Aggregate (sand, gravel, stone) extraction is among the most controversial and heavily regulated industries in Ontario. Necessary to build all infrastructure in the province, it is grossly underappreciated by the public.
The industry is governed by a hodgepodge of legislation: the Aggregate Resources Act (ARA), the Ontario Water Resources Act, the Environmental Protection Act, the Endangered Species Act, the Federal Fisheries Act, the Provincial Policy Statement and the Growth Plan. It is further subject to a maze of complex rules, policies and procedures.
Licencing Approvals Process
An operator cannot operate a pit or quarry without first securing a licence from the Minister of Natural Resources and Forestry (the "Ministry"). The terms and conditions of that licence will depend on a number of factors, including whether the extraction is above or below the water table, whether the extraction is on private or public land and what quantum of aggregate is proposed to be extracted. There are 15 categories of licences.
The process of obtaining a licence can take years and involves a comprehensive process of consultation with the local community and, where applicable, First Nations. It requires the production, and peer review, of environmental, noise, traffic, dust and water reports. Applications for local planning permissions (official plan and zoning by-law amendments) are often required. It engages a myriad of commenting authorities including municipalities, the Ministry and Conservation Authorities.
A crucial piece of this process is the negotiation of the terms of the site plan for the pit or quarry (or the expansion of the same). The site plan addresses issues of impact mitigation, hours of operation, community contact and rehabilitation once the extraction process has finished. This can be arduous. Development agreements with the local municipality are often required as a condition of achieving a licence or planning permission.
Once the process of consultation and reporting has concluded, and objections remain from nearby residents or relevant authorities, the Ministry will determine whether to refer the application to the Local Planning Appeal Tribunal (LPAT) for a hearing. The hearing may also consider LPAT appeals related to the applications for the local planning permissions.
Factors determined whether a licence will be issued
The matters to be considered in issuing a licence are listed under s. 12 of the Aggregate Resources Act. The categories, designed to protect the public interest from any adverse impacts, are broad and subject to considerable interpretation. For this reason, it is important to engage one of our lawyers early on to help guide the application successfully through the process. As an example of a successful intervention, DSF lawyers were at the forefront of seeking amendments to the ARA to prohibit municipalities from demanding fees from aggregate operators to pay for road maintenance and repairs. This has resulted in significant cost savings for existing and future clients.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.