Court proceedings for Hanlon Creek protesters: of silt fences and salamanders

Monday, August 10, 2009

  • Two courtroom observers have lunch during a break in proceedings. (Greg Beneteau)

    Two courtroom observers have lunch during a break in proceedings. (Greg Beneteau)

Written by Greg Beneteau

(Click here for pictures of the post-court meeting of HCBP protesters outside City Hall)

A judge presiding over a case against protesters at the Hanlon Creek Business Park maintained the status quo pending his decision.

After nearly six hours of courtroom proceedings, including the cross-examination of a Ministry of Natural Resources employee, Ontario Superior Court Justice Douglas Gray reserved his decision while he deliberated injunctions put forward by both parties.

In the meantime, Justice Gray effectively left in place an interim injunction handed down by a previous judge, allowing the protesters to stay within their pre-existing campground area provided they didn’t erect additional structures, bring in more occupants or impede repair work done by the city.

Under the terms of the original injunction, the city was also allowed to send in workers to test water in a nearby tributary, mend a damaged silt fence and replace surveyor sticks that had been removed.

Michael Bordin, a lawyer for the city, asked that the judge’s interim injunction require protesters to leave by noon Tuesday.

He said contractors hired by the city were refusing to go onto the property while the occupants were nearby due to “issues of liability.”

Bordin also asked the contractors be allowed to remove blockades and fill in ditches that were installed by protesters along the dirt road leading to the site.

Defence lawyer Eric Gillespie said his clients were obeying the terms of the original injunction and that the contractors were protected by those terms.

“If there’s an order from the court, I think the protection of the court is sufficient,” Gillespie said.

Justice Gray subsequently amended the injunction to allow the city “to remove obstacles” on the road, but did not address the eviction request.

Salamander expert, MNR recommended not proceeding with construction

The City of Guelph and Belmont Equity Group, both landowners of the HCBP, have claimed $5 million in damages against a group who has been occupying the site of a proposed culvert and road since July 27.

The plaintiffs asked the court to grant an injunction requiring the group to vacate the site. The defendants filed their own injunction on Friday, asking the court to halt further construction until the city conducts more research into the status of the Jefferson Salamander.

The Jefferson Salamander is considered a Species at Risk and is protected under Ontario’s Endangered Species Act.

In his opening statement, Bordin argued the city had taken steps to preserve and protect the environment on Hanlon Creek, including preserving old growth trees and protecting tributaries around the construction site from sedimentation.

After a case taken to the Ontario Municipal Board by the Kortright Hills Community Association, Borin noted the city agreed to abide by 75 additional recommendations for HCBP development, as well as 17 recommendations made by the city’s Environmental Assessment Committee, a citizen advisory group.

One of recommendations made by the committee included “confirmation of the presence or absence of the Jefferson salamander,” on the proposed construction site. 

In April, the city contracted Natural Resources Solutions Incorporated to search for adult or larval salamanders on the site by laying live traps

“The conclusion that they came to was that there were no salamanders of any kind” on the site, Bordin said. The contractors also gave their opinion that the culvert would not adversely affect the Jefferson Salamander even if they were present, he added.

Gillespie said there was evidence Jefferson Salamanders were located on the property, including the discovery of a Jefferson Salamander hybrid on Downey Road just outside the construction zone.

The presence of a cross-breed, which isn’t protected under the Endangered Species Act, means a Jefferson Salamander could be nearby, Gillespie asserted.

“If you find one salamander, there are others… they don’t magically drop from the heavens,” he said.

He cited an affidavit filed Doctor Jim Bogart, chair of the provincially-mandated Jefferson Salamander recovery team, recommending that more research be done to identify possible breeding ponds for Jefferson Salamanders on the property before proceeding with construction.

The court also heard testimony from Ian Hagman, the Guelph District Manager for the Ministry of Natural Resources.

On questioning from the city, Hagman noted the city did not require approval from the ministry to proceed with the work in question.

Hagman said the ministry had received copies of the city’s reports and had been working with the city since before the discovery of the hybrid.

“Were you satisfied by what has been proposed to… work out any issues with respect to the discovery of the hybridized Jefferson Salamander?” Bordin asked.

“Yes,” Hagman replied.

However, on cross-examination, Hagman admitted his staff had recommended halting development of the HCBP in the interim, while measures were taken to determine whether Jefferson Salamanders or their habitats were present.

“My recommendation, and that of my staff, as not to proceed with construction at this time,” he said.

Section 9 of the Endangered Species Act makes it an offense to “kill, harm, harass, capture or take a living member of a species,” that is listed as extirpated, endangered or threatened.

An officer of the ministry can issue a stop work order if an activity threatens an endangered species or its habitat.

However, Hagman explained the ministry could not intervene in this case because no Jefferson Salamanders had yet been found on the property, and the guidelines defining the salamander’s habitat had not yet been approved.

He said the city would have to make a “risk management decision” in choosing to continue construction.

“In the absence of that information, they could run the risk of contravening section 9 by killing a salamander if one existed in the area by continuing the work,” Hagman said.

Corporations that violate the ESA can face fines of up to $1 million for the first offense and up to $2 million for subsequent offenses.

As part of the injunction request, Gillespie asked the judge to adopt the “precautionary principle” set out in the Act to protect the Jefferson Salamander from harm, by postponing construction work until the end of September when the breeding season ends.

Bordin disputed the request, saying it was the job of the Ministry of Natural Resources to enforce the Endangered Species Act. He urged the judge to issue an injunction against the protesters so that work on a stream culvert could be finished before the September 15 deadline set by the MNR.

Justice Gray told both lawyers he hoped to have a decision handed down by the end of the week.

CORRECTION: A previous version of this article claimed the City of Guelph and Belmont Equity had filed a lawsuit for $5 million against the protesters. The $5 million refers to damages claimed by the city, and no lawsuit has been filed. Thecannon regrets the error.

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