The recent tribunal which approved the contentious Lilyfield Quarry may have set a precedent that will put local governments at a disadvantage.
The appeal of a decision to reject the project by the RM of Rosser was the first of its kind under the newly expanded mandate of the Manitoba Municipal Board.
New provisions in the Planning Act now allow owners of aggregate quarries and large livestock operations to appeal to the board if a municipal government denies their application.
As the first, the decision will likely set precedent for further cases, and set the expectation that the board will essentially retry the applicant’s case.
The board had essentially two options as to how to conduct the hearing, Gerard Kennedy, a professor of administrative law at the University of Manitoba told the Co-operator.
The board could judge the RM of Rosser’s decision by a standard of reasonableness — only to be overturned if the municipality’s decision is deemed unreasonable — or the board might judge it on a standard of correctness, essentially giving the matter a new hearing, which is the option it chose.
“It emphasizes that such appeals before the board are fresh hearings where further evidence can be presented and no legal deference is owed to the municipality,” Kennedy said.
“You have to say, ‘point to the evidence as to why something should or should not be developed’ and not rely on ‘we just don’t like the development,’” he added.
But another observer says that may mean rural councils suddenly find themselves thrust into a high-stakes fight against sophisticated opponents.
Paul Thomas, a professor emeritus of political studies at the University of Manitoba, said this will mean new challenges for municipal councils.
Developers, who know they can get a return on their investment, are prepared to spend a lot of money upfront to prove their case said Thomas. Rural municipalities don’t always have a deep well of funds to draw on (in this case, the RM of Rosser said it spend hundreds of thousands of dollars to have experts verify the facts of the quarry plans).
Developers may also have built political connections over time.
“I think they’re well-heeled and well-connected,” said Thomas. “That gives them an advantage sometimes.”
Rosser residents made up most of the opposition at the hearings. Nineteen people spoke decrying the quarry (some represented the same property or family). They outlined concerns related to water quality, environmental effects, traffic safety and negative effects on local small businesses.
Residents and Rosser Lawyer Orvel Currie discussed criteria in the Planning Act that a development, “not be detrimental to the health or general welfare of people living or working in the surrounding area.”
Currie sought to differentiate between the technical correctness of the quarry plans and potential social and economic damage to the residents, who wished to maintain their quiet neighbourhood.
In its decision, the board acknowledged residents’ presentations as sincere but ultimately sided with rebuttal evidence from the developer.
Social and economic loss is hard to quantify, said Kennedy. While subjective evidence counts for something, it “might not count for a lot,” he said.
To argue social or economic damage, best to bring in experts and quantify the issue as much as possible, said Kennedy.
“We would need more acute evidence on how the quarry would devalue the property.” This could include being less able to enjoy the land.
For local governments, it’s likely to mean a higher requirement to document the reasons for their decisions if they want to avoid having them overturned on appeal.
When the RM of Rosser council rejected the developer’s proposal on Nov. 19, 2019, they gave no written reason why.
Kennedy said this made it difficult for the board to give respectful consideration to the RM’s original decision.
“In the future, municipal councils may think it advisable to explain why they are rejecting such applications.”
In closing statements August 18, lawyers from both sides asked the appeal be judged as a new hearing. In its decision, the board agreed.
“The board concludes that, in its interpretation of the statutory provisions, an appeal… will be conducted as a new hearing,” the decision says.
“Were this not the case, the parties to the appeal should have no ability to adduce evidence, call witnesses, and there would be no requirement of the Board to ‘consider all evidence’ in making its decision.”
The second precedent set is that parties are expected to point to actual evidence that warrants a particular result, said Kennedy. He noted the board talks a lot about the lack of evidence the RM provided versus the significant evidence from Munro’s team.
The board notes, “The Municipality presented no evidence on any of the issues set out in the Consent Agreement” (referring to a list of conditions the two parties had signed prior to the hearing). It adds that the RM had its own experts review the developer’s findings and could not refute them.
However, Kennedy said the board has not set a pro-development precedent.
“The fact that the municipality didn’t lead evidence, or didn’t lead significant evidence, in my view illustrates that future cases can definitely be distinguished on the facts,” he said.
The board also opted to uphold the 16-page consent to conditions agreement both parties had signed before hearings began.
The document outlines requirements for the quarry, including hours of operation, rules on blasting, water-management guidelines, a rehabilitation agreement, and an agreement to haul water for two nearby dairy farms if their supply is interrupted.
The board acknowledged these conditions were robust and could be a useful guide for subsequent applicants and councils on what conditions to impose on aggregate quarries.
The board decided not to impose further conditions. The RM had requested that safety improvements be made at the intersection of Provincial Trunk Highway 6 and Provincial Road 236 before the quarry could proceed, but the board noted the municipality didn’t provide expert evidence that supported those requirements.
The consent to conditions agreement was likely a double-edged sword, Kennedy said. When the two parties are so close together, the board is “pretty unlikely to do something radically different.”
Kennedy said if you go before the board and say you don’t oppose the quarry subject to these conditions, “you’re unlikely to be told, well the board is going to reject the appeal anyways.”
From the municipality’s perspective it was likely better to have approval on those conditions than lesser ones, he added.
However, some residents did know about these conditions or did not feel they went far enough the board said.
The RM and the developer signed it on July 9 and wrote the conditions based on information gathered from residents at previous municipal hearings and presentations, said reeve Francis Smee.
However, doing the deal privately takes away the ability for residents to see the negotiation, said Thomas. “All you see is the final product.”
This could be problematic depending on a person’s view of municipal democracy.
“At the end of the day someone has to decide,” said the U of M’s Paul Thomas. Residents could take the view that they elected the council to make tough decisions like this, he added.
One has to be realistic about the political background of board members, Thomas said.
He noted that traditionally the party in power appoints political friends to the Municipal Board. “That’s been a long-standing practice in Manitoba.”
The Co-operator previously reported that members of the board had connections to the provincial Conservatives. Board members Rick Borotsik and George Orle, with acting chair Tom Raine, heard the appeal from Lilyfield Quarry.
Borotsik was a Conservative MP from 1997 to 2004, and a Progressive Conservative MLA from 2007 to 2011. Orle is a lawyer who has acted on behalf of the Manitoba Progressive Conservatives. Tom Raine is the retired chief administrative officer for the RM of Macdonald.
“It doesn’t mean that everything will be done according to the government’s wishes,” Thomas said. “But you think about what the provincial government stands for. It stands for deregulation… it’s pro-development. It wants a light touch in terms of regulation of the environment.”
While the board tries to be objective, said Thomas, “does that make it harder for them to say no to developers?”
Residents opposed to the quarry seemed to think so.
“We were afraid going in that the hearing was biased, and nothing that happened there changed our minds,” said Brynn Kaplen, who lives next to the quarry site.
“I am very upset by the Conservative Party of Manitoba and with the Municipal Board, whose members are appointed by the provincial government,” said Karen Kaplen, who also lives nearby.
“This whole processed [sic] was fixed before it even started,” wrote resident Valerie Gough in a Facebook post. “We trusted in the government body to make a decision that was best for our area. And they failed us.”
“You have to make the assumption that all or at least the majority of the people on the Municipal Board are there to regulate in the public interest,” said Thomas, “but from the outside, looking at the connections that exist you worry that there may be some favouritism there, and it’s impossible to prove.”