The Ontario Stone, Sand and…

The Ontario Stone, Sand and Gravel Association (OSSGA) appreciates the opportunity to provide feedback on the proposed policy updates under the Aggregate Resources Act.

Based on our review, we generally find that the policy proposals reflect previously approved changes to the ARA framework, and provide updated guidance and clarity for new licence applications.

We are pleased to provide the following comments on specific elements of the policy proposals for your consideration.

Cultural Heritage Report

As discussed extensively with MNR over the last couple of years, the approach to avoidance and protection areas for archaeology in new applications is of significant importance and concern to OSSGA and its members.

In theory, the preferred way of assessing archaeology is to have all assessments and clearances completed as part of the licence application. However, this is no longer feasible as costs to undertake Stage 3 and 4 Archaeological Assessments are exorbitant. Applicants are reluctant to make those investments with no guarantee of securing a licence once complete.

The practice endorsed by OSSGA is for extraction to commence in the licensed areas of the site – while avoiding and protecting archeological areas as identified – until they are cleared.

This approach that has been discussed with MNR and has been incorporated to a degree in the draft Cultural Heritage Policy in so far as the new policy states that remaining archaeology areas can be left within the licence and extraction areas with appropriate protections included on the site plan per acceptance from MCM. Provincial guidelines on archaeology allow for temporary avoidance of an archaeological site prior to full excavation, and generally the requirement for temporary protection is achieved with establishing a buffer and fencing.

This approach allows applicants to move forward with their licence application and complete the remaining archaeological work as extraction proceeds through the site, or in some cases, during the licence application review process.

The mechanism for which protections are removed from the site plan for cleared archaeology areas must be clearly understood and free from ambiguity. The technical studies and consultation process completed through the licence application must be taken into account such that applicants are not forced to redo duplicative and redundant processes that add costs and complexity.

The draft policy indicates that a letter from MCM confirming the archaeological assessment recommendations be included with the licence application for it to be deemed complete. MNR should be aware that the timelines for MCM issuing a clearance letter can be extensive. In a recent application, OSSGA was made aware that MCM indicated to a licence applicant that a response would be provided in one year. MNR should be discussing this requirement directly with MCM so they are aware of the importance of expedient reviews for licence applications or, preferably, MNR should remove this as a requirement in deeming the application complete, especially in the case where the archeologist report has deemed that no further action is warranted.

Enclosed we have provided our suggested revisions to the Avoidance and Protection section of the draft Cultural Heritage Policy. We would welcome further discussions with MNR on this matter.

With respect to the archaeology and cultural heritage checklists that are required for licence applications, it should be made clear that the area to be assessed are the lands proposed to be licensed to reduce any confusion.

Matters to be Considered in the Issuance of a Licence

It is our understanding from MNR that the changes made to this policy are largely administrative in nature. However, we would note that the Section 12 matters are to be considered by the Minister in issuing a licence and that these are specifically reviewed and assessed by the Tribunal where a licence is referred to a hearing.

2.2 (b) Effects on Nearby Communities

The proposed policy notes that related approvals may be required under the Clean Water Act, Environmental Protection Act and Ontario Water Resources Act to address off-site effects such as dust, noise and impacts to water. For additional clarity, applicable conditions in subsection 0.12(1) of O. Reg. 244/97 could be referenced.

2.3 (c) Comments from Municipality

The policy states that recommendations from the municipality will be carefully considered by MNR and may be included as site plan conditions.

We recommend that a clause be added to the end of this statement such as “except where it conflicts with the ARA”. It is OSSGA’s observation that some municipalities are attempting to regulate aggregate operations, either directly or indirectly, contrary to the ARA. This would ensure it is very clear that such recommendations may not be appropriate or permissible to add to a site plan.

2.6 (f) Effects on Agriculture

A note is added to this section that states an applicant who does not propose to restore a site back to agricultural condition must obtain clearance from the Ministry of Agriculture, Food and Agribusiness.

PPS 4.5.4.2 specifically outlines where complete agricultural rehabilitation is not required for aggregate applications. It does not require clearance from OMAFA. If this becomes a requirement, MNR must communicate this directly with land use planning staff from OMAFA so that they are aware of what they will need to provide in writing for licence applications that would be subject to this requirement.

2.7 (g) Planning and Land Use

As the section addresses planning and land use matters, Section 66 of the Aggregate Resources Act should be referenced as is the current approach in ARA Policy Manual AR 2.01.11. As previously noted, OSSGA is concerned about recent municipal attempts to override the ARA and it would be important to emphasize this foundational aspect over the Provincial management of aggregate resources within this section.

Regarding the statement that MNR must receive comments from a municipality or MMAH regarding whether the site needs to be rezoned, MNR must recognize that the legislative test is whether zoning prohibits the site from being used for the making, establishment or operation of pits and quarries. If a municipality does not provide comments under the ARA, which is not infrequent, would that then delay the issuance of a licence? It should also be noted that some municipalities pre-zone aggregate sites meaning that the zoning is already in place prior to the licence application being submitted. MNR should be able to make a determination on the zoning permitting the use based on information provided by the applicant.

2.9 (i) Quality and Quantity of Aggregate

This policy states that applicants must provide information to determine whether there is sufficient quality and quantity of material to justify licensing the site. This section should also reference PPS 4.5.2.1 that as much of the mineral aggregate resources as is realistically possible shall be made available as close to markets as possible, and that demonstration of need shall not be required. This policy should be referenced and considered by MNR in the context of the quality and quantity of aggregate.