Assault on Carolinian Forests in Bacher V. GR CAN Investments et al.

In Memory of Alicja Rozanska.

From John Bacher: 

Recently when I was reviewing the decision of the Ontario Superior Court of Justice in Bacher V. GR CAN Investments, I received grim news of brutal events in the Amazonian rainforest. This showed the similarity of the assaults of the woodlands of the Carolinian life zone, Canada’s most biologically diverse biome, with another critical cradle of species diversity on our planet. 

The grim news from the Amazon concerned the murder of the British journalist Dom Phillips, and a recently retired senior public servant of the government of Brazil, Bruno Pereia. Until a clash with the nefarious populist President of Brazil, Jair Bolsonaro, Pereia oversaw establishing reservations as forested Indigenous homelands and protecting them with law enforcement.  The President gutted budgets for these conservation efforts. 

Phillips and Pereia were killed by, as it now appears, a gang of three fish poachers. The poachers were hostile to Phillips’ and Pereia’s efforts to protect declining species by enforcing regulations, such as the Arapaima, one of the world’s largest freshwater fish. 

Outside of what are termed by the Canadian government as Indian Reservations, notably Walpole Island and Six Nations, the landscape of the species’ rich Carolinian zone is a virtual biological desert. Walpole Island for instance contains most of the surviving habitat of a Threatened iconic wildflower, the showy purple, Dense Blazing Star. It is beneficial to pollinators such as bees. This Threatened species is also found on the GR CAN lands in Niagara Falls which were subject to my request to the Ontario Superior Court of Justice for Leave to Appeal. 

The situation of Ontario reservations as the last stand of Carolinian biodiversity came about in the Victorian era through a lot of heroic effort by Native chiefs. The most famous of these was the Haudenosaunee Confederacy Chief, George Johnson. The leader of a dedicated force of Mohawk Forest rangers, he was the victim of three assassination attempts. 

Outside of what are labelled reservations, the biggest intact stretch of Carolinian habitats is in the Niagara Region, in the heavy clay forested wetlands of the former Lake Tonawanda. Lands of agricultural retreat, they are largely in the adjacent municipalities of Niagara Falls and Fort Erie. 

What the thin green band of environmentalists in Niagara Falls and Fort Erie communities are experiencing is intense pressure by developers is like the assaults faced by Mohawk rangers in the sleazy Gilded Age. The challenges faced by George Johnson were well expressed by his daughter Pauline, who was in her lifetime, Canada’s most accomplished performance artist. 

Pauline Johnson recalled her father’s battles. He would, “night after night” conceal himself “in the marshes, the forests, the trails, the concession lines, the river road, the Queen’s highway…. turning white liquor traders off Indian lands and fighting only as a young, inspired man can fight.” 

Today’s forest defenders patrol the councils of the Niagara Region, Fort Erie and Niagara Falls, Planning Act Public Meetings, the Niagara Peninsula Conservation Authority (NPCA), the Ontario Municipal Board (OMB), Local Planning Appeals Tribunal (LPAT), and most recently and disastrously, the Ontario Superior Court of Justice.  

In Bacher V. GR CAN,  a decision of Justice J. MacNeil recently hit me with a $20,000 ($8,000 to City of Niagara Falls, $12,000 to developer GR CAN) 
cost award. In making this decision MacNeil claimed my appeal was based on “generalized claims or allegations'', ignoring specific provisions of the Provincial Policy Statement (PPS). 

The appeal was based, as explained ably by legal counsel, Ian Flett, that the Woodland policies of the PPS were not being respected. This was since a provincially significant woodland protected by the PPS was identified for removal on claims of the EIS that they would lose their ecological function within four years.  

It was claimed in the EIS that within the next two to four years the woodlands currently protected by the PPS would be degraded. To quote from the study, it was “predicted that the cultural woodlands proposed for removal on the Subject Lands, will in the absence of management activities cease to be woodlands due to Emerald Ash Borer infestation and invasive species, (eg., Common Buckthorn).” In a similar passage it was claimed that the woodlands would vanish within five years in “these ash-dominated emerald ash borer affected areas.” 

Flett drew the attention of LPAT adjudicator Jatinder Bhullar to Figure 3 of September 2019, which mapped 6.8 hectares of what were defined as “Significant Woodlands Removed from Development.” The question of if these woodlands would persist into the future was basically a scientific debate. Bhullar, in oral remarks during the LPAT hearing however, mocked my letter of appeal by saying it read like a science essay. 

The GR CAN case shows how the work of environmentalist concerned for the Carolinian heartland involves torturous readings of Environmental Impact Studies (EIS) reports. These are paid for by the developers who seek to encroach upon the most biodiverse landscapes of the imperiled Carolinian life zone. 

It takes a lot of inspiration akin to that of the young Mohawk Johnson to persevere in Niagara Falls and Fort Erie battles. These take place in the face of measures, such as the recent struggle against the Canadian Motor Speedway (CMS) which was planned for Fort Erie but never constructed. 

Through the new Niagara Regional Official Plan, the former 829-acre Speedway development may become the location of a new shopping center on the Queen Elizabeth Highway. It would surround and degrade the Frenchman’s Creek, Provincially Significant Wetland complex, which in the CMS concept was to be slashed into by access roads.

The OMB in the past approved the CMS speedway based on a when a developer paid EIS, which proposed a realignment of what was promised to be a superior Miller Creek, whose headwaters was at the time based in a groundwater spring discharge pond. This area where the proposed motor racing grandstand was to be constructed also contained breeding habitat for a Species at Risk, the Bobolink. It was claimed that the CMS realigned Miller Creek would be lined with planted trees. 

The CMS had a groundbreaking ceremony. It was claimed at the time that the tree cutting and excavation here which involved the elimination of the groundwater spring, the cutting of all the trees that lined Miller’s Creek and its burial on the subject lands were a prelude to future ecological restoration. 

At the same time as the proposal to turn the CMS lands into a possible shopping center was discussed through an urban boundary expansion, the Niagara Region became involved in the development of a new Official Plan. As a result, it developed what was termed a Natural Heritage Mapping Tool, which identified by overlays over aerial photographs, Niagara’s streams. I went to the Mapping Tool for the former CMS lands and it showed that Miller Creek on these lands had disappeared. Where the creek was to be built, there was no sign of any stream contour or young trees lining this feature as promised. 

Just as the Mapping Tool revealed, the deficiencies in the CMS EIS, another document, which could not be used in the various hearings of the GR CAN development termed Riverfront, exposed its shortcomings. This was the Tree Saving Plan required under the Niagara Regional Tree by-law.

The GR CAN motion to dismiss my appeal of the zoning by-law required for the Riverfront development, prevented an examination of the health of the forest by experts of all parties. Had the appeal proceeded to a Case Management Conference (CMC), an examination of the significant woodland would have been undertaken through a site visit. 

The CMS would have established protocols for the site visit, time limits for the naming of any experts, and deadlines for the submission of their reports.  This process would have determined if the woodlands were healthy or, as claimed by the EIS, about to be overwhelmed by ash die off and buckthorn succession. 

Appended to my letter of appeal were two letters by experts which I had hoped, following the CMC Mike Dickman and Miriam Richards, would be allowed to examine the significant woodlands in the company of ecologists employed by GR CAN. These letters were prepared for an earlier LPAT official plan hearing. However, the LPAT hearing officer, Sharon Vincent at the CMC refused to allow me to call expert witnesses. At the time, this interpretation of LPAT rules had been challenged by an Ontario Superior Court ruling, in a case called Kraft v. Toronto. It is now an accepted practice for expert witnesses to be called by parties, to engage in site visits to determine actual conditions. 

In the EIS prepared for the Official Plan for what was termed at the time as the Thundering Waters development, a test plot sampling was claimed to have been undertaken. This study contained what a table described as Woodland Definition Sampling Plots. The study claimed that “Only two (9%) of the 22 plots meet the definition of woodlands based upon the presence of healthy, native trees (Cottonwood and Silver Maple).”

In their letters, Dickman and Richards challenged the ash die off thesis of the experts employed by GR CAN. Richards, a Professor of Entomology at Brock University, for instance, stated that in her experience, “ash tree deaths are widespread across Niagara, and there are multitudes of woodlands in which other kinds of succession are taking place…oak, red maple, sugar maple and American elm trees. They are growing rapidly, due to increased sunlight.” Dr. Dickman found that as ash decomposes, buckthorn “would be replaced by taller trees such as oak whose canopy would arch out over the buckthorn depriving them of light.” 

In view of the later findings of the Tree Saving Plan that the woodlands were not claimed as dominated by dead, dying Ash and successional Buckthorn, the reply statements made by GR CAN’s experts are more disturbing. They claimed that additional studies were done for the later zoning EIS reports to compliment those done for the official plan. It was claimed that the earlier test plots were “superseded by surveys conducted in 2018.”

In her decision, MacNeil disparaged what she termed the “unsigned witness statement”, which was “stale dated” (before the zoning by-law was prepared). Whatever such flaws, such as lack of signatures and dates, it reports proved more accurate to describe actual conditions than the two test plot surveys put forward by GR CAN. Had the LPAT hearing not been dismissed and an onsite visit of experts of all parties been undertaken, this reality would have emerged. 

Although the Tree Saving Plan was prepared in the summer of 2021, before MacNeil’s adjudication, it was not known to myself, and therefore could not be entered into evidence. I only came into its possession when learning that the cut was imminent after the hearing had taken place. The plan was intended to be a draft plan, its author hoping to get the opportunity to demonstrate that more trees could be saved based on grading studies. However, the Niagara Region determined it was adequate for its purposes. This plan found that, “With respect to the general health of the trees it was found that no obvious sign of wide-spread disease was present.” 

Rather than Green Ash claimed to be the dominant species by experts, the dominant species in the soon to be cleared forest was Eastern Cottonwood. It was found to account for 27.5 per cent of the woodlands. Only 12.5 per cent were Green Ash. And only 5.5 per cent of the ground was covered by Buckthorn. Other healthy native trees included Black Walnut, Pin Oak, Bur Oak, Swamp White Oak, Black Cherry, Silver Maple, and Basswood. Twelve percent of the doomed forest was Willow. While American Elms were found in substantial numbers, most of these trees were found to be “in good condition.” 

An additional significant finding of the Tree Saving Plan was that contrary to the EIS prepared by the developer and submitted through sworn affidavits, there were six wild Honey Locusts in the doomed woodland. The EIS claimed that these trees, which it admitted had a status of “Imperiled to Vulnerable,” were entirely within protected wetlands where development was prohibited. Wild Honey Locusts are a tree that is easy to identify because of their unusual spike like thorns. 

From speaking to me in recent months, some Niagara Falls environmentalists have been looking for an issue to mobilize voters for the upcoming municipal election. One should be the outrage of my being ordered to pay $8,000 to the City of Niagara Falls. $12,000 is to be paid to GR CAN based on uncritical acceptance of developers' biased studies, which were later proved to be inaccurate through the tree saving plan. 

Fort Erie and Niagara Falls outside of Walpole Island and Six Nations have the largest blocks of healthy native species dominated habitats. It is to be hoped that the court will order payments in a campaign of revocation that will heighten the determination to save these precious natural habitats, reversing what is usually an intended chill effect when they are imposed. 

From Danny Beaton: 

People come and people go in this life journey. Sometimes we just can't explain where they come from, but positive people can help guide us and bring us into a better way of feeling about how beautiful everything can get. The old elders had a way of bringing us back into positive thinking by working in the camp, cutting wood or going fishing for more food for the people. 

Once cooking was prepared we would sit in a Sacred Circle  and let the old elders share the things they had learned in their lifetime. Then we would have ceremonies again every morning until everyone had given a Thanksgiving. 
These Traditional ways of Indigenous people have been kept alive for thousands of years now. 

After all these years gone by, we are trying to stay connected to Mother Earth as Indigenous people but this fast pace of life all around us is still moving faster and faster with elections and media, mega projects and expressways subdivisions and shopping malls. Our children are witnessing the consequences of viruses and war from an early age, meaning collective trauma is everywhere. 

Like the movie To Kill A Mockingbird, the courtroom was a place where justice was supposed to come from but instead, liars managed to turn the truth around and convict an innocent man. 

When I look at Dr John Bacher fighting for trees , water, life species and Indigenous homeland, I wonder when the tide is going to change. We all know what is going on now and good things happen every day. But will people ever look back to the wisdom and messages from the old elders who walked in a sacred manner?

The old elders — even our grandparents — knew we were making a lot of mistakes by destroying our forests and polluting our Great Lakes. In my mind and heart, the judge should have given Dr John Bacher the Order of Canada, not a twenty thousand dollar fine. 

We the people are moving down the road of spiritual bankruptcy ,but society still is sleeping even after the COVID pandemic woke us all up spiritually. Whoever is awake out there I hope you can help create unity and respect before everything is destroyed from this fast, meaningless, pace we are on before we can't slow down. Even environmentalists sacrificed their life for our forests in the Amazon. This shows that people are focused and believe life is something bigger than ourselves!

Attached find a copy of the Nash Coville Report regarding the EIS study for Riverfront.

Photo Credits:

Photo 1: Pine grove of trees about 80 years old, Thundering Waters, 2022. Although the developer claimed the forest had no ecological significance since it was human planted, young Pin Oak were regenerating under their shade. 

Photo 2: Honey Locust, Thundering Waters, 2022.  6 Honey Locusts were cut in the area. The developer's EIS study ignored that the rare tree was to be cut for subdivision and wrongly claimed it was found only in protected wetland safeguarded from development.