Aggregate giant taking Caledon to land tribunal over looming blasting quarry battle
CBM Aggregates, one of the most prominent gravel producers in Ontario, has notified the Town of Caledon it will appeal to the Ontario Land Tribunal seeking a decision that would override a local bylaw that has placed new aggregate operations in the Town on hold until the fall of 2024.
CBM, a subsidiary of the Brazilian aggregate giant Votorantim Cimentos, is proposing to construct an 800-acre blasting quarry within the Town’s borders, adjacent to the village of Cataract.
The multinational giant and some of its subsidiary companies have a checkered past, with a history of legal challenges over widespread environmental violations and charges of price fixing.
An interim control bylaw (ICBL) passed by Town council has halted approval of new aggregate operations until October of next year, a grace period municipal staff have said is critical to allow updates to the municipality’s outdated policies which have failed to control the sand and gravel industry’s rapacious use of valuable land across some of the GTA’s most ecologically vital areas. It adds an average of 5,000 acres of land for extraction across Ontario each year.
First approved in 2022, council members voted unanimously to extend the ICBL at the end of September after staff were unable to complete all of the necessary studies within its aggregate policy review before the end of the original ICBL deadline.
“This is not a sprint, it’s a marathon,” Antonietta Minichillo, former director of planning and chief planner at the Town, previously told the Caledon community.
David Hanratty, director of land, resource and environment at Votorantim Cimentos North America previously told The Pointer the company wanted to avoid a hearing before the OLT at all costs. However, following the extension of the bylaw, which once again prevented the company from moving forward with its plan, his stance has changed.
The company’s statements on its reason for the appeal will likely be repeated when the matter is eventually brought before the backlogged OLT.
“The extension of the ICBL is an attempt to obstruct the province’s capacity to build more sustainable homes and infrastructure to meet the needs of a growing population, including in the Town of Caledon,” Hanratty said.
The OLT website, which helps manage active appeals, shows approximately 1,640 cases working their way through some level of the appeal process. The fight over the bylaw will also be a preview of the inevitable showdown at the OLT over the proposed blasting quarry itself—some council members have indicated they will not support the project. The current appeal will only deal with the extension of Caledon’s bylaw, not the merits of the proposed quarry.
The aggregate industry has quickly hopped on the back of the PC government’s aggressive development agenda, using the mandate to build 1.5 million homes and projects like Highway 413 as supporting justification to expand and open new aggregate operations. While the Doug Ford government has been forced to backtrack on much of its Greenbelt development and is currently walking back its forced expansion of municipal urban boundaries, it has renewed its support for Highway 413, an approximately 60-kilometre stretch of six-lane 400-series highway between Milton and Vaughan, running through Caledon and Brampton. If an ongoing review by the federal government does not halt the expansive transportation project, mountains of aggregate resources will be needed to build the controversial highway which is slated to run right through some of Ontario’s most valuable farmland.
The argument that more aggregate operations are needed to support Ontario’s accelerated development is misleading, critics point out. Existing aggregate operations in Ontario are licensed to extract 13 times more gravel than what Ontario actually consumes on an annual basis. The annual consumption of aggregate in the province has actually declined over the last 20 years, despite Ontario’s population increasing by 3 million residents over that time. According to data from The Ontario Aggregate Resources Corporation (TOARC), between 2001 and 2011, the annual consumption of gravel was approximately 168 million tonnes. Between 2011 and 2021 that number decreased to 157 million tonnes.
Hanratty suggests the Town is “disregarding” that it previously designated the lands currently proposed for the mega-blasting quarry for aggregate operations. While high-level mapping suggests the lands outside Cataract could contain aggregate resources and the Town’s Official Plan states the area should be considered for such operations, the lands are not currently zoned for aggregate extraction.
Land use designations in Caledon.
(Region of Peel/Rachel Morgan/The Pointer)
The first step in the process of developing the quarry is receiving an Official Plan and zoning bylaw amendment to rezone the lands for the intended purposes. Section 34 of the Planning Act puts authority in council’s hands to make this redesignation. Currently, the sites of the proposed CBM blasting quarry are classified as General Agricultural Area, Rural Lands and Environmental Policy Area — slated for agricultural use, food growth, and small accompanying structures. In December, an application was submitted to the Town of Caledon requesting the lands be rezoned and classified as Extractive Industrial Area-B and Environmental Policy Area.
“CBM located the proposed application in this location because the Town of Caledon, upon completing years of study, had formally identified and protected this specific area for quarry development,” Hanratty said. “Accordingly, and to meet growing demand, CBM invested years and significant resources in developing the land the way the Town had intended in its Official Plan.”
The Region of Peel and the Town of Caledon are responsible for identifying high potential mineral aggregate resource areas (HPMARA) to determine where aggregate resources lie. This mapping exercise can help inform land designations under the Official Plan. However, just because a plot of land is identified within the HPMARA mapping, does not mean it will be approved for aggregate operations.
In one case involving James Dick Construction Limited (JDCL), a quarry was proposed in the southwest corner of Caledon in the 2000s. After 13 years of relentless activism by community members, the Ontario Land Tribunal decided to not allow the quarry, ruling the company was unable to prove there would be no “unacceptable impacts” to the surrounding community.
HPMARA mapping is constantly updated by the Region and the Town. The process is complex and not always accurate. While CBM’s lands are located within the designated areas — Hanratty noted they were added as HPMARA lands in the late 90s or early 2000s — this does not automatically give its proposed quarry the stamp of approval.
The Town of Caledon is listed as one of the top 10 Aggregate Producing Municipalities in Ontario. (Alexis Wright/The Pointer)
Even if CBM makes a case before the OLT that the aggregate is necessary to fuel Ontario’s coming growth, and Caledon must allow it under its own Official Plan—overriding the ICBL—the reality is the company already has the winning cards. The legislative deck is heavily stacked against Caledon and local opposition forces like the Forks of the Credit Preservation Group.
The OLT, formerly the Ontario Municipal Board, heavily favours the development industry.
An investigation by the Hamilton Spectator in September 2022 found that, of the 178 decisions handed down by the appeal tribunal between January and mid-August 2022, 172 were in favour of the applicant trying to push a project, with the municipality or public entity succeeding just six times.
The 97-percent success rate of developers and other private companies at the OLT is directly connected to the various legislative changes made by Ford and his PC government that have eroded the control of municipalities over their own planning processes, weakened conservation authorities and pushed accelerated growth targets on cities, towns and regions across the province to supercharge development.
Changes made by the PC government to Ontario’s land-use appeals infrastructure also mean the case could be heard by an adjudicator with next to no experience dealing with the aggregate industry or professional land-use planning.
Bill 245, the Accelerating Access to Justice Act, was tabled by Attorney General Doug Downey in 2021, and later passed by the PC majority.
It amalgamated the five former land-use review bodies into a singular entity, the OLT, to create a more “efficient and effective” system. Consolidation of the Conservation Review Board, Environmental Review Tribunal (ERT), Local Planning Appeal Tribunal (LPAT) and Mining and Lands Tribunal eliminated the specialization of legal experts, meaning an adjudicator ruling on an aggregate case, formerly overseen by the Mining and Lands Tribunal, may have no experience with similar cases in the industry. Dozens of lawyers spoke against the Act for its degrading of previously protected public safeguards and its weakening of environmental protections.
In late 2022, the PCs introduced Bill 23, shocking environmental organizations, municipalities and many residents with its ambitious goal of building 1.5 million new homes by 2031. But buried in the fine print, Bill 23 also passed changes to the OLT, allowing a more streamlined construction process. These changes have yet to come into effect, but include increasing powers to order costs against the losing party in any OLT case, power to dismiss appeals for undue delay and new authority granted to the Attorney General to set the process around the scheduling of hearings which are supposed to be open to the public.
The CBM mega-blasting quarry proposal has brought together a large segment of the Caledon community to fight for stronger aggregate policies.
(Rachel Morgan/The Pointer)
It remains unclear if the appeal of Caledon’s bylaw will even reach a resolution at the OLT before it expires in 10 months, raising questions about the motivations for such a move by CBM.
The OLT proceedings can be expensive for municipalities, and community groups who wish to obtain party status at the hearing to ensure their voices are heard. This can involve hiring lawyers, commissioning studies and reports, and other legal expenses that are often well out of reach for small community groups, but well within the budget of a billion dollar company like Votorantim Cimentos. Its move sends a message to council members and community groups, who have consolidated opposition to the project, and is in stark contrast to the image CBM has tried to portray. Its spokespeople have described it as a member of the Caledon community, calling local residents “neighbours” and referring to the town as “our community”. CBM is based in Toronto. Votorantim Cimentos is based in Brazil.
Caledon is also not the only municipality CBM is fighting at the OLT. The company is currently appealing a decision by the Town of North Dumfries to oppose the expansion of a gravel pit in that area.
Despite having the odds stacked against them, Town staff and some members of council have said they believe Caledon could be successful in the appeal.
“I think the idea of supporting even an appeal would probably be successful on our point because we are continuing to do the work,” Ward 4 Councillor Nick DeBoer stressed at the September Planning and Development Committee meeting when the ICBL was extended, and an appeal was discussed as a possible outcome. Staff also assured council members that the Town was prepared for this fight.
An email to The Pointer confirmed that staff can continue to work on updating the aggregate policies during the appeal process and any changes that take place up until the time of the hearing will be applied to the CBM application.
“At this time, the OLT has not yet scheduled any hearing dates in the matter, and if there is a hearing it will determine if Council was correct to extend the ICBL, not the results of the aggregate policy study,” a spokesperson for the Town said.
The question that remains is whether the Town will have sufficient time to complete its studies prior to the scheduling of a hearing.
The draft schedule for the remainder of the Town of Caledon’s Aggregate Resources Policy Study.
(Town of Caledon)
In an update provided last week, staff told council it expects the Supplementary Aggregate Resources Policy study to be completed around June 2024.
“We will work through this as quickly as we can,” Carmen Caruso, interim director of planning, told council members last week. “As far as timing goes, I can’t give you a definite time right now, but we’re working through this.”
The vague response came after community members have watched staff repeatedly fail to meet deadlines for the study and review. At the end of the first year of the ICBL, the Town was unable to complete its ambitious goals, which was no surprise. Six months into the process, barely any progress had been made. Extending the ICBL has given the Town a second chance, one that is now being challenged at the OLT.
The Town has hired a planning consultant who is working with the Aggregate Resources Community Working Group — a group of six appointed community members — and staff to complete the review. Staff are currently in Phase 2 of the three-step process and have completed a background report, Indigenous consultation, a draft recommendation report and draft policies. Caruso told council that once the policies are complete, the Town will be hiring a slate of technical experts to conduct peer reviews, an approach that was not welcomed by residents who felt the technical experts should be involved in the policy development from the beginning, not after the fact.
“That isn’t going to be sufficient. We need technical experts to formulate and develop the policies based on the science. Then, if it seems appropriate, those policies could be subject to peer review,” David Sylvester, president of the Forks of the Credit Preservation Group which has been fighting the CBM quarry, said to council members last week. “But there is nobody on this [Aggregate Resources Community Working Group], including the planning consultant, who has anything close to adequate technical expertise to properly formulate the aggregate policies.”
“Without the technical expertise, we simply are not going to reach that goal.”
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