Need for Policy to Protect the Oak Ridges Moraine
In March 2000, two EBR applications were submitted requesting a review of the need for a new policy, Act or regulation to effect a long-term strategy to protect the Oak Ridges Moraine (ORM). One application was submitted by the Federation of Ontario Naturalists and the Save the Oak Ridges Moraine Coalition. The other application was submitted by two City of Toronto councillors. Both applications were sent to the Ministers of Municipal Affairs and Housing, Natural Resources and Environment. Because the two applications were similar, and all six files were treated as one by the ministries in a single response, they are reviewed here together.
The applicants asked for immediate implementation of the following short-term measures:
- formal endorsement of a report prepared for the Ontario government by a multi-stakeholder group made up of ministry staff, municipalities, environmental groups, and others, entitled the Oak Ridges Moraine Strategy for the Greater Toronto Area: An Ecosystem Approach for Long Term Protection and Management (1994 Draft Strategy).
- a temporary moratorium on new development within the Oak Ridges Moraine.
They also asked for review of the following options for long-term protection of the Moraine:
- enactment of new legislation to protect the Oak Ridges Moraine; or
- designation of the Oak Ridges Moraine as a Planning Area under the Ontario Planning and Development Act; or
- creation of an area-specific provincial policy statement for the Oak Ridges Moraine.
Along with any other long-term measures to protect the Moraine, the applicants also requested creation of a provincial land acquisition program to purchase key properties along the Oak Ridges Moraine. The applicants contend that the existing land use planning laws and policies are inadequate to safeguard the ecological integrity of the ORM for several reasons, and they submitted substantial evidence with their applications. The supporting evidence shows that the province’s 1991 Implementation Guidelines – Provincial Interest on the Oak Ridges Moraine Area of the Greater Toronto Area (1991 ORM Guidelines) were intended to be an interim measure while a long-term strategy was developed. The applicants included a Draft Strategy developed in 1994 as evidence of the work that had been undertaken toward a long-term strategy.
The applicants cited a number of existing studies as evidence of the environmental significance of the Moraine and the potential harm to the environment. Technical and scientific studies included the background studies prepared between 1991 and 1994 for the 1994 Draft Strategy, as well as more recent geology, hydrogeology, groundwater, natural heritage and planning studies. The 1998 Richmond Hill Corridor Study and the 1999 Report by the Regions of Peel, York and Durham also provided a “state of the Moraine” report for the period from 1991 to 1999, describing changing land use patterns and increasing development activity.
The applicants also included a number of Ontario Municipal Board (OMB) decisions in their applications to demonstrate the uncertain status of the 1991 ORM Guidelines. The decisions show that the OMB panels have taken a wide range of approaches to the 1991 ORM Guidelines in making decisions on development proposals. The applicants also noted that statements supporting the need for a coordinated strategy were contained in the 1994 Draft Strategy, the 1998 Richmond Hill Corridor Study, the 1999 Report by the Regions of Peel, York and Durham, a submission of support by 450 scientists, and letters written by other municipalities such as the Region of Halton and by the Greater Toronto Services Board.
On May 29, 2000, the Ministers of Municipal Affairs and Housing, Natural Resources and Environment denied both applications for review. In a brief letter, the ministers said they took into account several factors:
- The 1991 ORM guidelines have been incorporated into the Official Plans for each Region covering the Moraine and remain in effect.
- The Planning Act was revised, and the Provincial Policy Statement (PPS) issued, in 1996, both with public input.
- The PPS must be reviewed by 2001.
- Municipalities must take into consideration the 1991 ORM Guidelines and the matters of provincial interest set out in the PPS, and are accountable to local residents for planning decisions they make.
The ministers stated: “In closing, the provincial government is committed to the environmental integrity of the Oak Ridges Moraine. We believe the guidelines, policy and legislation comprising the current land use planning system in Ontario provides that protection. Since this sound provincial and municipal framework of policy, guidelines and legislation exists, each of us does not believe that a further review is warranted.”
ECO Comment
The ministers’ response to these EBR applications was far from adequate. The ministers disregarded the evidence submitted in support of the applications and did not respond to all the issues raised, such as the request for a land acquisition program. Defending the existing policy framework, the ministers simply dismissed the requests for review in their entirety.
For example, the ministers stated that the 1991 ORM Guidelines remain in force, but ignored the evidence suggesting they are not adequately protecting the Moraine, and the fact that the Guidelines were never intended as a long-term solution. The applicants also described new scientific and technical information amassed since 1991, as well as mounting evidence of development pressures and environmental harm. The ECO concludes it was unreasonable for the ministries to rely on the existence of the 1991 ORM Guidelines as a rationale for not undertaking a review.
The ministers also suggested that municipalities and voters are responsible for protecting the Moraine through local planning decisions. This statement is deceptive and factually incorrect. In maintaining that municipalities have the tools needed to protect the Moraine, the ministers failed to acknowledge the municipalities’ stated concerns. In a 1999 report, the Regions of York, Peel and Durham, the three upper-tier governments covering most of the Oak Ridges Moraine, concluded that municipal Official Plans cannot deal in a substantive and consistent manner with issues that extend beyond their boundaries. They also warned that continuing to consider development applications under the existing Official Plans and the 1991 ORM Guidelines would not provide long-term protection of the ecological integrity of the Moraine as a whole.
The ministers also failed to acknowledge the significant role of the Ontario Municipal Board (OMB), ignoring evidence that when municipalities do try to limit development, their decisions can be appealed by developers to the OMB. Since changes to the Planning Act in 1996, developers can also appeal directly to the OMB in some situations even before municipalities make final decisions. If the OMB overrules the decision of both levels of municipal government, there is no accountability to local residents.
The applicants provided examples of past OMB decisions to illustrate the uncertain status and ineffectiveness of the 1991 ORM Guidelines, and made a strong case that ad hoc review on a case-by- case basis by the OMB is unsatisfactory, as it is limited to the circumstances directly associated with each particular development proposal. Unlike court decisions, OMB decisions have no precedential value. Therefore, one decision granting ORM protection need not be followed the next time a similar development proposal is decided. At the time of this writing in April 2001, there were many individual hearings scheduled or under way across the Moraine. The hearing process is extremely costly, and much time is spent by OMB members and parties, including, in some cases, provincial ministries, trying to interpret anew each time the provincial policy on the Moraine.
It is commendable, as the ministers stated in denying these EBR applications, that “the provincial government is committed to the environmental integrity of the Oak Ridges Moraine.” But in the absence of a long-term strategy or statement of provincial policy on the Moraine, there is no common understanding of what level of protection is necessary to ensure “environmental integrity.” The province must clarify its policy on the Oak Ridges Moraine.
In summary, the ECO finds that these applications contained compelling evidence and strong arguments in support of the need to undertake a review. The ministries’ response was inadequate, and failed to convince the applicants or the ECO that a review was not needed. The evidence the ECO has examined in relation to land use planning on the Moraine strongly suggests that the ministries should have undertaken the requested review.
There have been recent developments on this issue. For ministry comments, see page 207.
| Recommendation 12:
The ECO recommends that MMAH, in consultation with other ministries and the public, develop a comprehensive long-term protection strategy for the Oak Ridges Moraine. |
| This is an article from the 2000/01 Annual Report to the Legislature from the Environmental Commissioner of Ontario. |
Citing This Article
Environmental Commissioner of Ontario. 2001. "Protecting the Oak Ridges Moraine." Having Regard, ECO Annual Report, 2000-01. Toronto, ON : Environmental Commissioner of Ontario. 132-135.
