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Singing for the Salamander

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For the past three months, my dedicated lawyer David Donnelly, Protecting Escarpment Rural Land ("PERL"), and I have been trying to obtain a Ministry of Natural Resources (MNR) biologist's written opinion on whether a quarry company's mitigation plan would protect the breeding ponds and wetlands of the Federally Endangered Jefferson Salamanders that are on our family farm.

On March 27, 2012, I was compelled to appeal an absurd decision of the MNR to deny my earlier Freedom of Information (FOI) request for this opinion.

Only a few hundred metres away from these ultra-sensitive and ostensibly "protected" breeding ponds is the site of the proposed Nelson Aggregate Co. below-water-table quarry, which would very likely undermine the hydrogeology of the entire area, including the Grindstone Creek Headwaters Provincially Significant Wetland Complex. If the water goes away, so do the salamanders (the Jeffies, as they are affectionately known).

Our farm, atop the Niagara Escarpment's Mount Nemo in North Burlington, is part of a UNESCO World Biosphere Reserve. It is one of only 27 Jefferson Salamander habitats left in Ontario, indeed in all of Canada. Clearly this is the wrong place for a massive extraction industry.

But Nelson Aggregate Co. didn't even bother to ask us if they could come on our property to monitor the wetlands if the quarry gets approved. PERL's expert biologist Dave Stephenson is skeptical that a professional MNR Species-at-Risk biologist would have sufficient confidence in a mitigation strategy when access to the ponds has not been sought and is so uncertain.

What if the MNR biologist still has concerns? Shouldn't the joint board reviewing this quarry licence application hear them?

In their FOI decision of March 6, the MNR did show a record of the information we had requested, but decided to deny me access to it on the basis that "disclosure of the record would reveal recommendations of a public servant." When I read those words I thought, "How ironic to hide information from someone who is called a servant of the public." In the next few months I'll find out if Ontario's Information and Privacy Commissioner agrees with me: MNR bureaucrats should not be overriding the public interest and hiding information critical to the protection of an endangered species. Just as importantly, a government agency should not be having private meetings with a corporation to review remediation plans for other people's property without extending to the landowner the same participatory rights.

Seven years ago, citizens of the Mount Nemo area formed PERL, a community group that has represented the interests of the community and sponsored crucial science about what is at risk on Mount Nemo. After incredible amounts of volunteer work and dedication, these citizens, including my family, should not be in this position now: The MNR could have disclosed at the hearing the biologist's opinion without all this wasted time and energy. We filed a Motion to Disclose this evidence during the hearing, and I swore an affidavit stating how critical this evidence was to our case. When our motion was denied, our legal team had to file the FOI, involving more precious time and resources.

When this FOI request was just recently denied, I had to engage lawyer Alexandra Mayeski, an FOI appeal legal expert and, coincidently, a childhood schoolmate and neighbour whom I rode the school bus with as a kid. Synchronicity at work.

The story goes like this. PERL has been fighting the proposed Nelson Aggregate Co. quarry on Mount Nemo since 2005. For years, the MNR agreed with PERL that the Significant Woodlands, Threatened and endangered species habitats, Provincially Significant Wetlands, source water hydrogeology, and prime agricultural lands on the proposed site added up to a big negative for the quarry proposal. The Region of Halton, City of Burlington, Halton Region Conservation Authority and the Niagara Escarpment Commission all opposed the quarry too.

So did important allies like Environmental Defence, Lake Ontario Waterkeeper, David Suzuki Foundation, Coalition on the Niagara Escarpment (CONE) and many others.

Then, on the first day of the Joint Board Hearing, the MNR did an about-face and supported the quarry! Starting on November 19, 2010, the Joint Board Hearing heard evidence from dozens of experts from all the public agencies listed above, and experts from PERL. We all opposed the quarry proposal and provided testimony to the same.

But what of the independent MNR experts who had filed witness statements critical of the project? We decided to summons them, to cross-examine them on whether it was experts or policy "suits" that decided to do a "180" and support the quarry in this clearly inappropriate location.

One of the experts that was summoned was John Pisapio, species-at-risk biologist for the MNR. He's also on the Jefferson Salamander Recovery Team. At the time of his testimony, Nelson had no clear strategy for protecting the wetlands and breeding ponds on my family farm if something went wrong with the quarry. For example, if, as predicted by experts, the under-draining of the whole area lowered the water table so that the water in the wetlands leaked out from underneath and the wetlands dried up.

Pisapio's evidence at the hearing in October, 2011 was pretty devastating to the proposal -- he testified he had concerns about the inadequate monitoring and mitigation measures proposed in Nelson's Adaptive Management Plan (AMP) for the Harmer Wetlands and the Jefferson salamanders in particular.

This was a blockbuster moment!

Did Nelson and the MNR call PERL and my family to talk about what to do next? No.

Instead, MNR staff collaborated with Nelson to come up with a new mitigation plan involving the wetlands on our property without consulting me or my family. Nelson now says they'll install gauges (monitors) and run pipes onto our property, if the ponds go dry. Right, we're supposed to trust Nelson after they transplanted and subsequently killed endangered butternut trees, dredged and drained wetlands, and were convicted of illegally placing fill in the Grindstone Creek Provincially Significant Wetland Complex? I don't think so.

A very telling part of the situation is this: the planning expert for Nelson, Brian Zeman, testified at the hearing that when MNR officials were discussing the new Jefferson mitigation plan, he was the one who was the minute-taker. Separation between corporate interest and our own government has never been more difficult for me to discern.

Thankfully, the law may be on our side. Even if the Information and Privacy Commissioner says the biologist's opinion qualifies as being protected from disclosure, we can argue that the records are subject to the compelling public interest override provision under Section 23 of Ontario's Freedom of Information and Protection of Privacy Act. Since the records we're seeking relate to mitigation strategies for the Harmer Wetlands known to contain a provincially Endangered Species, this fits with previous Orders of the Information and Privacy Commissioner's Office that have recognized that the public has an interest, from the perspective of protecting the natural environment and protecting health and safety, in seeing that government institutions conduct a full and fair assessment before granting environmental approvals, including approvals under the Aggregate Resources Act.

Do we really need to wait months for this decision? C'mon Premier McGuinty, play fair! Give us the damn biologist's opinion.