Hanlon Creek Business Park Stand Off
Court Report, City Of Guelph Request For An Injunction
by Bob Gordon, Freelance Journalist and Member of the Guelph Mercury Community Editorial Board
Yesterday’s injunction hearing, in front of Justice Gray, between The City of Guelph and the occupants of the Hanlon Creek Business Park site was complex and confusing at its outset.
The applicants for the original injunction, The City of Guelph, wanted the occupants (the respondents) removed from the site of the proposed Hanlon Creek Business Park. However, the occupants had also applied for an injunction to enjoin the city (the respondents in this matter) to cease work on the site, specifically the construction of a culvert to channel tributary A of the Hanlon Creek under the proposed Road A on the site. At the same time, the city is seeking $5 million in damages from the occupants for alleged crimes including nuisance, mischief, intimidation, extortion and inducing breech of contract.
After listening to arguments, Justice Gray decided not to bifurcate the matters before him.
Consequently, the occupants were variously referred to as respondents, applicants and defendants while the city was referred to as the applicant, the respondent and the plaintiff throughout the day.
For the sake of clarity throughout this report, the terms “occupants ” and “the city” will be used.
For the six days prior to yesterday’s hearing both parties were bound by an interim injunction of Justice Wein delivered on Tuesday, August 4. That interim injunction enjoined both parties to undertake no new construction and permitted the occupants to remain on the site in a defined camping area and to use the laneway running from the camp site to Downey Rd, the western boundary of the proposed site of the Hanlon Creek Business Park.
The morning session of the hearing yesterday was dedicated to the city’s injunction application. The afternoon session addressed the occupants’ injunction application.
Representing the city, Michael Bordin, presented what he claimed was a very straightforward case. The city had met all of the concerns raised by the Ministry of Natural Resources, the Grand River Conservation Authority, the Ontario Municipal Board, the city’s own Environmental Advisory Committee and those contained in the Environmental Impact Report. Further, the occupation was contrary to the Trespass to Property Act as the city was the ultimate steward and owner of the site, and controlled by democratically elected politicians. Therefore, he concluded that the occupants had a political issue not a legal one.
Representing the occupants of the site, Eric Gillespie, quickly undermined the assertion that the case was simple. Arguing that the city had a long history of permitting public access to the land, Gillespie argued that the city is a “creature of statute” and should have passed a by-law declaring the property closed to public access. He cited the case of the dispute over the Red Hill Valley Expressway in which the City of Hamilton passed such a by-law in its efforts to remove occupants prior to commencing construction. He asserted tht the City of Guelph had been remiss in not doing so.
Jefferson salamander (photo: John White)
He also cited concerns raised in an affidavit before the court by Dr Jim Bogart, an expert in the Jefferson salamander stating, “in his professional opinion… additional surveying should be undertaken” to determine whether the Jefferson salamander is or is not present. The Jefferson salamander is protected under both the federal Species at Risk Act and the provincial Endangered Species Act.
He also argued that the Ministry of Natural Resources having not issued a stop work order could not, necessarily be construed as supporting the project particularly in light of letters from the Ministry to the city citing their concerns.
Subsequently, Ian Hagman, Guelph District Manger of the Ministry of Natural Resources was called to testify. During examination by Bordin, Hegman agreed that the Ministry had not issued a stop work order. However, during cross-examination it was revealed that the Ministry could not issue a stop work order as rules surrounding the Jefferson salamander and its habitat remained recommendations rather than regulations as they had not yet been passed into law by the provincial legislature. He further stated that the Ministry has had and continues to have concerns about the city’s plans to proceed with a road over tributary A of the Hanlon Creek.
When the hearing moved to the occupant’s injunction application, Bordin objected to the occupants even being granted standing before the court. The judge responded that he was unwilling to rule on that matter and that Gillespie could “at least get to first base” and present his arguments.
He proceeded to argue that the city’s plans to proceed with work on the site raised the issue of ‘irreparable harm’ as long as the absence of the Jefferson salamander was unconfirmed and issues of destruction of its habitat were up in the air. He also cited a case involving Meares Island in which the court ruled that construction constituted destruction of evidence suggesting that construction of the culvert and potential destruction of habitat could render future attempts to confirm the presence of the Jefferson salamander meaningless.
The ‘precautionary principle was also introduced by Gillespie. The precautionary principle, upheld by the Supreme Court, holds that in environmental disputes, where there is the potential for damage to habitat or species, the concerned parties should always act to err on the site of caution. He argued that in the case before this court this meant that work had to be stopped until the relevant agency, the Ministry of Natural Resources, and the expert, Dr. Bogart, could assure the court that proceeding would present no harm to the Jefferson salamander or its habitat. The bottom lines became, the precautionary principle and the Jefferson salamander
When the city avowed that it had always acted in good faith and cooperated with all regulatory agencies and stakeholders Gillespie responded aggressively. He noted that the city had begun construction of the culvert on July 6, three weeks before it even had a response from the Ministry of Natural Resources. He also asserted that the city had had the response from the Ministry expressing concerns about construction before the August 4 hearing but had not entered it into evidence.
In summation, Bordin proposed a quid pro quo: The occupants be ordered to leave the site and the city be enjoined to undertake no new construction pending further discussions with the Ministry of Natural Resources. Gillespie argued for the status quo. He argued that the existing injunction was working fine as evidenced by the fact that neither side had raised issues of its violation and proposed that it be extended until the end of September. He also concede that the occupants would be willing to leave the site if work was halted.
Justice Gray, in his ruling, chose a middle course. He chose to extend the existing interim injunction, with one additional condition- that the city be permitted to remove the obstructions from the laneway from Downey Rd and repair any other damage to it–until he renders a written decision on Friday, August 14.
Presently, the occupants remain on site and construction remains at a standstill. The day’s events were aptly summed up by CTV Kitchener reporter, Joel Bowey, “the city took the protesters to court, and it may be the court that gives the protesters, and not the city, what they want.”
Bob Gordon
bob34g@gmail.com
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Weird Numbers Part 3: Minimizing Environmental Impact or Buffers, Who Needs them?
Posted in Commentary, tagged Bob Gordon, City of Guelph, Hanlon Creek Business Park on April 22, 2010| Leave a Comment »
Weird Numbers Part 3: Minimizing Environmental Impact or Buffers, Who Needs Them?
Bob Gordon, Freelance Journalist/Royal City Rag Contributor
Bob Gordon
In the summer of 2005 the Grand River Conservation Area (GRCA) issued a document entitled, “Environmental Impact Study Guidelines and Submission Standards for Wetlands”
Not surprisingly the document contained an Appendix detailing “Buffer and Setback Guidelines”.
It defined buffers in this way: “ Buffers are planned and managed strips of naturally vegetated land located between wetlands and development sites, which are intended to protect the wetland and sustain its identified ecological functions.”
It defines setbacks as follows:
“Setback refers to the physical separation (measured in metres) between the wetland and the proposed development site or structure. Impacts generally expected of development can often be avoided or mitigated if a very broad area of land is maintained in a naturally vegetated state or as green space.”
The document further states that, “The scientific literature (Woodward and Rock 1995, Castelle et al. 1994) dealing with buffer functions consistently recommends a minimum buffer width of 15-30 metres on slopes less than 12 percent with good ground cover to protect wetlands under most circumstances.”
However, in a qualifying paragraph that merits quotation in full the document notes that minimum buffers may be suitable for protection of water quality but are rarely adequate for the protection of wildlife and wildlife habitat:
“Buffers in excess of 30 metres may be warranted to protect environmentally sensitive bogs and fens or wetlands harbouring locally, regionally, or provincially significant species. Based on current knowledge, the literature increasingly indicates that larger buffer requirements tend to be associated with the habitat requirements of wildlife, especially those species inhabiting marshes (Environment Canada 2004). Therefore, minimum buffer widths based on water quality parametres alone are unlikely to be sufficient for wildlife protection.”
The bottom line is that a minimum buffer of 30 metres of naturally vegetated land is essential.
Hanlon Creek Downstream In The Spring (Photo: Bob Gordon)
The naturally vegetated land buffer surrounding the Provincially Significant Wetland Known as the Hanlon Creek Wetland Complex in the parlance of the Ministry of Natural Resources is a mere 5 metres.
The municipal administration justifies this less than minimal buffer by arguing that it is only storm water management facilities and service roads that are located within 30 metres of the Provincially Significant Wetland Known as the Hanlon Creek Wetland Complex.
Surprise, surprise but the GRCA’s “Environmental Impact Study Guidelines and Submission Standards for Wetlands” document specifically warns against locating stormwater management facilities within buffers for four very significant reasons:
The conclusion is simple, no matter what the city and its hired guns (consultants) tell us there are four good reasons that five is not better than thirty and that even thirty is frequently inadequate.
It is painful and disturbing to consider the inevitable chain of events.
So what happens if the city constructs the Hanlon Creek Business Park with inadequate buffers?
So much for the City of Guelph’s insistence that they have carefully considered the environmental impact of the development, and planned accordingly.
Bob Gordon
bob34g@gmail.com
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