The Importance of Having Legal Counsel for your Aggregate Extraction Licence Aggregate (sand, gravel, stone) extraction is one of the most controversial and heavily regulated industries in Ontario. Necessary to build infrastructure in the province, it is often misunderstood and underappreciated. The industry is governed by a complicated web of legislation and policies: the Aggregate Resources Act (the “ARA”), the Ontario Water Resources Act, the Environmental Protection Act, the Endangered Species Act, the Federal Fisheries Act, the Planning Act, the Provincial Policy Statement and, in some cases, the Growth Plan. It is further subject to a complex set of rules and procedures. Licensing Approval Process An operator cannot operate a pit or quarry without first securing a licence from the Minister of Natural Resources and Forestry (the “Ministry”). The terms and conditions of the licence will depend on a number of factors, including whether the extraction is above or below the water table, whether the extraction is on private or public land and how much aggregate is proposed to be extracted. There are 15 categories of licences. The process of obtaining a licence can take years and involves a process of comprehensive consultation with the local community and, where applicable, First Nations. It generally requires the production, and peer review, of environmental, noise, traffic, dust and water reports. Applications for local planning permissions (official plan and zoning by-law amendments) are often required. It engages a number of agencies, including municipalities, the Ministry and Conservation Authorities. A crucial part of the process is the negotiation of the terms of the site plan which sets out the requirements under which the pit or quarry will operate, outline what must be done to mitigate potential adverse impacts and what must be done to rehabilitate the site once the extraction process has finished. It may also be necessary to enter into agreements with the local municipality are often required as a condition of achieving a licence or planning permission. Often an application will need to be considered by the Local Planning Appeal Tribunal, a court-like body that will hear evidence, consider objections to a licence and decide whether it should be issued. Factors which determine if a licence will be issued The general factors to be considered in issuing a licence are listed under s. 12 of the ARA. These factors, designed to protect the public interest, are broad and subject to considerable interpretation. As a result, it is important to engage a lawyer early on to help guide the application successfully through the process. As an example of a successful intervention, DSF lawyers were at the forefront of seeking amendments to the ARA to prohibit municipalities from demanding fees from aggregate operators to pay for road maintenance and repairs. This has resulted in significant cost savings for existing and future clients. The Importance of Experience DSF Lawyers in Aggregate Approvals A successful licence application requires a keen understanding of the applicable law, sound planning and solid execution. Our experienced lawyers at DSF are ready to help you. David White is a leading lawyer in the area, having had notable success in securing licences and planning approvals for a wide variety of extraction proposals, including those which faced strong municipal and local opposition. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Planning and Development LawSeptember 29, 2020April 3, 2024
Indigenous Consultation and the Aggregate Licensing Process The duty to consult and to accommodate indigenous peoples can arise at any time in the aggregate licensing process. The failure to properly address the duty will not only cost time and money, but it will also damage relationships with indigenous communities, lead to a rejected licence application or the loss of an already-issued licence in circumstances in which the court finds that the duty has not been fulfilled (Saugeen First Nation v Ontario (MNRF), 2017 ONSC 3456). Its Source and Scope The duty to consult and to accommodate is part of the fundamental law of Canada, imposed by s.35 (l) the Constitution. It overrides federal as well as provincial law and affects private rights in the property, including land on which pits and quarries operate or on which they are intended to be operated. The duty arises “when the Crown has the knowledge, real or constructive, of the potential existence of the aboriginal right or title and contemplates conduct that might adversely affect it.”[1] The threshold is relatively low; a credible claim suffices. Once triggered, the scope of the duty is on a spectrum and depends on the nature and strength of the rights in question and the seriousness of the potential impact on them. On the low end, the duty may include notice to the affected communities and information about the pit or quarry in question. At the higher end, the communities could be part of the decision-making process. What It Means There is no duty to come to an agreement nor do indigenous communities have a veto. That said, the Crown must act honourably and consultation must be meaningful, not simply perfunctory. Technically, the duty is not imposed on aggregate operators although, practically speaking, the Crown can delegate “procedural” aspects of it to others. In this respect, an operator may be required to deal directly with the relevant communities to notify them of the proposed project, provide them with information, fund some aspect of their participation in consultation, and modify the project to accommodate any concerns. It is, however, the Crown, not the operator, which has the duty and must assess whether it has been fulfilled, subject, of course, to a constitutional review by a court, if challenged. What happens if the consultation is insufficient? Everything can go wrong: a proposed project can be derailed, delayed, and, in some cases, effectively be stopped in its tracks. Dealing with it properly is, effectively, not only the right thing to do, but it is the cost of doing business. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Planning and Development LawSeptember 10, 2020April 15, 2024
Ontario Stone, Sand & Gravel Association Expresses Support For Aggregate Approval Process The Ontario Stone, Sand & Gravel Association (“OSSGA”) has recently written to the Honourable Doug Ford, premier of Ontario, to state that the Premier should not interfere in the licensing and approval process for pits and quarries in the Province [1]. OSSGA did so in response to alarming comments made by the premier about preventing, at any cost, the licensing of a quarry in the Milton area. Comments here. The aggregate industry is vital to Ontario. The stone, sand and gravel which it supplies are used to build homes, schools, libraries, colleges, universities, hospitals, fire and police stations, as well as to construct roads, highways, water and sewer infrastructure, public transportation systems, workplaces, recreational and social centres, arenas and stadiums. We all contribute to the need for aggregates and we all benefit from the activities of the industry which extracts them. Aggregates are to be extracted as close to market as possible to ensure an economical supply of material with shorter truck trips. This also significantly lowers overall emissions. The industry creates jobs, generates vital revenue for local governments and operates under strict regulations. To balance the interests of all stakeholders and to protect the public, the licensing and operation of pits and quarries are subject to the requirements of the Aggregate Resources Act, the Planning Act and 23 other pieces of legislation and hundreds of regulations. The process also involves consultation with First Nations, the scrutiny of provincial government ministries, the review of local planning authorities and governments, the examination of the community, and, often, a hearing in front of the Local Planning Appeal Tribunal. The process is a careful, deliberative, and rigorous one. It takes years and a wide array of technical and expert reports, including environmental studies, to complete. At the end of the life of a pit or quarry, the land must be rehabilitated, which adds green space to the Province. The aggregate licensing system in Ontario represents a solid, safe and sustainable approach to bringing vital material to the market. It should not be undermined by political considerations. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Construction Law, Planning and Development LawAugust 10, 2020July 5, 2023
