Sand Excavation: When a “Pit is not a “Pit”
In the spring of 1996, the owners of a large farm property in eastern Ontario sent a letter to the Ministry of Natural Resources (MNR) seeking permission to remove some “sand hills” from their property without obtaining an aggregate license. The owners stated that the purpose of the extraction was to “improve the agricultural value” of the property.
Normally, under the provincial Aggregate Resources Act (ARA), any extraction that constitutes a “pit” requires an aggregate license. A “pit” is defined in the ARA as any land from which unconsolidated aggregate is being excavated, unless it meets one of the two exceptions set out in the Act, namely:
- the land is excavated for a building or structure on the excavation site; or
- the minister (or an authorized delegate) is of the opinion that “the primary purpose of an excavation is not for the production of aggregate” and has issued an Order declaring that the excavation is not a pit.
The ARA does not establish any other exceptions.
In this case, however, MNR staff concluded that the extraction was not a “pit” because the primary purpose of the extraction was not for aggregate production, and therefore determined that the proponents did not require a licence. The ministry did not issue an exemption Order.
Initially, the ministry provided an exemption for up to five years or 5,400 tons of sand, whichever came first. MNR clearly stated that beyond this, the proponents would require a licence. However, in 2001, when the exemption should have expired, MNR apparently told the proponents that they could continue extracting sand from their property without a licence because the ARA' did not apply to their excavation.
By 2004, the proponents were still removing aggregate from their property, and members of the public were raising concerns. MNR staff visited the property in October 2004, but again concluded that the excavation was not a “pit” and the requirement for an aggregate license did not apply.
In October 2008 – over 12 years after the extraction had begun – an MNR Aggregate Inspector visited the property with a specialist from the Ministry of Agriculture, Food and Rural Affairs (OMAFRA) to determine if the ongoing extraction was improving the agricultural value of the land. OMAFRA found that there was “no change to the soil classification other than providing higher moisture content. It was also observed that there were some locations where it appeared to be too wet to plant which may be a result of extracting too deep or the wet year we had.”
OMAFRA’s observations suggest that very little, if any, agricultural improvement had resulted from the extraction. Nonetheless, MNR allowed the proponents to continue extracting sand, but only for a defined area of the property. MNR told the proponents that extraction beyond this limit would require an aggregate licence.
In June 2009, two applicants requested an investigation of this unlicensed sand removal. The applicants alleged that, over the last 13 years, hundreds of thousands of tons of sand have been extracted from the property without an aggregate license, contrary to the ARA. While it is not known exactly how much sand has been extracted, MNR estimates that, as of October 2008, approximately 163,000 tonnes had been removed from the property.
The applicants also alleged that the proponents’ excavation has caused a number of environmental impacts, including impairment of the local creek through excessive siltation and degradation of the proponents’ farmland to the point that the land can no longer be used for agriculture (For more information on this issue and the ministries’ response, see Section 6.2.2 of the Supplement to this Annual Report.)
As of February 2010, extraction was still ongoing.
Ministry Response
MNR denied this application for investigation. The ministry stated that it is of the view that the primary purpose of the excavation is for agricultural purposes. As the primary purpose is not aggregate extraction, MNR does not consider the excavation to be a “pit.” Therefore, the proponents did not require a licence and cannot be considered to have contravened the ARA.
MNR also stated that a Minister’s Order declaring that the excavation was not a “pit” was not necessary as an Order is only required “where there is a dispute between MNR and the relevant municipality” about whether the excavation is a pit. As support for this position, the ministry referred to MNR Policy A.R. 5.00.05 (Determination that Excavation is not a Pit or Quarry), which states that an Aggregate Inspector may determine that an excavation is not a pit if the “primary purpose” of the excavation is not for the production of aggregate. This policy further states that a Minister’s Order is generally not required to carry out this exemption.
ECO Comment
The ECO is very disappointed with MNR’s response to this application. While the ECO accepts MNR’s position that the proponents have not contravened the ARA (precisely because MNR determined that the ARA does not apply, and thus no contravention is possible), this case has highlighted some serious issues with the ministry’s policies and practices in exempting excavations from the ARA.
First, the ECO has significant concerns with MNR’s Policy A.R. 5.00.05. This policy appears to modify the legislative definition of “pit” by creating new and different exemptions than those set out in the Act. The policy suggests that an Aggregate Inspector may exempt an extraction from the ARA without an Order. This seems contrary to the Act, which explicitly requires that an Order be issued in order to establish the “primary purpose” exemption. Whereas an Order provides certainty of process, the informal nature of the exemption as set out in the policy provides less transparency for the public, as well as a weaker process for issuing and overseeing exemptions.
A policy document simply has no authority to override legislation. Accordingly, the ECO strongly encourages MNR to review Policy A.R. 5.00.05 and its implementation.
Second, even accepting that MNR staff may informally exempt an excavation where the primary purpose is not aggregate extraction, the ECO has serious concerns with MNR’s approach to determining the primary purpose of the excavation. It appears that the ministry simply relied on the proponents’ statements that the extraction was for agricultural improvement. The ministry did not seek supporting materials or independently verify the validity of the proponents’ claim. Even after 12 years had passed and more than 160,000 tonnes of sand had been trucked away, and even in the face of contrary evidence from OMAFRA, MNR continued to accept the proponents’ assertions that the extraction was for agricultural improvement.
Based on this case, it would appear that any proponent could merely state that their extraction was not for the purpose of producing aggregate, and MNR would allow them to remove large quantities of aggregate without a licence. The ECO believes that there needs to be more rigour before such a blanket exemption from the requirements of the ARA is provided. The ECO strongly encourages the ministry to review its policy and practices in excluding extractions from the purview of the Act.
Finally, the ECO notes that OMAFRA, while not directly responsible for the exemption, also bears some responsibility in ensuring that exemptions provided in the name of protecting or improving agricultural values are exercised appropriately. In Ontario public policy, agricultural activities are protected through many privileges; OMAFRA must ensure that these privileges are not abused.
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| This is an article from the 2009/10 Annual Report to the Legislature from the Environmental Commissioner of Ontario. |
Citing This Article:
Environmental Commissioner of Ontario. 2010. "When is a "Pit" not a "Pit"." Redefining Conservation, ECO Annual Report, 2009/10. Toronto, ON : Environmental Commissioner of Ontario. .
