With the oncoming spring, the fragile landscape of Thundering Waters is now ringing with the joyous songs of chorus frogs and spring peepers. Less happily, however, the melting snow is exposing the extent of the damage wreaked upon fifty acres of this threatened five hundred acre system. The damage is being investigated and prosecuted by Niagara Peninsula Conservation Authority (NPCA).
Also clearer now are some of the tactics deployed by the Local Planning Appeals Tribunal, (LPAT) which rubber-stamped a City of Niagara Falls decision to permit development on the site. According to LPAT, the sudden clearance of habitat for declining bird species such as the black billed cuckoo, and the provincially rare orchid, the Great Plains ladies'-tresses, was not possible. LPAT hearing officer Sharon Vincent ruled that, “Mr. Bacher’s interpretation appears to be based on a lack of comprehension of the rigours of the planning process which will still be ahead before any aspect of the site can be developed.”
The melting snow covering the wreckage in Thundering Waters is also revealing the subterfuge which prevented expert witnesses to be called to testify at the LPAT hearing on its fate. The Case Management Conference (CMC) on Thundering Waters presided over by Sharon Vincent was held on March 16, 2019. Here, attempts to call witnesses in areas such as herpetology, entomology and ecology were refused.
During the CMC, Vincent stated that the legislation she operated under, the Local Planning Tribunal Act, did not permit parties to call expert witnesses. At the time of this CMC, Dr. Bacher was unaware of a court ruling over a month earlier in an Ontario Superior Court of Justice (Divisional Court), that such an interpretation of the legislation was incorrect.
The case, called Craft et al. v. Toronto on February 15, 2019, maintained that parties to LPAT hearings could call witnesses. Given the earlier refusal of LPAT to issue a summons to a District Planner of the Ministry of Natural Resources and Forestry (MNRF) in the Thundering Waters case, it was astonishing that LPAT did not make a serious effort to defend its interpretation. The Divisional Court found that LPAT meekly maintained that the legislation was “ambiguous.”
Dr. Bacher became aware of the Craft et al. v. Toronto decision following a ruling by LPAT on June 14, 2019. This case is termed Bice Builders v. Niagara on the Lake. Here LPAT granted developers the right to call witnesses in a hearing to present a market study to justify their development.
As a result of inconsistency of rulings, a request has been made to the Auditor General of Ontario to conduct an investigation of LPAT. It clearly put forward two different interpretations of its act. One was to deny expert witnesses testimony on forest health and succession, another to hear testimony of a market study to justify development.
Please send your letter below today to the Auditor General urging an investigation of LPAT based on the Thundering Waters Appeal of Amendment 128 to the City of Niagara Falls.
Thank you for taking action to protect Thundering Waters Forest.