Provincial tribunal rules contentious quarry can proceed

Province has done what needs to be done to provide affordable aggregate to taxpayers, says owner

[UPDATE: Oct. 8, 2020] After over a decade of dispute, a limestone quarry is under construction at Lilyfield in the RM of Rosser.

Owner Colleen Munro expressed relief and satisfaction — “… can I say finally?” she told the Co-operator — while nearby residents were decidedly displeased.

“Where is the justice here?” wrote Karen Kaplen, who lived across the road from the site.

For Munro, this brings an end to about five years of repeated application and denial, a court case, and finally an appeal to the Municipal Board of Manitoba.

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For some of the residents who formed the core of the opposition, it’s a loss after over a decade of repeated protest.

In a written decision dated September 17, the Municipal Board ruled to approve the quarry application following public hearings on July 27 to 28 and August 18.

Why it matters: The Municipal Board’s expanded powers will dramatically change local governance for rural Manitobans.

The board upheld a consent to conditions agreement the RM and Munro had signed prior to the hearing. The agreement includes nearly 16 pages of conditions covering issues like water management, blasting and sound, dust, and land rehabilitation.

This is the first case of its kind to come before the board under changes to the Planning Act in 2018, which allowed aggregate quarry and large-scale livestock operation owners to appeal to the provincial tribunal if a municipal government denied their application.

‘Encourages development’

Colleen Munro.
photo: Geralyn Wichers

“I believe the province has done what needs to be done,” Munro said. “It’s representing all the people within Manitoba.”

Munro said aggregate is a valuable resource in Manitoba, and when that resource is available closer to where it’s needed that saves taxpayers money.

“Everyone wants their roads fixed, but nobody wants quarries opened,” she said. “It just doesn’t go together.”

Over the years, multiple owners have applied to build a quarry on the site but were denied. Nearby residents objected based on concerns it will affect their water; create excessive dust, noise and traffic; and otherwise disturb their quiet, rural neighbourhood.

The project was at a standstill until 2018 when, under Bill-19, changes to the Planning Act allowed owners of aggregate quarries and large-scale livestock operations to appeal to the Municipal Board if a local council denied their application.

“At least we have the option,” Munro said, adding she wanted to thank the province for encouraging development.

“You can’t not have growth. You can’t practise, ‘oh I was here first,’” she said. ““I think that when municipalities start to listen to a few NIMBYs (not in my backyard) I think that is a problem.”

Quarry plans had met the mining and quarry regulations and experts had shown that there wouldn’t be water issues, she said. The RM of Rosser didn’t dispute this at the appeal.

For Karen Kaplen, development comes at too high a cost.

Her great-grandparents and grandparents owned that land from the late 1800s to the 1940s, she said.

“I think it is totally wrong that this individual gets to destroy this beautiful, natural tree growth, home of wildlife and some of the finest farmland in the country,” she said. “You can’t eat gravel.”

The consent to conditions agreement requires the quarry to retain existing vegetation and wildlife habitat “wherever possible.”

Valerie Gough.
photo: Geralyn Wichers

*“I am beyond sad, frustrated, and angry,” wrote nearby resident Valerie Gough on Facebook. Gough told the Co-operator she and her husband moved to the area about three years ago with no knowledge that a quarry was proposed across the road.

She said the quarry would ruin the beautiful view and “peaceful rural evenings.”

“We trusted in the government body to make a decision that was best for our area,” she wrote. “And it failed us.”

Nineteen residents spoke at the hearing (this included some family members or residents of the same property).

Hearing mishandled: RM

The way the hearing proceeded was concerning, Rosser Reeve Francis Smee told the Co-operator.

“There seemed to be confusion from the outset as to what type of hearing this would be, whether or not the public would be allowed to present before the board,” she wrote in an emailed statement.

Within the hearing, the confusion continued, said Smee. Residents were given time limits in which to present (many were allowed to go over the limit, the Co-operator observed).

“These restrictions seemed to be directed only to the members of the public which, in my view, lacked equity,” Smee said.

Brynn Kaplen, who lives a few hundred yards from the quarry site, said residents were poorly notified of the hearing date. She was notified by email after the deadline to send in submissions had passed, she said.

She learned about the speaking time limit at the hearing, she said. The letter she received contained rules for the hearing but didn’t mention a time limit.

On the second day of hearings, acting board chair Tom Raine halted proceedings and requested lawyers from both sides give written closing statements giving particular attention to the precedent to be set at the hearing.

Raine asked for advice on what the standard for review by the Municipal Board should be, and what the board’s jurisdiction is to accept, modify or reject agreed-upon conditions.

“This was very surprising and also very concerning,” said Smee. This instruction added significant costs, she said.

“The Municipal Board should, at very least, have been fully apprised of its duties and responsibilities prior to the hearing and be accountable for any associated costs,” Smee said.

Administrative law professor, Gerard Kennedy told the Co-operator the timing of the board’s request was “a bit unusual.”

As it’s the first appeal under the new amendments, he chalked the timing up to a board trying to get its bearings.

“(This) makes it a lot less concerning than it otherwise would be,” Kennedy said.

Brynn Kaplen told the Co-operator that residents are requesting the RM of Rosser hire a full-time bylaw officer to provide better oversight of the quarry. She added the RM said she could report complaints, but said, “I do not want to be put in that position.”

Smee said the RM shares its residents’ concerns and said an aggregate bylaw, established in 2016, would ensure that these are addressed.

She added that a community committee will be created to address ongoing concerns from residents.

For more analysis of the decision and the new role of the Municipal Board, see the next issue of the Manitoba Co-operator.

*Update: A previous photo of Valerie Gough was incorrectly posted. We regret the error and apologize for any confusion.

About the author

Reporter

Geralyn Wichers

Geralyn Wichers grew up on a hobby farm near Anola, Manitoba, where her family raised cattle, pigs and chickens. Geralyn graduated from Red River College’s Creative Communications program in 2019 and was previously a reporter for The Carillon in Steinbach. Geralyn is also a published author of science fiction and fantasy novels.

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