the next phase of public consultation. Where their plans have failed to follow provincial policy, they should be brought into conformity through the natural heritage mapping exercise. This should involve both the identification of significant woodlands and the necessary work to encourage corridors between them.
8. Consultation Document Provides Too Optimistic Evaluation of Proposed Strategy.
A number of aspects to the proposed natural heritage strategy have given a too-optimistic perception of the impact of the proposed strategy. This is based on the assertion that outside of urban boundaries, 45 percent of the landscape is covered. This appears to be boosted by the inclusion of large water bodies, most notably Lake Simcoe. If this is so, a separate estimate should be made for terrestrial landscapes.
From observing Figure 4 it appears that the majority of the proposed mapping for natural heritage is either in the Greenbelt Plan, or in lands that form part of the Canadian Shield in Simcoe County, Kawartha Lakes and Peterborough. In other areas there appears to be large swaths of peach colored lands with minimal green shaded natural heritage mapping. One vivid instance of this appears to be the municipal boundary line between Durham Region (within the Greenbelt) and the City of Kawartha Lakes. (Outside the Greenbelt) A similar contrast appears in the boundary lines between York Region and Simcoe County.
There are also large swaths of peach colored lands with a disturbing lack of green mapping in the western areas of Wellington County, Waterloo Region and Haldimand which all appear to be devoid of heritage mapping. Since forest cover is so low in these areas, they are examples of where the minimum two hectares should be used for core area mapping purposes. If this is not properly studied in existing municipal plans a separate process needs to be undertaken as part of this process.
To understand the adequacy of the proposed mapping outside the Greenbelt a single calculation needs to be made. What is the per cent of designated provincially significant woodland outside the Greenbelt that is captured by the proposed mapping outside of the large area of forest cover of the Canadian Shield? It also should be determined if existing mapped areas in official plans for corridors are reflected in the proposed mapping.
9. Growth Plan Mapping Should Compliment Not Undermine Existing Natural Heritage Mapping in Official Plans
In summary, the regional natural heritage mapping for the Growth Plan area should strengthen, not undermine, the existing mapping for this purpose already embedded in municipal plans. In this regard two urgent steps need to be taken. Within urban areas the mapping needs to include existing protections such as identified PSWs and other natural heritage identification contained in official plans. Outside of these areas and the Greenbelt, a separate review needs to be conducted in the heavily deforested area identified in the consultation paper in Figure 2. It should be seen if all the areas mapped in existing municipal plans here are included in the proposed strategy. If these plans do not meet the minimal standards of the PPS, the mapping examination of the Growth Plan should follow its guidelines regarding significant woodlands and connecting corridors.
Both the agricultural and natural heritage mapping in the Growth Plan need to give firm direction to land use planning. Compared to the perpetuation of the rural landscape and natural heritage, other land use planning debates are trivial. Clear identification of landscapes that need protection is crucial.
Another original article by Dr. John Bacher, first published on JohnBacherPhD.ca.
Dr. John Bacher (PhD)
July 10, 2017
The Need for an Ontario Land Use Planning Board
The Preservation of Agricultural Lands Society
Dr. John Bacher
1. Province is to be Commended for Addressing Need to Reform Ontario Municipal Board (OMB)
The provincial government is to be commended for undertaking the difficult challenges of making improvements to legislation regulating the operations of the Ontario Municipal Board. (OMB) In general these reforms build on those introduced in 2005. Of these, most beneficial was the prohibition of an appeal a municipal council decision to prohibit the expansion of a human settlement area. PALS is of course pleased that this laudable reform was carried on in the proposed legislation. As expressed in our earlier comments, this needs to be further clarified. It seems strange that encroachments on designated environmental protection areas are not treated as expansions of the human settlement area.
2. PALS is Pleased with Most Proposed Changes to OMB
At the outset, PALS wishes to make it clear that we support all, with two exceptions, of the proposed changes to OMB. Changes to restrict appeals, have more transparent procedures, eliminate appeals of ministerial zoning orders, and provide financial, legal and planning support to appellants acting in the public interest in championing provincial policy are long overdue. PALS also supports the reform that instead of “good planning”, decisions of an appeal body should be based on lack of conformity to provincial policy.
PALS has been involved in the development of provincial policy since our founding in 1976. We have taken part in numerous public consultations regarding planning policies. Throughout that time our OMB appeals, most of them successful, have been provoked because of violations of provincial policy. These appeals have also become a discovery expedition into fields of provincial policy which often tend to be ignored by planners working for municipalities and the private sector.
3. PALS Believes Good Planning Means Conformity to Provincial Policy
The use of the term “good planning” by the OMB is essentially an archaism to the period before 2005 when the extent of provincial policy was much more limited than it is today. Earlier there was nothing comparable, for instance, to the 2005 Natural Heritage Implementation Guidelines, which can be if actually applied, a sound basis for good planning in both rural and urban areas. By protecting water quality these guidelines would safeguard as one of the most our most dedicated members, Jean Grandoni, has stressed, fish habitat. The protection of streams from storm water pollution due to urban sprawl which poisons aquatic life, is one of the most vivid ways in which all of our rural landscape is food lands.
One of the basic principles of the Natural Heritage Implementation Guidelines is the protection it gives to the headwaters of streams. This also should protect considerable areas of rural land from urban expansion. PALS’ has found however, that the attitudes of municipalities have made this policy a ‘dead letter’.
The challenges of protecting stream headwaters is shown by PALS’ experience in a 2014 OMB hearing regarding the Ontario Motor Speedway in Fort Erie. This was a difficult experience for us, since our proffered expert witness, Dr. Hugh Gaylor, was not permitted to give opinion evidence as a planner because of his one-year membership in PALS. More seriously however, the headwaters of Miller’s Creek were permitted to be turned into a massive parking lot, since the planning instruments were manipulated so the motor raceway was not an urban expansion but a “special policy area.”
Long after the hearing was concluded, PALS’ learnt that there is a provision for special policy areas in the Provincial Policy Statement (PPS). It has nothing to do with putting parking lots over headwaters on agriculturally zoned and designated lands. The term applies to areas which are in floodplains but are already urbanized.
Before the current guidance of provincial policy, it was understandable why the OMB had to in effect invent its own policy to ensure good planning. For many decades, even after the devastation and loss of human life in floodplains caused by Hurricane Hazel, there was no formal policy to compel zoning to prevent development on these hazardous lands. Despite formal policies that exist today however, threats to such areas persist.
4. Large Swaths of Provincial Policy Not Embedded in Municipal Plans
What is of great concern to PALS, is that while the basic concepts of good planning are well embedded in provincial policy, they are not well reflected in land use planning guidelines approved by municipalities. One disturbing aspect of this failure, is to properly protect the headwaters of streams as mandated by provincial policy. While decades old policies to protect fish habitat are slowly creeping into official plans, the same cannot be said for policies mandated by the most recent version of the PPS. These are policies to ensure adaptation and mitigation for climate change and to protect imperiled bio-diversity.
PALS’ took part recently in extensive Niagara Region public consultations in its mandated five year review of its official plan. During this period there was no discussion of the need to update the plan to implement these new policies of the PPS.
Some may suggest that for both climate change and bio-diversity, what is needed is simply to follow older policies of the PPS and protect large blocks of forested habitat and rural land from sprawl. This approach however, is inadequate. Many threatened wildlife species, have more specific habitat needs.
For instance, PALS’ has become familiar with the habitat requirements of vernal pool obligate species, such as the Western Chorus which in Ontario, is experiencing a marked population decline. Many forested areas which provided habitats for these frogs in the past, now fail to do so because of drainage. Municipal plans need to implement the new PPS plans for bio-diversity, which have been effectively shelved.
5. New Policies for Intervenor Funding Show Need for Ontario Land Use Planning Board
Given the stubborn refusal of municipalities to implement PPS policies on biodiversity and climate change, and the welcome new provisions for intervenor funding, PALS expects that many appeals will be made to what is planned to be called the Local Appeals Tribunal (LAT). The proposed new name for the tribunal however, LAT, does not give sufficient dignity to the important matters it will be adjudicating. A more appropriate one would be the Ontario Land Use Planning Board.
The term OMB has its origins before the Planning Act of 1946. For almost four decades, its adjudications based on land use planning were confined to the municipalities, (entirely urban), that had special provincial legislation to conduct land use planning. Even after the Planning Act of 1946, land use planning did not get going in predominately rural areas until the passage of the comprehensive zoning by-law of Thorold Township in 1959, when it was approved by the OMB, following appeals,. A critical role in the passage of- this by law was played the Township’s Reeve, a subsequent founder in 1976 of PALS, Mel Swart.
Swart’s success in using Planning Act controls to restrict quarries played an important role in the creation of the Aggregate Policy of the Planning Act. Subsequently, both he as an Ontario Legislator and PALS played a major role in securing the agricultural policies of the act.
PALS’ deep involvement in land use planning and the OMB shows us why an appeal tribunal should clearly have an expression of the importance of land use planning in the long- term interest of future generations in its name. This would be most clearly expressed as the Ontario Land Use Planning Board.
6. Decisions of Ontario Land Use Planning Board Should be Final
PALS’ is opposed to the proposal in the draft legislation that alterations by a provincial appeals tribunal to a municipal council land use planning decision should , if a council continues to object after ninety days, require a second hearing in order to be upheld. In this regard our views are shaped by the OMB rejection of a proposed urban boundary expansion in the City of Niagara Falls in the watershed of the Ten Mile Creek. The council of Niagara Falls even had the temerity to appeal our OMB victory to the courts, which resulted in a cost award to PALS and Jean Grandoni. This appeal by the city is illustrative of the profound contempt municipalities in Ontario have for provincial policy. If found to be in violation of policy by a provincially appointed planning board , municipalities should not have a second hearing to argue their case.
An important role in our OMB victory was played by our lawyer, David Donnelly, who acts in effect as a policy advisor to many Ontario environmental groups. He has warned that the proposed double hearing process could turn the proposed LAT into a rubber stamp for municipal councils.
The victory of PALS and Jean Grandoni at the OMB was based on a number of violations of provincial policy. Critical to the victory was the testimony given under subpoena from PALS, of Mark Christie, a senior planner with the Ministry of Municipal Affairs and Housing. (MMAH) The essence of his testimony was that the urban expansion was not needed as it has been provincial policy since the 1980s that calculations of residential land supply should be made on an upper tier, (regional) basis. In opposition to PALS, the City of Niagara Falls and the Niagara Region argued that excessive land supplies in Port Colborne and Fort Erie should not be used to prohibit an urban boundary expansion in Niagara Falls.
Christie’s expose was one of many violations of provincial policy uncovered at the hearing. One was a failure to follow the protocols of the Canada Land Inventory, which require on-site soil tests when soil mapping results are challenged. It was also demonstrated that the agricultural policy was violated by the failure to consider lands of lesser capability in southern Niagara Falls. Another was to ignore the Niagara Region’s Official Plan’s implementation of provincial policy to protect natural heritage. An onsite visit by experts of all parties confirmed that the subject lands are a deer migration corridor. It also demonstrated that a forested area contained a vernal pool, which in violation of storm water management guidelines of the province, was proposed to become a storm water pond.
7. PALS Proposals are Modest Additions to Proposed Reform Package
In conclusion, PALS wishes to stress that our two proposed legislative alterations are reasonable and modest alterations to well-intended reforms. Municipalities’ failure to respond for many years to PPS policies and more recently policies for climate change, to curtail urban expansions, and the protection of bio diversity, show the need for an Ontario Land Use Planning Board whose decisions should be final.
Another original article by Dr. John Bacher, first published by Mediacoop.ca:
The Media Co-op
June 15, 2017
Secret Peer Review of Botched Environmental Assessment
Freedom of Information Act Request Reveals Secret Peer Review of Thundering Waters Forest Development Scheme.
Dr. John Bacher
In the afternoon of July 7, 2016 in front of Niagara Falls City Hall native people and environmentalists from across Niagara gathered at a rally to call for the protection of the threatened Thundering Waters Forest. Here the Cayuga elder Alan Jamieson remarked how, “You have enough shopping centers.” in a plea to rescue the refuge. The Oneida environmental champion Karl Dockstader lamented how the planned “deforestation is an affront to the traditional indigenous leadership.”
Following the indigenous rally many protestors went to attend a public participation session held in the basement of Niagara Falls City Hall. One of the most important bits of information to be disclosed there was that a peer review was underway of the draft Environmental Impact Statement (EIS) prepared by Dougan Associates for the proponent of the Thundering Waters development, GR Canada Investments. It was revealed that the environmental consulting firm doing the report was North/South Environmental.
What is quite bizarre was that although the North/South Peer Review was completed about a week later on July 15, 2016 its contents were not released to the public until ten months later. The 14 page report remained secret until a Freedom of Information Act request was filed by Ed Smith with the provincial government. Access fees of $350 dollars were paid for by various events in August 20016, such as a fund raising concert by citizens working to rescue the Thundering Water Forest from development.
The secret report was authored by ecologist Leah Lefler. It had considerable impact in shaping the comments about the draft EIS by Ian Thornton, of the Ministry of Natural Resources and Forestry, (MNRF). However, so far no Niagara politicians have acknowledged it exists.
Thornton found North/South’s peer review to be “Very thorough”, taking a position which “closely aligns with our comments.” It informed his conclusions conveyed to the Niagara Falls City Council just before its August 23rd meeting.
Lefler’ s criticism which stressed the need to study currently unprotected wetland areas for possible expansion and conduct acoustic surveys of the mature and old growth forested habitats used by endangered roosting bats, reinforced MNRF’s own analysis. This properly guided the Niagara Falls’ Planning Department’s advice to Niagara Falls City Council to delay the Public Meeting under the Planning Act legally required for any re-zonings to take place.
While Thornton’s advice properly suspended the momentum to destroy the Thundering Waters Forest on August 23, the process should have been terminated five weeks earlier. The Planning Act meeting should have never been scheduled. The North/South peer review clearly demonstrated that the recommendations of the draft Dougan EIS were not adequate to meet the requirements of Ontario and municipal law to protect natural habitats, wetlands and wildlife.
The key clash between the Dougan reported, authored by Stephen Hill, and Lefler was the issue of the need to expand the designations of provincially significant wetlands (areas protected from development), which at the time (the designations since have been expanded), comprised only a third of the 484 acre site. Lefler argued that adjacent then unprotected wetlands “should be evaluated…to determine if they should be complexed as part of the Niagara Falls Slough Forest Wetland Complex.”
Other documents obtained by the same access request show Niagara politicians denouncing the expansion of the Niagara Falls Slough Forest Complex as apparently arbitrary. These ignored however, the reality that this was done on the basis of research mandated by the City of Niagara Falls and the Niagara Region’s own policies for peer review of EIS documents.
Lefler also clashed with Hill over the need to protect dry forests in Thundering Waters. He stressed that provincial, regional and city policies all stressed that, “Development is not generally permitted” within such areas unless “no negative impact can be demonstrated.”
Lefler found that assumptions minimal impacts could not be justified without additional research. He calculated that the development would trigger the removal of “approximately 93 hectares of natural vegetation, including wetland, woodland and meadow vegetation.” There was however, in Hill’s EIS no discussion of the possible “impacts related to the removal of features, such as changes to wetland hydrology, loss of habitat, edge impacts, etc.” Lefler discovered that there was also silence “on how the proposed land use plan will maintain the existing water balance and hydrology” in the protected wetlands. He found that with such omissions “it is impossible to determine whether or not environmental impacts will occur and to what extent they are expected to occur.”
Lefler indicated that more work needed to be done for an adequate “Assessment of Significant Wildlife Habitat.” In this regards what was especially important for the peer reviewer was the habitats of endangered bats. He urged that to protect bats “tree cavity surveys should be completed” and that “acoustic surveys be completed.”
Considerable attention in Lefler’s critique was directed towards the future destruction caused by roads and traffic. In this regards Lefler noted that road construction was proposed through parts of the otherwise protected provincially significant wetland. He found that Hill ignored “the impacts to the features and ecological function” of these wetlands “from the construction and use of the proposed road network.”
Lefler detailed how not only roads through otherwise protected wetlands, but throughout the threatened Thundering Waters Forest would have terrible consequences for wildlife. Her peer review detailed how, “Roads are a major cause of mortality to small mammals, amphibians and reptiles.” One example cited show horrific devastation in 2014 on a 250 meter segment of road brought about the deaths from collisions of most of the 1,200 amphibians who attempted to cross it. “
Another clash between Lefler and Hill took place over the issue of what is an adequate width of a buffer. Hill’s report attempted to justify a minimal 15 meter buffer. In response the peer reviewer replied that, “In general, a wider buffer will better achieve the intended functions than a narrower buffer. In our opinion, a 30m buffer is necessary when wetlands or treed wetlands become surrounded with development in order to mitigate the increased stresses with urban land uses, particularly residential development.”
Lefler went into considerable detail to innumerate the extensive threats from residential development near treed wetlands. These included “encroachment, dumping of yard waste, invasive plant spread, domestic pets preying on birds and small mammal populations” and ad-hoc trails. He also stressed that without adequate buffers trees were vulnerable to being blown down by wind.
In addition to his “major comments” Lefler added 68 “minor or editorial comments.” One was that no studies for salamanders were on within the southern half of the property. Another concerned the approach towards the endangered Chimney Swift. Studies taken on the Eastern Whip-poor-will were found not to meet species at risk protocols. He identified a failure to assess vernal pools for “Significant Wildlife Habitat for Woodland Amphibian Breeding Habitat.” The denial of the presence of breeding habitat for the endangered Acadian Flycatcher was challenged.
The most revealing of the peer reviewers minor comments relate to a vernal pool obligate species, the Gray Treefrog. Lefler caught how while Hill’s text “states that only a couple of Gray Treefrogs were detected”, Appendix F in the EIS indicated, “that a total of 6 Gray Treefrog individuals were heard calling, which is more than a couple.”
The missing four male Gray Treegfrogs illustrate a broader problem with the Thundering Water’s scheme than even Lefler was able to capture through his stinging rebuke. While driving around the perimeter of the threatened forest, Adrin Willems and I on the evening of June 12, 2017 were able to hear around two hundred individuals give their short flute like trills. This symphony at risk is a treasure beyond the abilities of the best peer reviewer to capture.