The Mining and Lands Commissioner

Le Commissaire aux mines et aux terres

File No: CA 007-00

H. Dianne Sutter
Deputy Mining and Lands Commissioner

Friday, the 11th day of May, 2001

In the matter of

An appeal to the Mining and Lands Commissioner under Section 28 (15) of the Conservation Authorities Act against the refusal to grant permission for development through the placing of fill on Lot 20, Concession 9, Township of Central Frontenac (formerly Kennebec Township), Permit Application 122/00.

Between

Ross Baker
Appellant

and

Quinte Conservation Association
Respondent

Order

Whereas an appeal to the Minister of Natural Resources was received by this tribunal on the 2nd day of November, 2000, having been assigned to the Mining and Lands Commissioner (the "tribunal ") by virtue of Revised Ontario Regulation 795/90;

And whereas a hearing was held in this matter on Thursday, March 1st, 2000 in the Courtroom of this tribunal, 700 Bay Street, 24th floor, in the City of Toronto, in the Province of Ontario;

Upon hearing from the parties and reading the documentation filed:

  1. This tribunal orders that the appeal from the refusal of Quinte Conservation Association through the Napanee Region Conservation Authority Watershed Advisory Board to grant permission for the construction of an extension of an airstrip through the floodplain and provincially significant wetlands within the Kennebec Watershed by the placement of fill on part of Lot 20, Concession 9, Township of Central Frontenac (formerly Kennebec Township) be and is hereby refused.
  2. This tribunal further orders that no costs shall be payable by either party to this appeal.

Dated this 11th day of May, 2001.

Original signed by H. Dianne Sutter
Deputy Mining and Lands Commissioner

The Mining and Lands Commissioner in the matter of the Conservation Authorities Act

File No: CA 007-00

H. Dianne Sutter
Deputy Mining and Lands Commissioner

Friday, the 11th day of May, 2001

In the matter of

An appeal to the Mining and Lands Commissioner under Section 28 (15) of the Conservation Authorities Act against the refusal to grant permission for development through the placing of fill on Lot 20, Concession 9, Township of Central Frontenac (formerly Kennebec Township), Permit Application 122/00.

Between

Ross Baker
Appellant

and

Quinte Conservation Association
Respondent

Reasons

The matter was heard in the Court Room of the tribunal, 24th Floor, 700 Bay Street, Toronto, Ontario on Thursday, March 1, 2001.

Appearances

Mr. Ross Baker - appeared in his own behalf
Mr. David DeMille- Counsel for the Respondent

Opening comments

This appeal came before the Mining and Lands Commissioner pursuant to subsection 28 (15) of the Conservation Authorities Act whereby:

A person who has been refused permission or who objects to conditions imposed on a permission may, within 30 days of receiving the reasons under subsection (14), appeal to the Minister who may
(a) refuse the appeal
or
(b) grant the permission, with or without conditions.

The appellant followed the proper procedure with regard to this appeal.

The Mining and Lands Commissioner and/or the Deputy Mining and Lands Commissioners have been assigned the authoritative powers and duties to hear the appeal pursuant to subsection 6 (1) and clause 6 (6) (b) of the Ministry of Natural Resources Act (R.S.O. 1990, c. M. 31) and Ontario Regulation 571/00. By virtue of subsection 6 (7) of the Act, the proceedings are governed by Part VI of the Mining Act with necessary modifications. Pursuant to clause 113 (a) of the Mining Act, these proceedings are considered to be a hearing de novo.

In addition, the principles outlined in the Statutory Powers Procedure Act apply to the hearing.

Background

Mr. Ross Baker and his family have had land holdings in Lot 20, Concession 9, Township of Central Frontenac (formerly Kennebec Township) for approximately four generations.

The land is under the jurisdiction of the Quinte Conservation Association (QCA) and is part of the Napanee watershed. It appears to be within a valley, which is known as "Baker's Valley", immediately adjacent to the north side of Kennebec Lake. An airfield exists on the property, along with a number of buildings used for airport maintenance, but also as rental and ownership cottages fronting on Kennebec Lake. A roadway crosses the airfield providing access to these buildings.

The property drains into Kennebec Lake and a "Provincially Significant Wetland" designation has been placed on a large portion of the lands by the Ministry of Natural Resources. The area is susceptible to periodic flooding and is within the limits of both the Fill Regulation Line and the Regional Storm Line for the area. (Ex. 9)

"Baker's Valley Lakeside Airfield" has been in existence since 1988 and is officially recognized as "#1040- Kennebec Lake - a 1500 foot gravel airfield" on the Ministry of Transportation's "Ontario Airports" map, distributed in 1995 (Ex. 6). Exhibit 6 also states, in writing by Mr. Baker, that the airfield is now 2000 feet long, is paved and lit. Mr. Baker applied to the Ministry of Natural Resources on February 9, 2000 to extend the runway by 240 feet to the west by a width of 50 feet and to use soil and gravel to carry out the necessary filling to construct the extension. (Ex. I-C).

This application was referred to the Quinte Conservation Association and Mr. Baker submitted a Permit Application in June 2000. (Ex. I-C-a) The application was refused in July (Ex. I-D) and a revised application was submitted in August which reduced the length of the proposed extension to 200 feet by 60 feet. Upon completion, the extension was to be seeded. This application was refused by the Napanee Region Conservation Authority Watershed Advisory Board in October, 2000 (Ex. I-H) upon the recommendations submitted by the Association's staff. Exhibit I-G outline the reasons for staffs denial of the issuance of a permit to Ross Baker:

  1. In the opinion of staff, the proposal is expected to result in the harmful alteration or destruction of fish habitat. The Ministry of Natural Resources (MNR) has confirmed that the area in question is used as a spawning area by Northern Pike and also provides habitat for other fish species. An authorization from the DFO footnote 1 [1] would be required prior to the issuance of a permit to fill, construct or alter.
  2. The permanent creek and associated floodplain/wetland at this location has been evaluated as a Provincially Significant Wetland (fen). It is expected that the proposal would result in a loss of wetland area and function. This has also been confirmed through discussions with the MNR. The Provincial Policy Statement states that no development is permitted within Provincially Significant Wetlands. Therefore, issuance of a permit for the proposed work would be inconsistent with the Provincial Policy Statement.
  3. A review of our floodplain mapping combined with measurements taken at the site confirm that the area to be filled is located within the 1 in 100 year floodplain of Kennebec Lake. Current NRCA floodplain policies do not allow this type of construction activity with the floodplain. Approval of this permit would contravene our own floodplain policies and set a significant precedent relating to floodplain issues in the watershed.

Opening statements

The Appellant, Mr. Ross Baker, began his opening remarks by stating that he intended to represent himself at the hearing and further, that he would not be calling any witnesses. In effect, what Mr. Baker did was submit his evidence through the cross-examination process of the respondent's witnesses. He stated that he would stand on the documents and information submitted to the tribunal prior to the commencement of the hearing. (Exhibit 2, 1 to 20)

Mr. Baker did indicate that the lands in question had been in his family for four generations, although he had sold several portions of the property for seasonal cottage development along Kennebec Lake. His airport access road also provides access for these cottages.

Mr. Baker stated that the extension of the airfield should be allowed in order to:

  1. provide greater safety to the traveling public and the public service agencies who use the airfield; and
  2. improve the economy of the region by providing employment in the area during the construction as well as future tourist dollars.

His two major concerns were:

  1. that the Quinte Conservation Association was twelve days late in submitting their information to the Office of the Mining and Lands Commissioner. He did not think this was acceptable.
  2. that neither the MNR or the Association had paid any attention to his complaints regarding the bolder and beaver dams being built at the mouth of the Salmon River. It is his contention that this "impedes the flow of water out of Kennebec Lake" and reduces the flood plain capacity around Kennebec Lake. (Ex. 2)

Mr. Baker concluded with comments regarding the fish population of the area. He stated that he had been trying to find game fish for two to three years with no success, especially regarding pike and walleye. Mr. Baker contended that an MNR staff person had corroborated this fact, but he did not provide the tribunal with any factual evidence in this regard.

Mr. David DeMille, on behalf of the Respondents, stated that the Quinte Conservation Association (QCA) had the mandate to fulfill the policies of the Association and had refused the application based on these policies. Simply stated, the application had an impact on the policies dealing with flooding, pollution, filling and the conservation of land (Sections 3 and 4 of O. Reg.160/90).

Mr. DeMille indicated that the tribunal had the right and responsibility to exercise discretion in the same manner as the Conservation Authority.

Issues

  1. Would the policies of the Quinte Conservation Association be compromised by this project?
  2. Does the application for the intrusion into Provincially Significant Wetlands for an extension of an existing airstrip meet the objectives of Provincial and Authority policies regarding the maintenance and protection of such lands?

Evidence

Since Mr. Baker did not call any witnesses and submitted his opening statement (Ex. 5) and the earlier documentation to the tribunal as evidence (Ex. 2), the hearing began with Mr. DeMille's cross examination of Mr. Baker, during which the following evidence from Mr. Baker was provided:

With regard to the airfield/resort operations.

  • he had not requested his air strip to be listed on the "Ontario Airports" map - it was done without his permission; (Ex. 6);
  • he does not belong to any Airport Association;
  • he does not have or require a licence for the airstrip under federal legislation;
  • any area that can provide service can and will be shown as an aerodrome;
  • there is no requirement for a permit to build an aerodrome;
  • Mr. Paul Dick, from the Toronto office of Transport Canada, inspected the airfield and found it safe enough, with sufficient runway length for the majority of small planes, in order for it to be listed in the "Canada Flight Supplement".
  • the airport's private road, serving the airfield and the cottages, has been open for sixteen years with only one emergency landing incident occurring, despite the existence of the access roadway and a ditch at one end;
  • the airfield is available for emergency services such as helicopters, fixed-prop planes and air ambulances. The landing/take off services have been offered free of charge for about ten years;
  • pilots who are used to 5000 foot runways are often wary of the shorter runways, so the slight increase in length would be beneficial for safety reasons;
  • Exhibit 3-19 is a copy of the "Baker's Valley Lakeshore Cottages and Lots List" Web Site. A resort by air is offered with cottages for rent and/or purchase;
  • the objective is the make the resort, including the airfield, more attractive in order to attract a larger market.

With regard to the application process:

  • the Work Permit application to MNR, dated March 3, 2000 (Ex. I-A), was for a grassed runway;
  • the application to the QCA, dated June 9, 2000 (Ex. I-C-a), was for gravel, to be built up to the same level as the existing paved airstrip with gravel and soil, with the intent to pave;
  • he was open to compromise with the QCA regarding the proposal, such as leaving the extension in grass rather that gravel/pavement;
  • Robin Humphries, a local pilot, actually signed and submitted the revised second application, dated August 10, 2000; Mr. Baker stated he was in agreement with the request;
  • the second application proposed 9 inches of fill closest to the creek (north) to 18 inches towards the south for a distance of 200 feet from the existing, paved portion of the runway. The proposed width was 60 feet;
  • he disputes the respondent's position concerning Exhibit 2-7, a letter to MNR regarding a Severance application dated August 11, 1988 from the Secretary-Treasurer of the Land Division Committee. MNR stamped the letter "We have no objection to the approval of the application as no Ministry policies or programs will be adversely affected". The respondent believes this statement refers to only the matter of the severance, while Mr. Baker believes it implies support for any action on the property, including filling;
  • he acknowledges that he wrote "no fishing policies" at the top of the letter, not the staff of the MNR.

With regard to the condition of the land:

  • fill and gravel were placed on the Baker farm in order to build the existing runway; The airstrip was not paved until after 1994;
  • the land did not have water lying on it as shown in the photographs in Ex. 3-16 before the runway was built in 1986-88; footnote 2 [2]
  • an outlet ditch to Kennebec Lake was dug by the appellant in 1985-86 for drainage purposes and gravel was deposited at the west end of the runway.

With regard to flooding conditions:

  • the appellant acknowledged that the property does flood in the spring time to varying degrees;
  • the April 1994 spring flood (Photograph Ex. 3-17) was high, and does not always occur but the appellant believes this was caused by the rock/beaver dam on the Salmon River, about 2 miles downstream from the Baker property;
  • the rock dam is not permanent; is man-made and over the past ten to twelve years, has come and gone; a 1993 photograph (Ex. 2-20) shows the remnants of a rock and log dam. The beavers excaberate the problem;
  • the water level of Kennebec Lake is affected by precipitation and by the rock dam, but drops in the summer.

In a final statement, Mr. Baker indicated that he, himself, does not need a longer runway, but that others, pilots in particular, have urged him to make the improvements. It has always been his dream to develop an airfield like those in the USA where tourists and commercial pilots are flying into small airfields in ever increasing numbers. He stated that he should be acknowledged for wanting to make the airfield safer for all of its users. His prehearing submission referenced an emergency situation encountered by a family flying to the area north of Kennebec. (Ex. 2-5)

Mr. David DeMille called the following professional witnesses on behalf of the respondent, all of whom were sworn as experts qualified in their respective fields to provide opinion evidence:

  • Andrew Schmidt, B.A.,C.Tech. - Regulations Officer, Napanee Region of Quinte Conservation Association;
  • Robert Snetsinger, M.Sc. (Biology) - Environmental Consultant, Ecological Services;
  • Karen Hartley, B.Sc. - Biologist with Quinte Conservation
  • Gray Merriam, B.S.A., Ph.D. - Wildlife Ecologist, OM Group Ecological Land Management

Mr. Andrew Schmidt, during his evidence, stated that in his capacity as Regulations Officer for the Authority, he reviewed the first application submitted by Mr. Baker to Quinte Conservation (June 9, 2000 - Ex. I-C-a), after a jurisdictional referral by the Ministry of Natural Resources (MNR) in March of 2000. (Ex. I-A, B and C) A review of the Quinte Conservation flood plain mapping showing the regulatory 1:100 year storm (adopted under Regulation 160) and the existing aerial photography, indicated that the proposal did have an impact on the policies of the Conservation Authority. The regulatory floodplain line can be defined as being about 550 metres from the centre line of the "cottage road" basically in a westerly direction. A permanent creek runs parallel to the existing runway, flowing in a westerly direction for some distance, then turning to exit into Kennebec Lake through an outlet which may be man made. (Ex. 3-17)

Mr. Schmidt visited the site (alone) on June 26, 2000, at which time he found the area very spongy. A creek flowed through what appeared to be a large wetland. Due to a concern over the potential existence of fish habitat on site, a second visit occurred on July 10, 2000. At this time, he was accompanied by the staff biologist, Karen Hartley who had been requested to review the issue of fish habitat. The proposed fill area exhibited seasonal flooding during this visit. (Ex. 3-15 and 16 - photos). Further photographic evidence showed extensive flooding in April 1994 (Ex.3-l7) with the area of the existing runway and the proposed extension completely under water.

Mr. Baker was notified by letter, dated July 21, 2001, (Ex. I-D) that staff had denied application #25/00 on the basis that:

  • the area is known to be seasonally inundated with water and provides fish habitat and spawning area for various fish species, in particular the Northern Pike;
  • a permanent creek would require realignment and fill would be needed to create the runway;
  • the area has been evaluated as a Provincially Significant Wetland and the Provincial Policy Statements do not permit development;
  • the proposed construction is not permitted within the limits of the defined 1:100 year regional storm floodplain limits.

Throughout the process, staff constantly noted that regardless of the final decision on the application, the authorization of the Federal Department of Fisheries and Oceans (DFO) would be required before a Permit to Fill, Construct or Alter could be issued by Qunite Conservation. The tribunal notes that this approval would still be required no matter what is decided by the tribunal.

Mr. Schmidt subsequently met with Mr. Robin Humphreys, who was acting as agent for Mr. Baker. As a result, the first application (#25/00) was withdrawn and a second was submitted (#122/00) on August 10, 2000. This application reduced the length of the area to be filled and stopped just short of the creek where it exits to Kennebec Lake. This proposal covered an area approximately 60 feet by 200 feet or 12,000 square feet. The Authority staff estimated that 9 to 18 inches of gravel and local soil would be required to fill the area; an amount equivalent to approximately 500 cubic yards or 27 + truck loads of fill. (Ex. I-E). The application indicated that the area was to be seeded after it was filled.

Application #122/00 was reviewed and again refused, for the same reasons as outlined for the first application. (Ex. I-F) The applicant requested a full hearing before the Napanee River Watershed Advisory Board. In preparing the report for the Advisory Board, Mr. Schmidt indicated that he visited the site a third time on September 15, 2000, to secure some actual measurements. He found the site to still be moist and spongy. (Ex. 3-4)

Mr. Schmidt advised the tribunal that the staff work within the Napanee Region Conservation Authority's Policies and Procedures – Fill, Construction and Alteration to Waterways Regulation. (Ex. 3-2). Regulation 160/90 provides the Authority with the power to:

  1. prohibit or regulate the straightening, diverting or interfering in any way with the existing channel of a river, creek, stream or watercourse; (ie. Alteration to Waterways Regulation)
  2. prohibit or regulate the construction of any building or structure in or on a pond or swamp or in any area susceptible to flooding during a regional storm; (ie. Construction Regulation)
  3. prohibit or regulate the placing or dumping of fill of any kind in which, in the opinion of the Authority, the control of flooding or pollution or the conservation of land may be affected by the placing or dumping of fill;(ie. Fill Regulation)

Section 4 of the Policies and Procedures outlines the administrative procedures for securing a permit for any purpose described under these Regulations if it can be shown that the proposal "will not result in significant flood storage loss". (Ex.3-2) The staff also considered the issues of conservation of land and the loss of wetlands. Based on all the policies of the Authority and those of the Province, the staff submitted a report, dated September 26, 2000, to the Napanee Region Conservation Authority Watershed Advisory Board recommending a denial of application #122/00.

Mr. Humphries attended the hearing on behalf of Mr. Baker. In addition, there were a number of individuals who attended the hearing in opposition to the proposal. The Kennebec Lake Association submitted a letter, dated July 12, 2000, expressing their opposition to the runway extension on the basis of possible environmental impact on existing wetlands. The Association, which represents the interests of property owners on or near Kennebec Lake, also was concerned about water quality. A detailed assessment, prepared by Mr. Gary Merriam, was attached as part of the Association's submission. (Ex. 3-9,10 and 11)

The staff recommendation was accepted by the Board at its meeting of September 26, 2000. The denial was "based upon current Napanee Region Conservation Authority floodplain policies". More specific detail was provided in the letter outlining the fact that the proposed fill, estimated to be approximately 382 cubic metres (457 cubic yards) would be located within the 1 in 1 00 year floodplain area of Kennebec Lake. As a result, the available area for flood storage would be reduced by this amount. Mr. Baker was notified of this decision by letter, dated October 5, 2000. (Ex. I-H) His appeal to the Minister of Natural Resources was received by the Mining and Lands Commissioner on November 2, 2000.

Mr. Baker raised the issue of the "rock dams" at the mouth of the Salmon River and their possible effects on the level of Kennebec Lake, especially in light of recent higher levels of rainfall. Mr. Schmidt indicated that there could be some effect at certain times of the year but he could not confirm Mr. Baker's claim that the impact was as much as two (2) feet. Mr. Baker had notified Mr. Mark Fergus of MNR in August, 1994 about the existence of these dams and his belief about the impact of the dams on the lake and the Salmon River, but Mr. Baker felt that no satisfactory action had ever been taken to resolve the matter. He wondered why the Authority had not paid attention. Since the request was to the MNR and not to the Authority, Mr. Schmidt stated that the matter was left to MNR to respond, but noted that the Authority was aware of the dams, as well as the common existence of beaver dams in the area, both of which could hold back water at certain times of the year. Mr. Schmidt, however, stated that the Authority was more concerned about the probable effect of the 1:100 year storm on the floodplain area.

During the cross-examination of Mr. Schmidt, Mr. Baker placed before the tribunal the trial proceedings of a Provincial Court (Criminal Division) - Her Majesty the Queen against William Baker and D.R. Lewis Construction Limited which was heard before His Honour Judge P.E.D. Baker on May 3, 1990 in Sharbot Lake, Ontario. (Ex. 8) This trial dealt with a charge of unlawfully depositing "a deleterious substance in a place where such deleterious substance may enter water frequented by fish contrary to Section 36, subsection 3 of the Fisheries Act, R.S.C. 1985, Chapter F-14. " (Ex. 8-page 4-paragraph 20). The charge had been laid by MNR out of its Tweed office and resulted from complaints received in that office that silt from the Baker property was running from a creek into Kennebec Lake. MNR staff visited the site and determined that construction work was being undertaken and trees had been removed in an area about 100 to 150 yards upstream from the creek. The concern regarding the silt and the turbidity of the water relates to the effect on the fish and their food chain.

Mr. Baker's purpose in entering this exhibit appeared to have been to show the tribunal that in May of 1990, only minnows were caught by MNR staff in the creek exiting from his lands. The MNR staff did testify that the area is known as a pike spawning area with the spawning usually beginning in late April. (Ex. 8- P. 35 -5) This spawning process goes on over a period of 3 to 6 weeks or to the end of May. However, staff also testified that there was no pike or walleye species seen at the time of the investigative visit.

The tribunal notes that the trial document does not provide any proof of either the presence or absence of northern pike or walleye fish species in the area, but deals with the possible effects of the silt deposits into the creek and lake on fish habitat.

Mr. Robert Snetsinger, an environmental biologist, provided evidence with regard to wetland management and fish habitat. In July, August and October of 1993, he conducted an evaluation of the Kennebec Complex Wetland for MNR. Through field analysis as well as a review of aerial photographs, the boundaries of this wetland complex were determined to be extensive in nature. During an evaluation process, where 50% of the vegetation is of the wetland variety, then the area is considered to be a wetland. In addition, a great many issues are reviewed before a "Provincially Significant" label is applied to an area. Some of these issues deal with:

  • biological considerations - the diversity of the site;
  • social features or the human use of the area;
  • hydrologic factors such as the ability of the area to absorb flood waters; and
  • special features dealing with rarities of plants and the fish habitat;

Mr. Snetsinger's evaluation indicated that the Kennebec Complex was a Class 1 wetland with a high value attached. It receives all the drainage from the catchment area. Mr. Snetsinger's recommendation to MNR was accepted and the Kennebec Complex was designated a provincially significant wetland. (Ex. 3-7) As a result of this designation, the site falls under the Natural Heritage Policies arising under the Planning Act and such designations must be included in all local planning documents.

Mr. Snetsinger told the tribunal that fish habitat can be located in ditches, in farmers fields or any area where the fish can get into water during the spring floods, spawn and then move out again. He indicated that he had not seen any pike in the area, but stated that it was an optional area for this specie to spawn.

A series of aerial photographs of the Kennebec Complex were submitted by Mr. Snetsinger providing some historical data regarding the existence and the boundaries of the wetland. (Ex. 10)

  • the 1953 photograph quite clearly indicates the boundary of the overall complex. There appears to be natural drainage from the wetland to Kennebec Lake in the approximate area of the existing ditch/creek drain;
  • The 1978 photograph shows more tree cover, but the boundaries still are clear. Some sort of road way, parallel to the lake, has appeared, along with a few buildings. The creek drainage is more pronounced.
  • The 1980 photograph shows a greater number of buildings/cottages overlooking the lake itself, but the wetland boundary and outlet is still obvious, but somewhat smaller in size. This photo showed the original drainage hydrology of the land; and finally,
  • The 1991 photograph shows a further reduction in the area of the wetland along with the existence of the air strip. The area of the wetland to the east of what can now be described as a drainage channel appears to have partially disappeared;

Mr. Snetsinger stated that he would have anticipated a larger area of wetland to have existed in 1993 when his evaluation was carried out. The creek or drainage channel definitely existed at that time and appeared to have been channelled by 1993. He concluded that the area proposed to be filled would all be located in the provincially significant wetland.

In response, Mr. Ross Baker indicated that a ditch had been dug in 1985 which could have reduced some of the area of the wetland. He noted that this channel was dry ''five years ago" as shown by the photograph found in Ex. 2-20. The tribunal notes that no date was attached to the photo, but assumes the photo would be dated either 1995 or 1996.

Karen Hartley's evidence dealt with fish habitat and wetlands management. She had reviewed the Baker application with regard to these issues. The proposed fill area was under standing water at the time of her inspection on July 10, 2000 and the channel appeared to be flooded. (Ex. 3-5) Sensitive aquatic plant material and fish habitat characteristic of wetland habitat were present in the area of the floodplain and the actual stream channel. It was quite clear that the proposed runway extension would bisect the channel and its associated floodplain.

It was also noted during this site visit that the stream/floodplain appeared to have been channelized in the past. A further investigation revealed that Mr. Baker had been charged under the Fisheries Act sometime in the late 1980's for straightening the stream bed prior to the construction of the airstrip. Filling of the stream and the marsh (wetland) also appeared to have taken place at that time. (Ex. 8)

Ms. Hartley, in her review of Quinte Conservation files, had not found any wetland evaluation on file and made her judgment on the basis of her own knowledge. She has since had a chance to review Mr. Snetsinger's evaluation and concurred that the proposed construction area would be part of the designated provincially significant wetland. The filling would lead to a direct loss of further wetland area. This becomes significant because it has been on-going. The filling also would lead to a direct loss of fish habitat and could harmfully alter the fish habitat for the entire Kennebec area. Finally, the proposed structure would alter the way that water can/will move across the area. Silt will be deposited in different locations causing a change in the impact on the local habitat.

Ms. Hartley referenced:

  1. Section 35 of the Federal Fisheries Act prohibits the alteration of a watercourse without a permit. In her view, it certainly appeared that such alteration had taken place on the property.
  2. The provincial Policy Statement – Natural Heritage Section: Section 2.3 applies to the Baker lands and is a document that the Authority must "have regard for". In part, this policy states that
  1. Development and site alteration may be permitted in:"
    • fish habitat;
    • significant wetlands in the Canadian Shield ;"

"if it has been demonstrated that there will be no negative impacts on the natural features or the ecological functions for which the area is identified. "

The Baker property is within the geographic area described under this Policy as the Canadian Shield where control of development is less stringent. However, in reviewing the criteria and its relationship to the site, it was clear that the proposal could not meet the criteria, in that the loss of both fish habitat and wetlands that qualify as provincially significant were expected. As a result, Ms. Hartley recommended that the application be denied.

Mr. Baker asked Ms. Hartley if short term higher water tables would have an affect on the wetland and over what period of time would any change take place. Ms. Hartley indicated that the wetland's surface could dry up through various periods of the year, but could not estimate any time name over which a wetland might change. Wetlands do adapt to changes in order to protect their habitat. Her research definitely indicated the presence of wetland vegetation.

Mr. Gray Merriam provided the tribunal with information regarding landscape ecology. Mr. Merriam has had a permanent home on the Salmon River downstream from Kennebec Lake for about five years. He is very familiar with the the area and has actually done some measurements on the lake regarding water quality and related issues. He purchased the land in the early 1990's.

As a scientist and as a resident, Mr. Merriam has concerns about the proposed development in terms of nutrient addition to the lake and the wetlands. The historic wetland in the area was essentially a "sponge wetland... without a defined channel". It is the last or most downstream wetland in the overall complex that goes as far north as Gull Lake and west as far as Highway 41 before the water is dumped into Kennebec Lake. As a result, it is critical "in terms of processing the water that flows out of the entire Kennebec wetland complex". It provides the last chance to influence the quality of the water in the actual wetland and that flowing into the lake, and the Salmon River.

The proposal calls for a large amount of gravel and topsoil to be used as fill to construct the additional runway in an area extending an unknown distance from the bank of the dredged channel and all sitting on top of a spongy wetland. The concern with the gravelly fill relates to the chemicals in the fill that would have an impact the wetland. One dump truck load would provide about .9 kilograms (2 lbs.) of pure chemical (P205) which is a substantial source of phosphorous pentoxide in an aquatic system. This is quite a large amount. In addition, the same truck load of gravel would contain about .36 kilograms (.8 lbs.) of nitrogen.

The amounts of both of these chemicals would be higher in one dump truck load of top soil. They would also exist in the topping of grass seed proposed for the area. The phosphorous level in the top soil load would be 1.8 kilograms while the pure chemical nitrogen level would be about 2.88 kilograms (6.4 lbs.). How much of these chemicals would leave the fill and filter into the wetlands is unknown, but, in the case of the highly insoluble phosphorous, it would come off the sides of the slopes by surface washing. The nitrogen, on the other hand, is highly water soluble, so it will leach down through the topsoil into the gravel where it will be able to flow in any downhill direction that is open to it and out through the bottom (the spongy wetland area) and probably through the drainage way into the lake.

These nutrients are the prime cause of "eutrophication" of a lake which involves the increase in plant growth of both the floating and rooted weed type plants. This type of lake is ''fed too well". "Eutrophic" basically means that so much organic matter is produced due to increased nutrients that it cannot decay but falls to the lake bed when it dies. It uses up all the available oxygen, thus depriving the fish of their necessary oxygen.

Enough data exists regarding Kennebec Lake to indicate "that this lake is in a position where any addition to the nutrient regime in the lake will push it out of the Ministry of Environment's category called mesatrauphic, and push it over into the eutrophic category. " This data collection was undertaken by the Lake Steward and the Environment Committee of Kennebec Lake Association, with the analysis done by professional laboratories. The two readings presently available are 23 and 25 micrograms per litre of phosphorus and the MOE guideline of pushing over from eutrophic to mesatrauphic is 20 mplp. This rating is essentially a water quality rating for lakes and is important information for cottage associations, real estate agents and biologists. When eutrophication occurs, Mr. Merriam stated that "it's virtually impossible to ever bring it back. It's an irreversible change".

In addition, since Kennebec Lake averages only 27 feet, a depth that is considered very shallow. The increase in the nutrients that could occur from this construction is a further concern. The water quality of Kennebec Lake is deteriorating and the cottagers who are opposed to the extension of the airfield, are basically saying that they don't like the increased presence of water weeds; the increased fish kill, resulting in the deterioration of "their" Kennebec Lake.

Mr. Merriam summarized the Baker proposal by stating it would almost certainly have an impact on the control of pollution in Kennebec Lake due to the phosphorous and nitrogen content that will exist in the proposed fill. In addition, the proposal will have an impact on the conservation of land. This is the last wetland in the large provincially significant wetland complex and it has a significant relationship between the upland wetlands toward Gull Lake and the Kennebec - Salmon River watersheds. All of the rivers, lakes and wetlands provide linkages throughout the overall wetland complex, from the north, all the way to the Bay of Quinte.

In concluding his testimony, Mr. Merriam referred to Mr. Baker's questions and concerns about the Salmon River "dam". This rock dam and the beaver dam are immediately outside Mr. Merriam's residence on the river. (Ex. 2-20) These two "dams" are approximately 20 to 25 metres apart and are in the first shallow area of the river after it leaves Kennebec Lake.

The rock dam is actually the remnant of one originally built in the past for logging. It created enough of a lake level increase to allow easier movement of logs through the lake. A log sluiceway was built along/under Smith Road in order to shorten the distance needed to transport the logs further down the river. In recent times, Mr. Merriam has not seen people building up this rock dam, nor apparently, has MNR. The beaver dams are all seasonal and flush out with high water. During the summer, little water is present.

The old sluiceway still exists and has been upgraded with culverts by cottage dwellers to ensure water can flow from Kennebec Lake to the Salmon River. This acts as an automatic overflow valve for the lake. He considers Mr. Baker's concerns "misplaced". Mr. Merriam estimated that Kennebec Lake is about seven (7) kilometres long and Mr. Baker's lands are approximately five (5) kilometres along the lake from the river and in his opinion, the "rock dam" would have to hold back the water for these five kilometres in order to have any impact on the Baker lands - an unlikely occurrence.

Mr. Baker asked Mr. Merriam if he was responsible for the rock dam being replaced every time it has been removed, since in his view, this problem had only existed only since the Merriam's actually purchased the land in the early nineties. Mr. Merriam replied that he would not do such a thing as it could interfere with fish habitat and this is against the law. He indicated that he was aware that MNR had investigated his family with regard to the rock dam and he also was aware of news reports, emanating from Mr. Baker, about the rock dam and its supposed building.

Mr. Baker sought Mr. Merriam's opinion regarding the impact of pollution if the fill was actually taken from the floodplain itself. In response, it was stated that a problem still would occur since any disturbance increases the risk of the nutrients getting into the lake water through the gravel fill. Not using gravel, would reduce the amount of nitrogen materials leaching out, but not the phosphorous, since it moves by surface washing, not leaching. Despite the size of the proposed work, Mr. Merriam felt it would be a significant loss of wetland, especially added to the loss through the ditching that had occurred to create a drainage-way through the spongy wetland.

Mr. DeMille called two local residents as witnesses for the respondents.

Mr. Keith Feasey has lived permanently on Smith Road on the south side of Kennebec Lake since 1997 having bought the property in 1990. His property is approximately three (3) kilometres from the airstrip. He has been President of the Kennebec Lake Association since 1997. In 1996, there were approximately 224 cottagers in the area and the reason most these people live here is because of their love of fishing.

He explained that the Association had submitted a letter, dated July, 2000, to the NRCA which included a list of concerns prepared by Gray Merriam. (Ex. 3-9 and 3-10) The purpose in submitting the letter was to provide comments to the Authority on a rumour about the possible extension of the runway at Baker's Field. The Association was concerned about the possible increase in the nutrients going into the lake which could effect the fish habitat. The attachment listed six items of concern to the Association:

  1. the impact of additional nutrients to the lake from the fill material;
  2. the loss of wetland habitat from the watershed;
  3. the loss of spawning and nursery habitat for fish;
  4. the safety of cottagers and residents regarding increased landings;
  5. the loss of peace and quiet enjoyment of lakeside properties;
  6. the potential for significant reduction in property values.

Mr. Feasey could not see that the airport expansion would increase property values in the area, as submitted by Mr. Baker. In fact, in his opinion, the opposite would be true. The resident's water source is Lake Kennebec, so any deterioration of the lake would have an impact on their quality of life as well as on the well being of the lake itself. His personal view is that the quality and quantity of the fish in Kennebec Lake is decreasing.

Mr. Baker, during his cross examination, indicated that he had "felt slandered" by the Association's letter which stated that the runway was to be extended by a further 1000 feet (300 metres). Mr. Feasey responded that their information had come from the letter from George Nelson of the Oshawa Airport, dated March 2, 1994. This letter stated that the runway was to be extended from 1500 feet to 2500 feet. (Appellant's Exhibit 2-16). Mr. Feasey went on to state that the number of planes presently using the runway averaged around 2 to 3 per week. This did not bother the residents but it was the environmental impact of the project on the lake that caused them great concern.

Mr. Ronald Henry lives about 150 yards from the side of the airstrip along Kennebec Lake. His property is about 300 metres (328 feet) from the ditch which provides the outlet from the wetlands to the lake. The property was purchased in 1968 and used as a seasonal cottage until the Henry's became permanent residents 13 to 14 years ago.

Referring to the aerial photo of the lake in flood, dated April 1994 (Ex. 3-17), he informed the tribunal that this kind of condition was not abnormal for the spring of the year. In fact, he recalls seeing the water even higher. In addition, standing water to a depth of 6 inches is a fairly common event in the neighbourhood of the wind sock (Ex. 3-16 and Ex. 11).

During cross examination, Mr. Henry acknowledged Mr. Baker's contention that the cottagers have free access to the properties over the airport lands. In fact, this apparently had been Mr. Henry's idea and had been negotiated with the Bakers.

Mr. Baker concluded his cross examination by indicating that the 1994 flood had been the highest that he could remember and that the rock dam was the greatest problem at that time. He stated that a steel monument exists marking the high water mark. He also stated that the lake levels did go up and down as much as 4 to 5 feet annually.

Final arguments

Mr. Ross Baker, the appellant, concluded his final arguments by stating the actions he would be willing to take if the tribunal approved his application. He was prepared to:

  • use floodplain material as fill to reduce the impact of the nutrients;
  • undertake the work during the dry season to eliminate run off;
  • work with the Conservation Authority to develop a compromise proposal that would add safety for the aircraft and passengers;
  • maintain free access for the cottagers.

He submitted that some changes were in order to improve safety. He believes the airport is pretty good now, but some improvements would assist the economy of the airport as well as the economy of the area.

Mr. David DeMille, counsel for the respondent, summarized the proposal as one that seeks to use approximately 500 cubic metres of fill over an area of 12,000 square feet. This would amount to 26 or 27 truck loads of fill - not an insubstantial amount.

The property was investigated in 1993 and found to be part of a significant wetland. MNR designated it provincially significant at that time. The 2000 review reconfirmed the wetland's status as provincially significant. In addition, the area was found to be a spawning ground for many fish species, including northern pike, resulting in the need for development approval under the Federal Fisheries Act.

Based on the extensive research and review of the proposal, staff recommended and the Authority accepted the recommendation, that the proposal be denied. This was done on the basis that:

  • a harmful alteration to the wetlands would occur through the use of fill;
  • that a permanent loss of significant wetlands would occur;
  •  that the lands in question were all within the 1 in 100 flood limits.

In making its decision, Mr. DeMille suggested that the tribunal must have regard for the Provincial Policy Statement – 1997, since the project lands are provincially significant wetlands. These wetlands are a resource that should be protected for the future - for the human population, as well as for the fish habitats. Discretion should be exercised in order to protect the environment.

He referred the tribunal to two sections of the Policy Statement. Section 1.1.1 (f) states that "Development and land use patterns which may cause environmental or public health and safety concerns will be avoided." In addition, the Policy Statement's Natural Heritage Section 2.3 states that development and site alteration may be permitted in fish habitat areas and significant wetlands within the Canadian Shield "if it has been demonstrated that there will be no negative impacts on the natural features or the ecological functions for which the area is identified. " Mr. DeMille does not believe that Mr. Baker has demonstrated that "negative impacts" will not occur. In fact, the Authority's witnesses have shown the opposite.

The tribunal should also have regard for the Policies and Procedures of the Napanee Region Conservation Authority and O. Reg. 160/90. Section 3 (a) of the Regulation states that no person shall:

"construct any building or structure or permit any building or structure to be constructed in or on a pond or swamp, or in any area susceptible to flooding during a regional storm." (Ex. 3-2)

Although there is no definition of the word "structure" in the Regulations, Mr. DeMille submitted that, basically, it means the gathering together of anything to create something. (See Zalev) In this case, the structure also is susceptible to flooding and is located in a swamp or wetland in terms of the Authority policy documents.

Mr. DeMille referenced Zalev Brothers Ltd. v. Windsor (City) 1988 - District Court - O.J. No. 935 which deals with the Planning Act. Judge D.C.J. Cusinato dealt with the meaning of the word "structure" as it related to the building of a concrete pad. Several cases were reviewed, all of which concluded that the use of the word "structure" has "an enlarging effect and it includes material constructions which do not come within the description of buildings." Judge Cusinato concluded that the word structure "was intended to go beyond the ambit of the word "building". Mr. DeMille submitted that the Authority had regulatory powers to deal with the structure being proposed.

Section 4 of the Regulations (Ex. 3- 2) sets out the tests that the Authority must deal with in their decision making. Mr. DeMille submitted that the tribunal also must deal with these tests. This Section states:

"Subject to the Ontario Water Resources Act or to any private interest, the Authority may permit, in writing, the construction of any building or structure, of the placing or dumping of fill, of the straightening, changing, diverting or interfering with the existing channel of a river, creek, stream or watercourse to which section 3 applies if, in the opinion of the authority, the site of the building or structure or the placing or dumping and the method of construction or placing or dumping, or the straightening, changing, diverting or interfering with the existing channel will not affect the control of flooding or pollution or the conservation of land." O. Reg. 436/85,s.4

Based on this Regulation, the tribunal must answer the questions of Section 4:

  • will the proposal have an impact on the control of flooding?
  • will the proposal cause/affect pollution?
  • will it have an impact on the conservation of land?

He further referenced an Ontario Court of Justice appeal judgment regarding 611428 Ontario Ltd. v. Metropolitan & Region Conservation Authority, dated April 22, 1996, where leave to appeal was actually refused and the case dismissed. This case arose from an appeal of a decision by the Office of the Mining and Lands Commissioner (CA 007-92 - February 11,1994 - unreported). There were some relevant arguments during the hearing dealing with the preservation of an ecosystem being included within the broad definition of "conservation of land" within the Conservation Authorities Act that was in force at the time.

Mr. DeMille submitted that none of the tests had been met by the appellant. As a result, the application should fail.

Findings

General comments

The tribunal is always concerned with fairness throughout a hearing, especially when only one party has the assistance of legal counsel and professional witnesses. This is not an uncommon situation for the tribunal. However, it is the responsibility of the tribunal to remain neutral, to listen to all of the submissions, and then review the evidence as it relates to the statutes and regulations to determine a decision. Common sense should also apply.

The tribunal is aware that Mr. Baker had concerns about his lack of legal help during the hearing. The tribunal, however, notes that Mr. Baker was able to present his arguments in an understandable manner with some supporting documentation, with the exception of the so-called rock dam issue.

Mr. Baker has an overwhelming belief that this dam causes flooding on his lands, although it is located 4 to 5 kilometres away from his property. Unfortunately, Mr. Baker did not provide any material evidence, other than his belief, that would or could prove this theory. On the other hand, the evidence that was submitted by the respondent's witnesses tells another story. Mr. Merriam lives beside this dam and provided clear observations relative to its continued existence. As a professional environmentalist, he stated that the ability of the dam to hold back enough water to impact the flooding on the Baker lands was an "unlikely occurrence". In addition, it seems clear to the tribunal that if the Conservation Authority, being aware of the existence of this "dam", had any concern that the dam could cause a flooding problem anywhere in the area, they would have taken steps to alleviate the situation. It is their job to manage flood conditions and anything of this nature surely would be managed. As a result, the tribunal has not listed the rock dam on the Salmon River as an issue in this hearing.

In addition, there were several other points raised that, in the opinion of the tribunal, do not merit being listed as issues, but do merit some comment by the tribunal.

Mr. Baker did not think it was acceptable that Quinte Conservation was twelve days late in submitting their information to the Office of the Mining and Lands Commissioner. The tribunal is aware that all parties are given dates for their materials to be submitted to the Registrar of the Office. These dates are ordered, but no party is punished if the deadline is not met on the actual day. It is clear to the tribunal that this delay was not a "willful act" since the Authority had informed the tribunal of the proposed delay, and submitted their documents well within a reasonable time frame allowing for a full review by the appellant and the tribunal, prior to the actual hearing date. Since all cases must be decided on their own merits and not on a procedural technicality, the tribunal finds that no prejudice has resulted by accepting this late filing.

In addition, there was a minor issue raised about the importance of the 1988 approval by MNR of Mr. Baker's Severance application. The tribunal accepts the position of the Authority in that the supporting comments provided by MNR dealt with only the severance application and not with any further work that Mr. Baker might contemplate in the future. No approving body deals with proposals that might occur in the future. They deal only with what is put before them at any given time and in this case, it was merely the division of land ownership, certainly not an extension of the airfield.

One final comment deals with the definition of structure. The tribunal accepts that the airfield extension would be defined as a structure in that gravel, soil and grass or pavement would be combined together to create something. Mr. Baker did not put forth any arguments that would dispute the landing strip being defined in this way.

Issue 1: would the policies of Qunite Conservation be compromised by this development project?

In the Baker application, the issue of safe access within the project does not have any great significance. The proposal is an extension of an existing runway and not the development of a new runway. If it was the latter, the tribunal would have concerns since it is obvious from the aerial photo evidence (3-17 and Ex. 11) that lower portions of the existing runway could be flooded on an annual basis and certainly would be flooded during a regional storm. However, the land uses, consisting of an airport and mostly seasonal cottages, would not constitute any serious threat to human safety during a flood, as people would just stay away until the flood abated. The airport/cottagers access road is located above the flood line. This however, may become a concern as further cottages become permanent residences. The tribunal does not find that safe access through the floodplain is an issue in this instance.

In reviewing the relevant questions related to Issue 1, the tribunal noted the definitions outlined in Section 28 - 25 of the Conservation Authorities Act and found the majority of the definitions applicable to the Baker application.

(25) "in this section, "development" means,

(a) the construction, reconstruction, erection or placing of a building or structure of any kind," .......(b)

(c) site grading

(d) the temporary or permanent placing, dumping or removal of any material, originating on the site or elsewhere;

"hazardous land" means land that could be unsafe for development because of naturally occurring processes associated with flooding, erosion, dynamic beaches or unstable soil or bedrock;

"pollution" means any deleterious physical substance or other contaminant that has the potential to be generated by development in

an area to which a regulation made under clause (1) (c) applies;

"watercourse" means an identifiable depression in the ground in which a flow of water regularly or continuously occurs;

"wetland" means land that,

  1. is seasonally or permanently covered by shallow water or has a water table close to or at its surface,
  2. directly contributes to the hydrological function of a watershed through connection with a surface watercourse,
  3. has hydric soils, the formation of which has been caused by the presence of abundant water, and
  4. has vegetation dominated by hydrophytic plants or water tolerant plants, the dominance of which has been favoured by the presence of abundant water,

The Conservation Authorities Act defines a '"structure" as "development". It should be noted that the tribunal has accepted that the extension of the airfield can be defined as a "structure" and, therefore, falls within the "development" context of the Act.

The Authority's jurisdiction in this matter is also quite clear under the Policies and Procedures - Fill Construction and Alteration to Waterways Regulation of the Napanee Region Conservation Authority. The Authority has been given the right and the responsibility :

  1. to prohibit the construction of any structure in or on a swamp or in any area susceptible to flooding during a regional storm;
  2. to prohibit the placing of fill in any area under their jurisdiction in which the following may be affected by such placement of fill:
    1. control of flooding,
    2. control of pollution, and/or
    3. conservation of land

The tribunal has reviewed the evidence as it relates to these aspects of the NVCA regulations, namely susceptibility and control of flooding, pollution and the conservation of land.

Susceptibility and control of flooding

The evidence of the floodline map (Ex. 9) places the proposed extension of the runway squarely within the 1 in 100 Year Regional Stonn flood line area of the Napanee Watershed. Significantly more area of the runway is within the Fill Control area, as established under Regulation 160 of Quinte Conservation.

It has been noted that the tribunal does not find the safe access aspect of flood control to be significant in the Baker case. However, the aspect of the placement of fill in the floodplain is certainly at issue. Authority staff estimated that approximately 382 cubic metres (457 cubic yards) to 500 cubic metres (598 cubic yards) of gravel and soil were to be placed on the site. This is equivalent to approximately 27 truck loads of fill material. The tribunal agrees that this is not an insignificant amount of fill. The amount of available flood storage would be reduced by this amount, as no cut and fill is possible in the immediate area, although Mr. Baker did suggest this possibility in his summation. Based on the information that the removal of floodplain soil for use as fill could create an unstable condition for the soil nutrients leading to possible pollution, the tribunal accepts that any possible cut and fill procedure would not be advisable.

With a reduced area for flood storage in the existing floodplain, it is obvious that the water will go elsewhere or it will rise higher, thus having an impact on other surrounding areas, including the existing cottage sites. This is not acceptable to the Authority within their responsibility over the control of flooding, nor is it acceptable to the tribunal. The tribunal accepts the evidence that the site is susceptible to flooding and finds that the control over this flooding will be effected by the placement of the proposed fill in the floodplain.

Control of pollution

The tribunal was persuaded by the evidence provided by Mr. Merriam regarding the presence of the phosphorous and nitrogen in any gravel and soil that would be used to fill the floodplain. The description of how these nutrients would impact the lake by causing further degradation was noteworthy.

The water quality of Ontario lakes is of major concern to environmentalists and residents alike. According to Mr. Merriam, once these lakes "eutrophy, it will be almost impossible for life to return. The value of the lakes for the recreational economy in the province is then largely lost, as is the use of the lake to provide a source of safe water for the local communities. It is noted, that some of the lake degradation is actually occurring because of this same recreational economy, but it is also being caused by development which has an impact on the adjacent lands by creating adverse runoff and leaching.

The tribunal understands that life can be restored in even shallow lakes, but only if the nutrients are sufficiently reduced to produce dramatic reductions in algae, allowing light to be returned to the habitat organisms. The required restoration work would be expensive. As a result, proper management is important in order to avoid costly future measures. The evidence regarding the impact of the addition of these nutrients on the fish habitat, if the Baker project proceeded, was significant and the tribunal accepts this as a negative impact.

The tribunal, therefore, finds that the evidence is clear in the Baker case that there is a very strong likelihood of pollution being caused by the disruption of the existing floodplain conditions by the placement of the proposed fill. In addition, it seems clear to the tribunal that the disruption due to the earlier placement of fill and the alteration or the creation of a new drainage channel through the floodplain has undoubtedly contributed to the pollution of Kennebec Lake by both the addition or and the destabilization of the soil nutrients adjacent to the channel, allowing them to enter the waters of the lake. It therefore follows that the fish habitat would continue to be affected as well as the quality of the water for residential users by any additional impacts.

Conservation of land

Mr. DeMille presented the tribunal with several cases which referenced the meaning of "conservation of land". Section 20 (1) of the Conservation Authorities Act, states:

the objects of an authority are to establish and undertake, in the area over which it has jurisdiction, a program designed to further the conservation, restoration, development and management of natural resources other than gas, oil, coal and minerals. R.S.O.

The four words "conserve, restore, develop and manage" are used throughout the Act with regard to the responsibilities of conservation authorities. Certainly, the words "conservation of land" are used throughout the present Act and all its predecessor forms. No definition has appeared in any of these documents. The Oxford Dictionary - Seventh Edition offers these definitions:

"conserve" - keep from harm, decay, loss, esp. for future use.
"conservation" - preservation, esp. of natural environment. "

The tribunal understands these definitions of conservation as words which suggest that we should be ensuring the protection of the natural environment from harm or loss for the future of mankind. The Act directs that the authorities should conserve or keep from harm or loss, should restore where harm has been caused, to develop where improvements can be made and lastly to manage the resources in order to preserve for mankind.

The fact that no definitions actually exist in the Act is noted in the past appeals submitted to the tribunal by Mr. DeMille. The MTRCA case indicates that an argument ensued as to what "conservation of land" actually meant, with the Appeal Court agreeing with Commissioner Kamerman, that:

"it is incorrect to conclude that the conservation of land narrowly encompasses only such matters as sedimentation, erosion and flooding as the appellant would argue." footnote 3 [3]

 

In addition, the tribunal also reviewed Hinder v. Metropolitan Toronto and Region Conservation Authority 16 O.M.B.R. 402, 1984. In this case, one witness stated the meaning as "a return to natural conditions" or preservation, but stated it also included "active measures", implying that improvements could be made. The tribunal agrees with Commissioner Ferguson's position, when he stated that there was no reason why "conservation" could not mean changes in nature to permit future use. In his opinion,

"the proper meaning to be attributed to the word "conservation" is the concept of wise use as contrasted with retention in its existing state, where as in the case under the Ontario Statutes there is a distinction between that word and "preservation." footnote 4 [4]

 

However, although noting the problem of definition, the tribunal does not find it necessary to rely on this aspect of the matter relating to conservation of land. The project itself has been shown to have an effect on flooding and pollution. The issue of loss of wetlands will be discussed later. The tribunal does not believe that Quinte Conservation has refused the project solely on the basis of the "preservation" of the land, but have looked at the "wise use" of the land as it relates to the natural environment, including both the effects on human as well as plant and animal life. In this, the tribunal concurs. The tribunal finds that the Quinte Conservation Association, through the Napanee Region Conservation Authority Watershed Advisory Board, has acted in a wise manner to maintain a resource, albeit an altered resource, that is important to the Kennebec environment.

Issue 2: Does the application for the intrusion into Provincially Significant Wetlands for an extension of an existing airstrip meet the objectives of Provincial and Authority policies regarding the maintenance and protection of such lands?

The Provincial Policy Statements for which the tribunal must have regard, were issued under the authority of Section 3 of the Planning Act, May 1996. Section 2.3 of the 1997 Provincial Policy Statement outlines the Natural Heritage policies which deal with wetlands. Section 2.3.1. indicates that development can take place in significant wetlands and in fish habitat areas in the Canadian Shield:

"if it has been demonstrated that there will be no negative impacts on the natural features or ecological functions for which the area is identified. "

The tribunal accepts this statement as an important provision, but also notes the policy set out in Section 2.4. of the Provincial Policy Statement which expects a protection or enhancement of the quality and quantity of ground water and surface water as well as the function of sensitive ground water recharge, discharge areas, aquifers and headwater areas.

The Goals outlined in the Wetlands Policy Statement (May 1992) reiterate the Policy Statement, and seek

  • To ensure that Wetlands are identified and adequately protected through the land use planning process;
  • To achieve no loss of Provincially Significant Wetlands:

and as an Objective, seek

"to ensure no loss of Wetland Function of Provincially Significant Wetlands in the Boreal Region." footnote 5 [5]

A statement in the Forward to the Manual of Implementation Guidelines for the Wetlands Policy Statement dated November 1992, indicates that the guidelines were not meant to be rigid, but that the approach taken should reflect the intent of the Provincial Policy Statement. The tribunal accepts that the policy's words do provide flexibility in reviewing and deciding the issues, but notes that individual approaches are acceptable as long as the goals of the policy are met. The last paragraph on page 27 of the Manual reinforces this position:

"The objective of this policy is to prevent degradation."

This implies that the management and retention of the wetlands is a priority of the province and any intrusion must be carefully and thoroughly evaluated whether south and east of the Canadian Shield or in the Boreal area itself. The tribunal, believes that through the enactment of the policy statements, the province accepted significant wetlands as a major concern in the natural resource field. This is, of course, the main concern of conservation authorities, who do not need encouragement to be concerned about our natural resources. In fact, the standards they apply to section 28 applications may be far more rigorous than contemplated by the Provincial Wetlands Policy Statement, but that policy does give them the authority to do this.

The tribunal views the flexibility offered by the Policy in the Boreal area as not so much the loss of the actual wetland area, but the possible loss of its function, which differentiates the two parts of Ontario. There has been an extensive loss of wetlands in the south due to urban development, while the geologic condition of the north has limited development opportunities. With the opportunity given "to develop policies which protect these natural heritage features and areas," footnote 6 [6] Qunite Conservation has adopted Policies and Procedures to include the protection of wetlands/swamps/fens as part of their mandate. (Ex.3-2). Section 3.3.-b (2) states:

More specifically, the fill lines have been established to:

2) Delineate wetland areas. Control of filling in wetlands may be necessary since they serve as natural flood storage reservoirs. Additionally, filling of wetlands can have a variety of environmental impacts including degraded surface and ground water quality.

In addition, the Napanee Region Conservation Authority, as part of Quinte Conservation, adopted Ontario Regulation 160/90 which states in Section 3 that:

No person shall,

(a) construct any building or structure or permit any building or structure to be constructed in or on a pond or swamp, or in any area susceptible to flooding during a regional storm. (p.135)

Ms. Hartley confirmed that the Baker property is within the Canadian Shield area described in the Wetlands Policy. She also described a wetland as a swamp, a word that is used in the Napanee policy statement. The tribunal accepts these policies of Quinte Conservation as relevant to its decision.

Mr. Snetsinger provided the tribunal with succinct information regarding the process and studies that led to the designation, by MNR, of part of the Baker lands as a Provincially Significant Wetland. The Wetland Data Record for the Kennebec Complex, tells the story of the evaluation process required by the province before any provincially significant designation is applied (Ex. 3-7). The area in question is a wetland forming a part of the overall complex, labeled the Kennebec Complex.

Both Mr. Snetsinger and Ms. Hartley provided details of what constitutes a wetland with regard to the required habitat of sensitive plants and fish. Photographic evidence showed clearly the presence of standing water and site visit information confirmed the spongy nature of the area throughout a great part of the summer season.

It is clear to the tribunal that a provincially significant wetland exists on Mr.Baker's land. It also is clear to the tribunal that anything that degrades or destroys this wetland can affect the overall Complex and Kennebec Lake. The tribunal finds Mr. Merriam's statement significant that this wetland on the Baker lands provides the last chance to influence the water quality in the area before actually entering Kennebec Lake. This fact is also acknowledged as a serious concern for the residents of the area.

Further, the impact of any disruption of the land, either by moving fill around from the floodplain or moving fill into the area from an outside source, could be potentially hazardous to the health of the wetland and the lake. The tribunal cannot accept Mr. Baker's suggestion that it would be safer to use the existing floodplain soil.

The tribunal is certainly persuaded that the project would lead to a further degradation of Kennebec Lake through the increase in the presence of the polluting nutrients that are leached or escape as runoff through the disturbed wetland and channel into the lake. This will lead to a reduction in water quality and a degradation of the fish habitat of Kennebec Lake.

Therefore, the tribunal finds that the Baker proposal does not meet the objectives of either the Provincial Policies nor those of the Quinte Conservation Authority.

Conclusions

The tribunal's examination of this application focused the issues on the policies of the Province and those of Quinte Conservation. It was clear that all these policies would be contravened by the proposal. In the end, it was obvious that the slight increase in safety for airplanes that would be provided by the proposed extension of the runway does not provide sufficient reason to allow a project that could add to the increasing degradation of the wetland and Kennebec Lake. At some point, the environment needs to be protected for both the residents and for nature's habitats.

The tribunal finds that the application to extend a runway in a floodplain area as well as in a provincially significant wetland is not supportable. Unlike the evidence provided by the respondent, the appellant was not able to provide any evidence that could be considered as meeting the burden of proof. As a result, the tribunal will order that the appeal by Mr. Baker be refused.

Further, the tribunal finds that no costs shall be paid by either of the parties to this appeal.