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Water Today Title December 11, 2017

Lakeridge Citizens vs Earthworx
The aerodrome 'loophole'

Part 4 - Aerodrome 'loophole' fails - Fill can be regulated - 5/18/11
Part 4 - Temporary Injunction Granted - 3/14/11
Part 3 - Ian McLaurin, Lakeridge Citizens for Clean Water - 2/16/11
Part 2 - Josh Garfinkel, Sr Campaigner, Earthroots- 2/15/11
Part 1 - John Tidball, lawyer for Earthworx - 2/14/11
Soil and fill, some of it contaminated with heavy metals and petroleum hydrocarbons, has been dumped into a former gravel pit at the height of the Oak Ridges Moraine. Growing concerns among residents about possible water contamination prompted the Township of Scugog to pull the dumping permit last October. But the company involved, Earthworx Industries, has ignored the decision. It says it is not subject to the municipality's rules because it is building an aerodrome, which is regulated by Transport Canada. The township is going to Superior Court to set a date for an injunction hearing; Earthworx wants to argue in Divisional Court that the township does not have jurisdiction.

Location Map : Oak Ridges Moraine, Ontario

Part 5- UPDATE - 5/18/11

Aerodrome 'loophole' fails

On May 18, Divisional Court judges ruled that ‘inter-jurisdictional immunity does not prevent the application of the fill by-laws’. In so doing, they ruled against 2241960 ONTARIO Inc.’s argument that its self-designation as an aerodrome site rendered inapplicable the local municipality's regulations on the dumping of fill. The company, which operates under the name of Earthworx Industries, had unsuccessfully argued before the three Divisional Court judges in the Superior Court of Ontario on April 4, 2011 that because they will filling in an old gravel pit to build an aerodrome, it was under federal jurisdiction, and therefore, the by-laws of the Township of Scugog were not applicable.

Earthworx had been at odds with local residents since last May when it began dumping soil from old industrial sites into a rehabilitated gravel pit at 13471 Lakeridge Road in an area of aquifer vulnerability at the height of the Oak Ridges Moraine. Last October when the township ordered Earthworx to stop dumping, the company erected a sign "This is a federal aerodrome - municipal & provincial bylaws do not apply to aerodromes & airports".

In their decision against Earthworx, and for the Township of Scugog, the judges stated that Earthworx "...is engaged in the commercial activity of a landfill site. Moreover, the record calls into serious question the sincerity of the avowed intention to build a runway and an aerodrome." They also state, that even if it could be proven they were building an aerodrome, "...the doctrine of interjurisdictional immunity does not prevent the application of the fill by-laws..." in that they "...merely regulate the manner in which the site alteration is performed."

[text of the decision will be available at http://www.canlii.org/en/on/onscdc/nav/date/2011_05.html ] Ian McLaurin,spokesman for the Lakeridge Citizens for Clean Water, expressed his satisfaction with the ruling. "We had been very concerned that if the decision had gone the other way many unregulatable fill sites would have sprung up under the guise of aerodromes." Many former gravel pits in an arc around Toronto are operating as commercial fill sites accepting soils from old industrial lands with varying degrees of contamination.

The Ministry of the Environment has ordered Earthworx to conduct soil and water monitoring at the fill site which is located in an Area of High Aquifer Vulnerability making the local residents concerned about pollution of their drinking water wells. The aquifers of the Oak Ridges Moraine flow to the north and south supplying water to a significant portion of southern Ontario. Earthworx has appealed MOE's order to monitor their site with the preliminary hearing before the Environmental Review Tribunal taking place June 1 in Port Perry.

Part 4- UPDATE - 3/14/11

Temporary injunction granted

Scugog Township received a decision today that a temporary injunction was being granted to stop Earthworx Industries from dumping fill at 13471 Lakeridge Road in Scugog Township to the northeast of Toronto. Since May of 2010 Earthworx had been dumping soil from excavations and old industrial lands in the GTA into a rehabilitated gravel pit within a protected area of the Oak Ridges Moraine despite the expiry of their fill permit and findings of contaminated soil.

The aerodrome 'loophole'
On Friday March 11, Earthworx (2241960 Ontario Inc.) unsuccessfully argued before Justice Whitaker in Superior Court that the temporary injunction should not be granted because Scugog's by-law was invalid as it interfered with their ability to build an aerodrome, which would be under federal jurisdiction. Daron Earthy of Loopstra Nixon, the lawyer for Scugog, successfully argued that by-laws cannot be ignored simply because the violator claims they are constitutionally inapplicable. The question is to whether the fill is or is not an essential element of aeronautics and thus under federal jurisdiction and not subject to provincial or municipal regulation will be heard when the two parties appear in Divisional Court on April 4.

Environmental regulations gap
Spokesperson Ian McLaurin for the Lakeridge Citizens for Clean Water declares, "This is an important battle that has been won but there is still the aerodrome issue to be settled and in the longer term the gap in the environmental regulations must be filled."

This case is being closely monitored by STORM, The Council of Canadians, and Earthroots as it highlights a gap in the environmental regulations whereby municipalities are responsible for managing the dumping of clean fill without a definition of what constitutes "clean" and without the resources to effectively monitor for "cleanliness". The Lakeridge Citizens for Clean Water has been informing municipalities in the area about the risks of commercial fill operations. The municipalities outside of Toronto have seen a rapid increase of the dumping of fill in their old gravel pits since the introduction a few years ago of Ontario's brownfield legislation which provides for the clean up of old industrial sites by, amongst other methods, removal to other locations.

Part 3- Q&A - Ian McLaurin - Lakeridge Citizens for Clean Water - 2/16/11

Can you briefly bring us up to date as to where the case stands now; MOE environmental assessment, Scugog injunction; soil monitoring, Transport Canada, Police Action, etc

The environmental assessment study is still at the stage of collecting samples - we saw a drill rig there on Monday. The Scugog and Earthworx will be in court March 11 for the injunction. Other than the Durham Regional Police supporting MTO and Scugog in a truck blitz in January, I don't know of any other police action. We got a good story in the Toronto Star Monday 14th. The dumping is continuing.

You are quoted as saying" This process of using an aerodrome designation to run a commercial fill operation in an environmentally sensitive area should be a concern to anyone in Canada". In your view, is the main issue at stake here misrepresentation, or are there also jurisdictional concerns at play here?

The main issue for us is the federal jurisdiction of an aerodrome, which is well supported by recent Supreme Court Decisions, can cause provincial and municipal officials, who may not be aware that the federal jurisdiction is limited to only the aeronautical aspects, to not enforce their own regulations for the non-aeronautical portions, such as the fill in the case. The standard advice from Transport Canada has been for the municipality to consult lawyers, and small municipalities are not likely to have those resources.

Does the term 'aerodrome' have more significance under constitutional law than another designation?

Anyone can create an aerodrome with minimal effort, such as installing a wind sock. It does not even have to be registered with Transport Canada and need not comply with local zoning in most cases Only about 1/3 are registered with Transport Canada. However, any aerodrome becomes federal jurisdiction because it is aeronautical. Aeronautics is federal jurisdiction. For example, municipal building permits are not enforceable for hangers but they may be for a hanger attached to a house. The distinction between "aerodrome" and "airport" is that an aerodrome is anywhere where aircraft land while an airport has much more infrastructure and meets Transport Canada specifications and inspections. for more info: http://www.copanational.org/files/COPAGuidetoPrivateAerodromes.pdf

One of Lakeridge's documents," Dumping in Defiance" states that Earthworx is not a good corporate citizen and that one of their VP was charged under drugs and firearms charges. While these comments serve to discredit the company do they also carry legal significance ?

We would be less concerned if the company had a record of being a good corporate citizen and had a good reputation that they would want to protect now and in the years ahead.

There have been conflicting results in soil testing done in the area, with Earthworx results favouring their position; could there be any question of unbiased testing involved here? How do you interpert the conflicting results?

The firms involved in the sample testing are reputable firms and there are checks and balances in place. For example, in environment assessment tests, each testing sample is split in half, with one part going to the company and the other to Ontario's MOE. Also, remember, these tests are conducted at the lower end of detectability where results are more open to differing interpretations.

Other than stopping the dumping on this land, what would be the best outcome to this issue in a more general context?

If the dumping here is not stopped, and even if it is, we would be pleased to hear that the environmental assessment finds that groundwater will not be contaminated by the fill. We would also like to see this current hole in the suite of environmental regulations, filled with provincial law and municipal by-laws on commercial fill operations, and until that time, a moratorium on commercial fill operations in the Oak Ridges Moraine.

Part 2- Q&A - Earthroots- Josh Garfinkel - 2/15/11

I am trying to get a handle on the jurisdictional aspect of this case. You are quoted in Toronto Star as believing that "it reveals the loopholes that exist in the laws governing fill dumping and protection of the moraine." Can you elaborate on this?

There is no comprehensive overview or provincial regulation that specifically tracks, assesses and enforces the movement and disposal of of all of this fill, regulating fill operations is left to respective municipalities

Many municipalities are increasingly concerned about the time and cost of court-initiated proceedings to resolve illegal fill operations. Expecting municipalities to sufficiently monitor and assess the disposal of fill in an effective way is both unfair and unrealistic, as municipalities do not have the resources to be dealing with this critical issue. We are urging the provincial government to assemble an inter-ministerial task force, drawing on experts from the Ministry of the Environment, the Ministry of Natural Resources, and Ministry of Municipal Affairs and Housing, to create provincial legislation to better regulate commercial fill operations.

The issues in Lakeridge is now underlining just how vulnerable our water is. The Oak Ridges Moraine Conservation Plan purports to place hydrological integrity as one of its guiding principles. This assertion becomes hollow, when you consider the number of land-uses that are allowed to take place on this vital land-form, that place significant strain on our vital water resources.

What is your take on this whole aerodrome context?

Because Earthworx decided to build an airstrip on this site, they are arguing that they do not need to comply with municipal by-laws or provincial legislation. A recent Supreme Court ruling has unfortunately clouded interpretation regarding whether or not "aerodromes", like the Lakeridge operation, need to comply with provincial and municipal by-laws. There is growing concern that landowners may try and get their sites designated as "aerodromes", allowing them to possibly by-pass municipal by-laws.

It is essential that the provincial government puts and end to the assertion that fill operators with "aerodrome" designations do not have to comply with municipal by-laws.

When it comes to testing,if two labs test soil and the results are different how does one get at which one is the truth?

I would say that we need to give validity to both results. What is essential is that more testing is done, and in order to ensure that groundwater is not contaminated, we need to employe the precautionary principle.

Can you explain what you mean by precautionary principle?

In the absence of scientific consensus regarding the safety of the drinking water, and considering the risk of causing harm to key environmental features and to the public, it is critical that more comprehensive testing is conducted. The risk of contamination is far too severe to reach any substantive conclusions about the soil, based on random, selective tests done on soil samples.

Soil testing done by the two opposing parties in this dispute came out with different results? Can you tell us which two companies did the soil testing ?

I am not sure what the answer is. You should check out the Lakeridge Citizens for Clean Water website- that info may be up there.

Part 1 - Q&A - Earthworx Lawyer - John Tidball, Environmental Law, Miller Thomson - 2/14/11

As Earthworx lawyer, you state that the company does not need a dumping permit because they are building an aerodrome, which is regulated by Transport Canada. Transport Minister Chuck Strahl says the province should have jurisdiction over the fill operation if it isn’t integral to aeronautics. The mayor cannot stop the dumping and needs an injunction. Earthroots says it reveals the loopholes that exist in the laws governing fill dumping. Please clarify how you see the jurisdiction in this case?

The issue is the extent of federal jurisdiction over aeronautics as a matter of constitutional law. The case law in this area, up to and including two Supreme Court of Canada cases decided late last year, favours a broad scope of authority for the federal government in relation to aeronautics. In this case, the owners are already operating an aerodrome at the site, in the form of a heliport. They wish to develop the property to build a 2300' runway. They need to import fill to raise the grades of the site to build the runway. We see that as a matter of aeronautics, and therefore falling under exclusive federal jurisdiction.

In a case where jurisdiction is disputed like this one, what can someone do? to whom does one ask for an injunction. we always hear the injunction word but what is it and how does one go about it? Can you tell us what an aerodrome is?

It is ultimately up to the courts to determine the issue. There are a number of ways to get a court to do this, and three of them are in play right now. First, the Township is prosecuting Earthworx for operating with out a permit. The defence will be that no permit is necessary because of the constitutional issue. This will require the Provincial Offences Court to rule on the issue. Second, the Township is seeking an Order from the Superior Court that the site stop receiving fill. It has filed a motion in that proceeding for an interim injunction pending trial of the matter. Third, the Divisional Court has been asked by Earthworx to rule on the applicability of the Township Site Alteration By-law to the fill operation. This is referred to as a judicial review.

When it comes to testing, if two labs test soil and the results are different how does on get at which one is the truth?

I am not sure what you mean by "truth". Lab results can vary, even when the same material is re-analyzed by the same lab.

Are there places where people can go find out all this jurisdiction stuff for free? An mp or city hall? Where does someone build a case to even hire a lawyer on this?

There are lots of books in the library on the division of powers in the Constitution Act (formerly the BNA Act).

Off the record, can you tell us which two companies did the conflicting soil testing ?

I am not sure what you are asking. Sites that need to find a home for excavated fill deliver soil reports to Earthworx to demonstrate the quality of the material. The testing can be done by any number of consulting firms. Typically the laboratory analysis of soil samples is done by another company. Earthworx gives the information to it own consultant, who reviews it and recommends whether it can be received at the site. Earthworx's consultant also takes audit samples and sends them to an outside lab for analysis. Earthworx has recently hired a separate environmental consultant to undertake an assessment of what has already been filled. A large number of samples were taken in accordance with MOE sampling protocols and sent to an outside lab for analysis. The results will be incorporated into an environmental site assessment report, which will also report on groundwater conditions from 4 newly-installed monitoring wells. The Township of Scugog hired a consultant to take samples on 2 occasions. Those samples were sent to an outside lab for analysis. The MOE also takes samples of incoming fill on a regular basis. Those samples are sent for analysis at the MOE lab in Rexdale.

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