MNRF District Planner Appears Under Summons: Pointes OMB Hearing

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Marjorie Hall, District Planner with the Ministry of Natural Resources and Forestry, appeared before the Pointes OMB hearing today to provide her expert clarification in regards to the 2014 Provincial Policy Statement and its application when paired with other planning documents and reference material.

Of her appearance the OMB Chairman, Blair Taylor, welcomed her saying, “Thank you for coming. I know you appear under summons but I want to express the appreciation of the Board for you coming forward. I requested you come forward as a friend of the Board. I was looking for your assistance with regard to this matter. We are going to be in the 2014 PPS and the Natural Heritage Reference Manual and there have been changes since the 2005 PPS. That’s going to be the subject of some submissions in the course of this hearing. This hearing is important to a lot of people. So the Board wants to get the best possible advice and evidence so that we can make a solid, sound and legal decision.”

As noted in previous pieces published in the Northern Hoot on the Pointes OMB Hearing and more broadly, the lengthy saga between the developer and the parties opposing the development, the 2014 version of the Provincial Policy Statement is to be used as the guiding document and a key document that will inform the OMB Chairman’s final decision.

The five key points – the most salient points at least, from her testimony this morning are as follows:

  1. The wetland on the property for development is a coastal wetland.
  2. The 2014 PPS removed the concept of ‘significance’ when considering coastal wetlands.
  3. Coastal wetlands, as per the 2014 PPS, now fall under the natural heritage feature or natural heritage system subsection in the Natural Heritage Reference Manual.
  4. The 2010 Natural Heritage Reference Manual is the guiding document.
  5. The MNR can provide technical support in decision making but it is ultimately the Planning Authority that must authorize discretion as to what information they require to make a confident decision that there will be negative impact on the natural features or ecological functions of a wetland.

Below is a transcript, in part, of this morning’s presentation made by Hall. Excerpts of questioning by Orlando Rosa, Counsel for the developer, Helen Scott, Counsel for Pointes Protection Association and Blair Taylor, OMB Chairman are provided below.

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Orlando Rose/Marjorie Hall

R: Can you tell me in so far as the MNRF is concerned, how this wetland is considered?

H: The MNR considers this wetland as a coastal wetland.

R: Is the definition of the significance rating given previously- that being that it is not a provincially significant wetland- is that something that extends to it not being a provincially coastal wetland?

H: Correct. It is not a provincially significant wetland.

R: In terms of whether it is a wetland or a coastal wetland- is it the same testing or scoring process as followed by the MNRF.

H: Yes. We follow the Ontario Wetlands Evaluation System and that system applies to an inland wetland and a coastal wetland.

R: Ok let’s come back to the natural heritage systems and features. I think your evidence is that you look to wetlands as being a subset of what constitutes a subset of what constitutes natural heritage features. Am I wrong in saying that?

H: No. It would be considered a natural heritage feature and area under the PPS.

R: In so far as the wetlands are concerned in regard to that- would this wetland situated on the proposed development –would that be considered a significant natural heritage feature?

H: A significant?

R: Significant.

H: A significant natural feature? No. Because the results of the evaluation determined that it was not significant.

R: In terms of that evaluation which was done in 2010 and which was accepted of the MNRF-does that have a bearing on whether the MNRF now considers- or at least is that used in its consideration as to whether or not these lands, which are subject to development, bear any significant natural heritage features or a part of a significant natural heritage system?

H: MNRF doesn’t have criteria associated with ‘significance’ around natural heritage features or systems. I’m sorry, could you repeat that questions again?

R: I asked it in the terms of significance that there was an evaluation made by the MNRF- a determination made that this is not provincially significant- that follows that it’s not a provincially significant coastal wetland. Now does this mean, based on that determination, that this land is the subject of this development, has limited natural heritage features or has limited natural heritage systems.

H: No. Taking out the concept of ‘significant’ the province in the PPS made coastal wetlands a natural feature in the area that require…

R: If you go to 2.1.5 in the PPS which speaks to development of coastal wetlands in ecoregion 5E- it will not be permitted unless it can be demonstrated that there will be no damage on their natural features or ecological functions.

H: Correct.

R: You’re not here to evaluate the impacts. We’ve left that to others. I want to ask a few questions about the Natural Heritage Manual- it’s in regard to the 2005 PPS?

H: Correct. R: There isn’t one that has been issued or provided for the 2014 PPS yet?

H: No.

R: Ok.

Chairman: So this is the one that everyone is using now?

H: Yes. However it is still MNR’s best available technical recommendations. And we still utilize it.

Chairman: So this is the document that we should be referring to?

H: This is the document that MNR would refer to.

Chairman: Thank you. That is one of the most fundamental points that we needed to establish.

R: Sir, I don’t think I have any more questions.

*****

Helen Scott/Marjorie Hall

S: If I could take you back to the PPS of 2014 on page 22. Policy 2.1.5 and Mr. Rosa just took you through to the place where you identified the coastal wetland…I’d like to talk to you about the last section- ‘unless it has been demonstrated that there shall be no negative impacts on their natural features or ecological functions’. Are you able to give us any further explanation or definition as to how we should interpret that sentence?

H: No not – the sentence as written is the sentence as written per the Provincial Policy Statement. However the MNR, does refer to our Natural Heritage Reference Manual to provide technical advice and recommendations should we be asked and in…. (inaudible)…to how that should be implemented.

S:My understanding, this is at page 118, of the Natural Heritage Reference Manual …(inaudible)

H:Yes. That is the section that I would direct the Planning Authority.

S: And when you’re looking at this is there anything whether we look at this wetland specifically as to whether there is a negative impact or do we look more broadly than that?

H: So within the context of assessing impacts it is up to professional discretion as to how far abroad you look. So for example if there’s linkages, if there’s connecting areas.

S: Ok. So if you’re in a situation where you’ve got a negative impact to the wetland itself, whether that is loss of habitat, loss of vegetation, loss of wetland function- do you then balance that against – the evidence that we heard was along the lines of a question of -if there is negative impact to a specific wetland are we allowed to that being a small wetland in the grand scheme of things. Does that make a difference or is the negative impact on the specific wetland that we’re looking at?

H: It is ultimately the Planning Authority’s determination with respect to what information they require they need to make a determination in regards to – what information they require to make sure that they are confident that there will be no negative impact on the natural features or ecological functions.

S: Can we can take out half of or all of a wetland and say that there is no negative impact because we have lots more wetlands?

H: That’s outside of my area of expertise.

S: Ok. Those are all my questions.

*****

OMB Chairman/Marjorie Hall

(With specific reference the Natural Heritage Reference Manual)

Chairman: On the second paragraph it states that ‘the PPS definition does not state that all impacts are negative nor does it preclude the use of mitigation to prevent, modify or alleviate the impacts to the significant natural heritage feature’.  And so do I understand from that that mitigation is something that you take into account?

H: According to mitigations, recommendations can be taken into account and a determination made of negative or not….(inaudible)

Chairman: Now if I take you to page 127- 13.5.2.7, Assessing Potential Negative Impacts. Do I read this in light of the preamble of 13.2 which again is dealing with significant natural features?

H: I feel like I should qualify in so much as –at the time the Natural Heritage Reference Manual was written the [2005] PPS only had reference to ‘significant natural features’ in those sections- that’s why the term ‘significance’ is incorporated throughout section 13 of the Natural Heritage Reference Manual. However, given the addition of ‘coastal wetlands’ as an area of provincial interest and defined as… (inaudible)… the content of section 13 is the MNR best available recommendation…(trails off, inaudible).

Chairman: Ok. I understand that. I presume at some point in time the PPS 2014 only came into effect in April 2014, so I presume at some point the Ministry is going to work through this reference manual and get a new reference manual. I’m guessing. We’re working with this because it is the best available documentation at this present time.

H: Correct.

*****

The Pointes OMB Hearing resumes tomorrow morning at 9:30 am at the Civic Centre.

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