Hearing date for challenge of Caledon’s moratorium on new quarries set for early September

Following a case management conference held last week, the Ontario Land Tribunal set a three-day hearing date, beginning September 4, to debate the matter of the Town of Caledon’s extension of its Interim Control Bylaw which prevents new quarry applications from moving forward.

In October 2022, the Town of Caledon unanimously passed the ICBL on new aggregate operations within the Town’s borders following the release of a study, commissioned by the Forks of the Credit Preservation Group (FCPG) and undertaken by the Top Ten Aggregate Producing Municipalities of Ontario (TAPMO), which concluded Caledon was dead last, of 10 municipalities, for its aggregate policies based on a cumulative score quantifying nine criteria: air quality, blasting, cumulative effects, First Nations consultation, haul routes, hydrogeological impacts, natural heritage disruption, noise and surface water issues.

Under the Planning Act, the ICBL was in place for one year, expiring in October 2023. Unable to complete the necessary studies and reviews to update its aggregate policies in the one-year time frame, in October, council unanimously voted to extend the ICBL for an additional year.

At the time of the ICBL extension, council was notified by staff that the decision could be appealed under the Planning Act. Despite this possibility, staff urged council to make the decision as the time it would take to secure a hearing at the OLT, if an appeal was filed, could still be used to rigorously update the Town’s policies which would still hold weight on any aggregate application.

Staff and councillors remained confident that their position, seeking to introduce better controls over the gravel industry, would be successful, pitting the Town against one of Ontario’s aggregate giants — a questionable assumption based on the decisions made in various OLT decisions in the past. An investigation undertaken by the Hamilton Spectator analyzed all rulings made by the OLT between January and mid-August of 2022. Of the 178 decisions, 172 were in favour of the private-sector applicant trying to push a project, with the municipality or public entity winning just six times. 

Aggregate operators are usually successful at the Ontario Land Tribunal.

(Alexis Wright/The Pointer)

On November 4, that fate was challenged when Canadian Building Materials (CBM), a division of St. Marys Cement and under the Brazillian parent company Votorantim Cimentos, filed an appeal to the OLT.

After a pre-merit hearing scheduled to discuss administrative matters surrounding the case, a hearing has been scheduled for September 4 to 6, agreed upon by the applicant, CBM, and the defendant, the Town of Caledon, as well as the single intervenor on the case.

CBM Aggregates operates 60 pit and quarry licenses across Ontario. The company has considerable interest in the Town’s ICBL given its application for the 800-acre blasting quarry in the hamlet of Cataract, about a 10 minute drive from the intersection of Highway 10 and Highway 24.

The proposal from CBM Aggregates looks to transform approximately 262 hectares of Caledon countryside in the area of Charleston Sideroad and Main Street/Regional Road 136 into a blasting quarry. If completed, CBM estimates it could extract 2.5 million tonnes of aggregate from the site annually over the next 40 years, through a process that would involve blasting beneath the water table. 

The company submitted its application to the Town in December, and following the submission of all of the necessary documents and studies, the application was deemed complete on March 23. 

Despite provisions under the Planning Act, which allow the Town to take up to 120 days to make a decision on the application, after which the applicant can file an appeal, Town staff previously informed the community and The Pointer that these decisions often take more than 120 days and, while there is the possibility for an appeal, Caledon is not concerned with taking its time to ensure the application is evaluated properly. 

Many residents believed the temporary bylaw, which acts as a moratorium on new aggregate applications until policies to protect residents and natural spaces across the Town can be approved, could stop the CBM development. It will now be up to the Ontario Land Tribunal, which rules on such disputes, to decide. 

“Essentially these bylaws prohibit development activity to allow the municipality to conduct a land use study, examine planning issues and establish appropriate planning policies and zoning,” a staff report from October pointed out. 

ICBLs are tools used by municipalities to press pause on development to allow for further study. In this case, councillors wanted more time to analyze how to better manage their aggregate resources moving forward and conduct a review of aggregate policies along with the Region of Peel.

While an ICBL restricts land usage, it cannot restrict applications. Under the Planning Act, the Town must continue to accept and process new applications, but it does not guarantee approval just because an application is received.

Aggregate applications often take years to consider. One Hillsburgh pit expansion took eight years. Ultimately, what comes out of the ICBL will do little to restrict CBM from developing the quarry directly, but it will provide the Town the opportunity to update its policies to ensure that aggregate operations are more sustainable and align with public interests.

Canadian Building Materials has an application with the Town of Caledon to transform 800-acres of prime agricultural land into a mega quarry.

(Alexis Wright/The Pointer)

In 2023 when the application was submitted, David Hanratty, director of land, resource and environment at Votorantim Cimentos North America, told The Pointer the company wanted to avoid the OLT at all costs, but that changed when the Town decided to extend the ICBL.

“When the Town formally identified those lands for extraction in their Official Plan through their [Caledon High Potential mineral Aggregate Resource Area] study in the late 1990s/early 2000s, the Province required the Town to make best use of the identified resources, namely through the development of a quarry,” Hanratty told The Pointer in November. “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.”

Kim Mullin, legal counsel for CBM, said on Monday that even if a hearing could not happen until after the expiration of the bylaw — in October — her clients were still interested in proceeding with the challenge. The Pointer reached out to both Mullin and Hanratty asking what a challenge so close to, or after, the expiration would achieve. Neither have responded.

The Town of Caledon, represented by Chris Bennett, and the sole intervenor, the Forks of the Credit Preservation Group (FCPG) — which has led community opposition to pits and quarries — represented by one of Canada’s leading environmental lawyers, David Donnelley, will make the case for waiting until new policies are approved, before allowing giant quarry projects to move forward.

The FCPG has assumed significant responsibility, retaining experts in various fields to complete their own analysis of the application studies submitted by CBM — most notably hiring an air quality expert who concluded it is highly improbable that, with the quarry in operation, levels of particulate matter in the area will conform to Ministry standards.

David Donnelley spoke to the Forks of the Credit Preservation Group and Caledon community on the ICBL in April 2023.

(Alexis Wright/The Pointer)

The community group has also pressured the Town to fulfill its promise to update its old policies.

“I do this for a living, organizing experts and producing studies, they take more than six months,” Donnelley said halfway through the first year of the ICBL. “It's possible this will get done, but once those studies are completed, they have to be passed for public consultation, it has to go back to council, it has to have staff recommendation that has to come up for a vote. We are on an incredibly short timeline here.”

David Sylvester, president of the FCPG and a member of Caledon’s Aggregate Resources Community Working Group (ARC), has delegated to council several times since the implementation of the original ICBL, and its extension, pleading with the Town to work more efficiently.

“We really haven't heard that much at all, which for me has been rather puzzling and mystifying because I thought that our interests were aligned,” Sylvester said in a delegation in January. “I mean, who wouldn't want to see Caledon’s aggregate policies updated and strengthened?”

The ARC group was constructed to bring community experience to the policy review process. But instead of being involved, working group members have expressed to The Pointer, and publicly, that they are just being used to tick the public consultation box and have had very little input in a process that has been far from transparent.

“I think they're still just placating us. [The project manager] in that meeting called us a focus group,” Cheryl Connors, another member of the ARC Working Group, told The Pointer. “And I think that just says everything about the process, that they really aren't interested at all in us actually coming up with policy ideas for them.”

Jane Thompson, an ARC working group member and an environmental lawyer with over 30 years of experience, said in January that premature policies were being put forward, and input was asked for afterward. 

“The cart is not before the horse. The cart doesn’t even have a horse,” she said.

Fed up, Connors told The Pointer the Working Group plans to meet itself and discuss whether the six community members wish to proceed or resign in the face of the Town’s handling of the process to design policies that appear to already have been created, without any input from the actual experts on the working group.

She said the planning consultant hired by the Town, Mark Dorfman, has already written the new aggregate policies (currently in draft form) which she says are weaker than what they started with. The Pointer has not seen the draft policies.

At the time of the ICBL extension, Town staff updated the timeline for when each portion of the aggregate resources review would be complete. Under the current schedule, the review is anticipated to be complete by June.

Under the Planning Act, there is a provision that allows for policies established under an ICBL to be applied to new applications — in normal circumstances, applications are analyzed based on the policies in place at the time the application was deemed complete. The new policies are supposed to be in place before a decision is made on the ICBL extension by the OLT.

Residents have questioned whether the Town intends to follow its own timeline, to have the new policies in place, before any OLT decision, and before final approval of the mega quarry is granted.

The Town did not respond to The Pointer’s request for comment on whether it is following the timeline and whether the updated aggregate policies will be complete prior to the OLT hearing.

Email: [email protected]

Twitter: @rachelnadia_

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