Intervenor: vol. 26, no. 4 September - December 2001

Province Goes Through the Motions to Review Provincial Policy Statement

The call from Municipal Affairs in September for input to the legislated five-year review of the Provincial Policy Statement (PPS) was a pro forma exercise. The PPS flows from Section 3 of the Plannng Act. CELA responded, in a collaborative effort with the Federation of Ontario Naturalists (FON), and both sets of comments can be viewed online at www.ontarionature.org. This article distills some of those comments.

CELA and the FON noted that no-one could call upon any collection or analysis of empirical data to be able to assess the implementation of the PPS with any degree of rigour or certainty. This lack of monitoring is the case with respect to implementation at all stages of the planning process, including if or when planning decisions end up being made by the Ontario Municipal Board (OMB). In the absence of any such data, the results of this review of the PPS should be considered preliminary at best. Moreover, CELA's comments focused on the importance of the PPS review being informed by the results of the Walkerton Inquiry (Inquiry).

CELA's general comments addressed longstanding concerns about the need to include environmental considerations into what is an inherently development-driven process. Written and structured to champion development, the PPS places development at the top of a planning hierarchy. Although not expressly stated, this primacy arises from the ordering of policies in the PPS. This implied priority can become reality when municipalities and the OMB structure their decision making in the same order as issues listed in the PPS. This situation arose for CELA's clients in a hearing addressing the City of London's Official Plan Amendment for the Middlesex lands. The hearing was structured to consider matters in the same order as they are listed in the PPS. Early decisions were made before evidence was even heard on issues listed later in the PPS. Hence, urban growth boundaries were set before any of the environmental evidence was reached.

Additional general comments were made concerning issues beyond the content and interpretation of the PPS, including problems arising from the "one-window" approvals process, "as-of-right" appeals, and longstanding concerns with the "have regard to" language in Section 3 of the Planning Act.

In more detailed comments concerning source protection for water quality and quantity, CELA noted that the PPS of 1997 constituted a substantial re-write and simplification of the Comprehensive Set of Policy Statements that had resulted from an extended period of province-wide consultations. In comparison, the PPS greatly simplified and weakened specific policy measures and related definitions of terms for environmental protection. The many revisions to the earlier set of policies, definitions, implementation guidance and availability of provincial staff and resources were particularly dramatic in the area of water quality and quantity.

Recognizing the absence of comprehensive data or performance indicators to measure the effectiveness of any of the policies, including those for water quality and quantity, CELA's remarks included a review of the numerous points made throughout the Walkerton Inquiry where land use planning matters arose with respect to the issue of source protection for drinking water.

Among the many complex areas of evidence that were the subject of the Inquiry proceedings, additional expert advice and extensive public submissions, the matter of source protection for drinking water sources arose consistently. Issues of groundwater and aquifer location, movement, withdrawals, contamination, protection and surrounding or overlying land use were central to the overall investigation.

The Inquiry heard detailed evidence dating back to 1978 concerning the lack of measures imposed by either the Province or the local municipality to ensure surrounding land uses cannot lead to well water contamination. Nor does the Planning Act or the PPS yet require that such precautions occur. It seems clear from the evidence presented to the Inquiry that manure spread on land near at least one of Walkerton's wells in April, 2000 was the primary source of the contamination.

The Inquiry addressed a wide range of issues including an in-depth review of the many issues related to source protection. Concerning the intersection of agriculture and land use, the Inquiry heard evidence about groundwater protection policies, or the lack thereof, at the provincial and local level. For example, the Inquiry heard evidence about the multi-year series of reports by the Environmental Commissioner for Ontario and the Provincial Auditor documenting the delay and inaction by the Province in developing a multi-Ministry groundwater protection strategy.

In the many commissioned papers, additional public submissions and at public meetings, the Inquiry repeatedly heard about the need for and detailed proposals to ensure source protection, including via land use planning measures.

As reported in past issues of the Intervenor and posted to CELA's Web site, CELA undertook two large research efforts during the Inquiry that included components of direct relevance to provincial strategies for land use planning to achieve drinking water source protection. CELA's submissions to the Inquiry and additional responses to the Province's nutrient management proposals, were submitted in their entirety as appendices to the response to the call for comments on the PPS. Of particular relevance to the PPS is the need, expressed in legislative detail, for the protection of water quality and quantity to be given paramountcy over other policy matters as well as the need for an integrated strategy to achieve drinking water protection including the paramountcy of water quality protection in the land use planning process. The lack of such integration and coordination and its tragic implications was revealed in sharp relief under the magnifying lens that was the Walkerton Inquiry.
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Kathleen Cooper is a researcher at CELA