Local planning process highlights need for co-operation among all levels of government

By Kerrie Blaise, Simon Jutras and Maria Lelie-Hekkert

Law360 Canada (February 27, 2023, 11:02 AM EST) --
Kerrie Blaise
Kerrie Blaise
Simon Jutras
Simon Jutras
Maria Lelie-Hekkert
Maria Lelie-Hekkert
Concerns about the generational and environmental impacts of a proposed gold mining project in northeastern Ontario dominated public meetings last week, in communities near Kirkland Lake, Ont.

In response to a zoning bylaw amendment (ZBA) request submitted by mining giant Agnico Eagle, the town councils of Larder Lake and Gauthier held public meetings, as required by the provincial Planning Act, to consider whether to rezone lands to permit an aggregate operation and advanced mineral exploration activities. These preliminary activities are part of a much larger development, known as the Upper Beaver Gold Project, where the mining company is proposing to operate an open pit gold mine and mill, divert a major river in the region and permanently store 13 million tonnes of tailings on the shores of Beaverhouse Lake. Taken together, these activities present a high likelihood of cumulative impacts to the region’s waterways and lands.

The threshold issue before the town councils in considering the ZBA, is whether it conforms or conflicts with the Provincial Policy Statement, 2020 (PPS), the Growth Plan for Northern Ontario, the townships official plans and existing zoning bylaws. Given the interplay between these land use policy instruments, there is not a single unified approval test; instead, there are a multitude of requirements to consider and factors to weigh. As the PPS mandates, all relevant policies must be considered by the planning authority in reaching a decision.

Before a determination on the ZBA can be made, the Planning Act recognizes the town council “shall ensure that … sufficient information and material is made available” to the public (s. 34(12)(a)(i)). This provision, requiring sufficient information to enable public understanding, builds on a core purpose of the Planning Act which is to “provide for planning processes that are fair by making them open, accessible, timely and efficient” (s. 1.1).

The lack of sufficient information provided by the mining company was called into question by many community members participating in the public meetings, and a key concern to local non-profit, Misema-Blanche River Alliance (MBRA). Presenting before both town councils, they raised concerns that Agnico Eagle’s ZBA application did not include studies designed to fulfil requirements of land use planning law, and instead recycled studies from prior years that were developed for other purposes, like provincial approval or permitting processes.

Among the gaps in studies, as set out by the MBRA, were unaddressed concerns about potential adverse impacts to nearby water bodies; the potential for cumulative effects of the project in combination with existing and future mining activities in the region; and adverse impacts from construction and heavy vehicle activity, including noise and public safety risks. These concerns are not out of step with the PPS which recognizes the need to protect natural features in the longer term, safeguard ecological functions and biodiversity and ensure land use compatibility (ss. 2.1.1, 2.1.2, 1.2.6).

The MBRA also highlighted the lack of rehabilitation planning accompanying the aggregate pit proposal, which goes against requirements in the PPS specific to rehabilitation standards (ss. and By virtue of the development being on private lands, outside the designated area where the provincial Aggregate Resources Act automatically applies, the MBRA argued the townships had an even greater responsibility to ensure sufficient environmental oversight, including the mitigation of negative impacts.

As the town councils deliberate on the ZBAs, the mining company is concurrently seeking a number of provincial mineral exploration permits, with public comments being invited until March 8. The project as a whole is also undergoing a federal impact assessment (IA), which will assess the project’s 16-year operating life, the diversion of nearly 100 million cubic metres of water into the Misema River, the potential transfer of ore from other mines for processing at the Upper Beaver site, and the eventual abandonment of the underground and open pit gold and copper mine.

As the MBRA reminded the town councils, they have the authority to advance the hallmarks of good planning which as reflected in the PPS, stress the importance of creating and maintaining healthy communities in healthy environments, supported by a sustainable economy. They can also choose not to make a decision until the more comprehensive and robust assessment processes like the federal IA have concluded. Proponents too can play a part in advancing environmental co-operation and volunteer for the provincial Environmental Assessment Act (s 3.0.1) to apply to their project, thus setting the stage for co-operation among provincial and federal processes and enabling further opportunities for public participation.

Kerrie Blaise is an environmental lawyer practising in Northern Ontario. Simon Jutras and Maria Lelie-Hekkert are founding members of the Misema-Blanche River Alliance.  

The opinions expressed are those of the author and do not reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

Photo credit / rusak ISTOCKPHOTO.COM

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