Written here is a summary of issues surrounding the City of Guelph’s Hanlon Creek Business Park (HCBP). This proposed 675-acre industrial development has a history that dates back to 1993, and has been met with many years of community opposition. This summary deals primarily with the connections between the HCBP, the occupation of the development site in July-August 2009, the court proceedings resulting from this occupation, and the notorious Jefferson Salamander. More to the point, the intent of this summary is to explain how the City has been misleading the public, subverting the public process, and proceeding with this industrial development while disregarding both public opinion and the urgings of the ‘experts.’
While there is much more to the HCBP than these issues, this is narrow in scope so as to clarify these complex issues for the layperson. Even though this is lengthy, please take some time to read it through, as these facts are essential to understand what the City of Guelph is trying to do. We have done our best to keep opinion out of this and have it be strictly factual, as the evidence speaks for itself.
May 15, 2006:
The Ontario Municipal Board (OMB) hearing on the HCBP issues a series of legally-binding conditions, including:
“#12: … The Developer (the City of Guelph) shall address all items and recommendations expressed in the Hydrogeological Report, (and) the Environmental Advisory Committee (EAC)….”
This OMB condition binds the City to following the EAC’s recommendations, and the City has repeatedly assured the public that it will follow both the OMB and EAC.
April 8, 2009:
The EAC approves their motion on the HCBP’s Environmental Implementation Report, which includes the following item:
“6. That confirmation of the presence or absence of the Jefferson Salamander is provided, and if confirmed, appropriate conservation measures consistent with the Endangered Species Act 2007 and the Recovery Strategy must be provided in consultation with the MNR.”
Therefore, for the City to abide by both EAC and the OMB, they must confirm the presence of absence of the Jefferson Salamander, and apply “appropriate conservation measures” in consultation with the MNR. To this date, the City has confirmed the presence of the Jefferson Salamander, but is unable to confirm where its habitat is.
May 21, 2009:
A City of Guelph press release confirms the City’s hired consultants, Natural Resource Solutions Inc. (NRSI), found a hybrid Jefferson Salamander on the HCBP lands. From the press release: “DNA analysis on a salamander collected along Laird Road has determined that while that salamander is a hybrid Jefferson, a pure Jefferson salamander sperm donor is present in the area.” Mayor Karen Farbridge is quoted as saying, “The City remains committed to protecting the habitat of endangered species, and we will work closely with the Ministry of Natural Resources.”
May 25, 2009:
Dave Marriot, District Planner with the MNR, sends a letter to the City of Guelph, concerning the HCBP and the recent confirmation of the presence of the Jefferson Salamander. This letter outlines serious concerns with any construction on the land, ending by saying, “the Ministry recommends that the development of road A be deferred until the implications of the ESA are evaluated.”
This letter includes the following cautions:
Due to the fact that the location of Jefferson Salamander breeding pond(s) on the subject lands is currently unknown, the precautionary principle should be applied to avoid impacts to the species and/or habitat. In review of the proposed orientation of road A, and the proximity to the salamander occurrence and contiguous natural features of the site, the Ministry recommends that development of road A should not proceed until the site has been re-examined for potential Jefferson Salamander habitat and the implications of the ESA have been considered.
Read the MNR’s May 25 letter to the City: May 25
June 22, 2009:
The City ends the bidding period on the contract for the first infrastructure for the HCBP. This infrastructure contract is for both a culvert across Tributary A of the Hanlon Creek, and the bulldozing of a 4-lane access road (road A) through the meadow between McWilliams Rd. and the creek. The City awards the contract to Drexler Construction, who secured the contract with a bid of $582,483.49. The City had awarded this contract even though they had yet to receive the ‘green light’ from the MNR.
That same day, the City’s hired consultants, NRSI, sent a letter to Peter Cartwright, General Manager of Economic Development and Tourism. NRSI’s letter was regarding salamander monitoring on the HCBP site. Their letter concluded with, “it is our opinion the habitat of Ambystoma laterale-(2) jeffersonianum (Jefferson Salamander) does not occur in the vicinity of the Road A crossing. In our opinion the habitat of this species will therefore not be impacted by the proposed installation of the Road A crossing culvert.”
June 29, 2009:
Hans Loewig, the City of Guelph’s Chief Administrative Officer, writes a letter to the MNR. This letter is regarding the HCBP and the Jefferson Salamander. Mr. Loewig informs the MNR that, “As the first stage in construction, the City wants to proceed with the construction of a 34 meter-long arch culvert and 300 mm watermain on Road ‘A’ and across Tributary A, which is classified as coldwater fish habitat. This work is being given priority because the installation of the culvert must be carried out between July 1 and September 15 in accordance with the MNR requirement to avoid coldwater fish and fish habitat impacts during in-stream work. The rest of the servicing work in Phases 1 and 2 will proceed thereafter.”
Mr. Loewig continues to inform the MNR that, “the City of Guelph will exercise extraordinary diligence for identifying potential presence of Jefferson salamander during the construction of both the Road A culvert and municipal services thereafter. We will keep the MNR Guelph District Office informed of developments at all times.”
July 6, 2009:
Despite the MNR’s last communication to the City instructed the City to not proceed with construction, the City authorizes Drexler to begin construction.
July 27, 2009:
60 people walked on to the HCBP site at dawn, stopping construction at the tributary of the Hanlon Creek. Drexler’s workers and machines left, and an ongoing camp was established. A presence was held at the Downey Rd. entrance, media was called, and supporters from all over Guelph and Southern Ontario arrived on site. The camp became home to dozens of people, and included a compost toilet with hand washing facilities, a medic tent attended by medics and herbalists, a kitchen, straw bale structure, and numerous tents.
July 30, 2009:
The City of Guelph, under a directive of City council, served a motion for an injunction against the occupiers of the site, naming seven individuals, along with “Members of Land Is More Important Than Sprawl (LIMITS) or any agent or person acting under their instructions, JOHN DOE, JANE DOE, and other persons unknown.” Also included in the injunction is notice of allegations of crimes of “Nuisance,” the “Criminal Offence of Mischief,” the “Criminal Offence of Intimidation,” the “Criminal Offence of Extortion,” and “Inducing Breach of Contract,” and a claim for “Damages in the amount of $5,000,000.00 ($5 million) for conspiracy, interference in economic relations, inducing breach of contract, trespass, nuisance, and intimidation.”
July 31, 2009:
The MNR sent the City a response to the City’s June 29 letter. This letter explained that the MNR still did not support the HCBP construction, and outlined numerous reasons why NRSI’s salamander surveys were flawed and incomplete.
Most condemning are the following paragraphs:
The Ministry acknowledges the City’s commitment to “exercise extraordinary diligence” for identifying the presence of Jefferson Salamander during the construction of municipal services. However, the Ministry suggests that this approach is problematic, because even if the individuals of the species are not present within the vicinity of the area subject to development, the area may nevertheless be regulated habitat.
Based on the current surveys afforded to the site, and the Ministry’s documented concerns, additional studies are required to satisfy the questions still left unanswered (i.e. extent and location of habitat). The Ministry recommends that these studies include a more thorough minnow trap inventory in March through April 2010 (exact dates will depend on weather conditions) and a subsequent movement study employing the pitfall trap-drift fence methodology.
In light of the above comments, the Ministry is not in a position to support the continued construction of municipal services for Phases 1 and 2 of the HCBP in the absence of complete information regarding the extent of Jefferson Salamander habitat. In the absence of complete information the precautionary principle should be applied to ensure development does not contravene s.9 1(a) and/or s.10 1(a) of the Endangered Species Act (ESA 2007). Pending the identification of habitat afforded to Jefferson Salamander within the subject lands, the orientation of municipal services cannot be definitively considered as designed to be “compatible with the habitat and wetland features interior to the HCBP,” as suggested in the City’s June 29, 2009 correspondence.
In short, the MNR has advised the City that the “opinion” of their consultants, NRSI, is insufficient to safeguard the habitat of threatened species on site. It remains the MNR’s belief that the City never should have begun construction, and construction should not continue.
Read the MNR’s July 31 letter to the City: July 31
August 4, 2009:
Through cross-examination, we learn that Peter Cartwright and Hans Loewig met around 9-9:30 a.m. to discuss the MNR’s July 31 letter that urged the City to not proceed with construction. This confirms that before the City began court proceedings against the Defendants, both Mr. Cartwright and Mr. Loewig knew the MNR remained in opposition to the HCBP construction.
At approximately 10:30 a.m. this same morning, the court hearing for the City’s injunction began. The City’s lawyer, Michael Bordin, submitted to the Superior Court an affidavit from Peter Cartwright that says the HCBP “has required the approval and oversight of various bodies including the Grand River Conservation Authority and the City of Guelph EAC.” This is the same EAC that requires the City to confirm “the presence or absence of the Jefferson Salamander,” and engage in consultation with the MNR.
This same submission to court is accompanied by an affidavit from Colin Baker, the City’s engineer who is overseeing the culvert contract. Mr. Baker’s affidavit asserts that, “All necessary assessments, approvals, certificates, and permits to develop phase one of the HCBP have been obtained.” Mr. Baker’s affidavit also refers to EAC’s recommendations, stating, “One of these recommendations was that confirmation of the presence or absence of the Jefferson Salamander be provided, and if confirmed, conservation measures be provided in consultation with the MNR.”
It is also worth noting that this same affidavit shows that the Construction Inspector hired by the City to oversee construction is NRSI, the same hired consultants whose salamander surveys were declared flawed by the MNR.
The day in court ends with Justice Wein granting a six day adjournment, allowing the occupiers of the site to remain where they are, with a few concessions.
August 5, 2009:
The day following court, a meeting takes place involving five of the most powerful people in the City of Guelph’s administration, and the District Manager of the MNR. In attendance were:
Hans Loewig, Chief Administrative Officer,
Peter Cartwright, General Manager of Economic Development and Tourism,
Jim Riddell, Director of Planning and Building Services,
Rajan Philips, Transportation Planning Engineer, and
Ian Hagman, Guelph District Manager, Ministry of Natural Resources.
A memo on the outcome of this meeting was written by Peter Cartwright, and submitted as evidence later this same week. Through Mr. Cartwright’s memo, we learn that the purpose of the meeting was to, “discuss and agree upon appropriate next steps to address issues raised in the MNR letter of July 31, 2009.”
The “Agreed Action,” as transcribed by Mr. Cartwright, is that, “The City could recommence and complete the construction of the Road-A culvert crossing in the HCBP.”
While this statement appears to indicate that the MNR has given permission for the City to “recommence and complete the construction,” further dialogue and cross-examination of Ian Hagman shows that Mr. Cartwright’s wording is disingenuous. Since the MNR does not currently have the legal authority to stop the City from this construction project, the City does technically retain the legal ability to continue construction. Even though the MNR’s position remains the same – that the City should not have begun this construction project, nor should the City continue with it – what the City says is legally true. The City “could” recommence and complete the construction, only because the MNR has no authority to say otherwise.
August 10, 2009:
The City and the Defendants return to court for their second hearing, this time in front of a different judge, and with a courtroom so packed there is waiting list to get in. The Defendants have filed a motion for their own injunction, bringing to the court the question of whether or not the City should be allowed to continue work.
District Manager of the MNR, Ian Hagman, is summoned to the stand to clarify matters for the court. He explains that currently the MNR has no legal ability to stop the City from this construction project, but that the position of the MNR is the same today as it was on July 31. “My recommendation, and that of my staff, is not to proceed with construction at this time,” he testified.
After a lengthy court hearing, matters are adjourned for several more days while Justice Gray weighs his decision on both injunctions.
August 11, 2009:
The day following court, the City issues a press release titled, “City and MNR work together on Hanlon Creek Business Park.” This press release states that, “The City has worked diligently with the MNR to take precautions and mitigate potential impacts to any potential Jefferson Salamander and/or its habitat on the HCBP site…. Regardless of the outcome of the injunction process, the City of Guelph remains committed to determining the extent and location of potential Jefferson Salamander and/or its habitat in the HCBP.”
In defence of the continuation of the HCBP, Mayor Farbridge is quoted as saying, “A strong tax base and jobs are necessary parts of building a secure and prosperous future for the citizens of Guelph.”
The press release also cites “acknowledgement on the part of MNR that the culvert construction does not contravene the Endangered Species Act (ESA 2007) or any existing legislation.”
It is true that the City’s desired construction for the HCBP does not contravene “any existing legislation” – but here’s the catch:
Awaiting official approval and adoption into the ESA is the Jefferson Salamander Recovery Strategy, which has as a main author retired University of Guelph zoologist Dr. Jim Bogart. This document “outlines the objectives and strategies necessary for the protection and recovery of Canadian populations of the Jefferson Salamander,” and is expected to be approved in either 2009 or 2010.
If we were in 2010 instead of 2009, and the Recovery Strategy was approved and part of the ESA, a project like the HCBP would run the risk of violating the ESA. The MNR would have the legal ability to stop work, and the kind of violation the City is pursuing would be liable for a fine of up to $1 million for the first offence, and up to $2 million for the next.
As stated in the City’s own May 21 press release, the City knows the Jefferson Salamander is somewhere on site, but they have yet to confirm exactly where. As long as the exact habitat of the Jefferson Salamander remains unknown and the Jefferson Salamander Recovery Strategy is not yet passed, the City is not in contravention of “any existing legislation,” and the MNR remains unable to do anything about it. Could this be why the City is so eager to finish this construction contract and have the rest of the HCBP infrastructure ready for the spring of 2010?
August 12, 2009:
The Guelph Mercury publishes an article titled, “Salamander expert wants city to halt construction until spring.” Dr. Jim Bogart recommends the City should do further testing in the spring of 2010, and ideally extend this testing for three years, before any construction could continue. Because certain years the search for breeding habitat isn’t always successful, and some years the salamanders don’t breed at all, a longer survey time is required.
August 13, 2009:
Justice Gray delivers his decision on both injunctions, granting both. The City has the go ahead to use the police to force people off the land, but regarding the City’s ability to continue work, Gray has also given ultimate authority to Donna Cansfield, the Ministery of Natural Resources. She has up to 30 days to review whether a stop work order will be given under the ESA. Since all prior recommendations from MNR staff were that the City should not proceed, we are requesting that the MNR continue its recommendation that further studies are needed and construction not proceed.
Read Justice Gray’s decision: Gray’s Decision