Township and residents disappointed with OMB decision

The recent Ontario Municipal Board, (OMB) decision/order, which overturned the original OMB 2004 decision, is “good news for those who support factory livestock "farms," but bad news for other Lake Huron stakeholders.”

So says Huron-Kinloss resident John Welwood. Welwood, those at the township, along with residents concerned about water quality are all disappointed after hearing that the Ministry of Municipal Affairs and Housing, on behalf of Ontario Ministry of Agriculture Food and Rural Affairs (OMAFRA), “finally got the decision they wished for.” The OMB recently overturned the first OMB decision/order, made in 2004, that supported the Municipality of Huron-Kinloss's Intensive Livestock bylaw.

Council recently received word that the (OMB) came to a decision on the townships official plan regarding zoning bylaw 2001-87, since it has decided on another intensive livestock case, which has had Huron-Kinloss case on hold since last year. (Peacock v Norfolk County)

Although the cases had little in common, last November, the OMB told the township that it could not decide on the Huron-Kinloss case until the Peacock v Norfolk County case was decided.

The recent decision in the Peacock case went against Norfolk County because its bylaw covered “the same subject matter” as a regulation under the Nutrient Management Act and “is therefore inoperative.”

The province forced Huron-Kinloss into an expensive OMB hearing in the first place, because the bylaw, passed on Sept. 10, 2001, that required all new intensive livestock operations (defined as 450 or more livestock units) to request a zone change.

They said that the township does not have the right to make decisions regarding nutrient management and that the provincial Nutrient Management Act supersedes zoning bylaws, much the same argument used in the Peacock case.

The bylaw was to ensure any new intensive farming operation sites would be suitable for that type of use and not have any adverse impact on the environment.

The Huron-Kinloss rezoning process gave the public a chance to question the application at public meetings, and voice any concerns they might have. It also gave farmers the right to appeal decisions. Council, residents and many of the area’s family farmers felt that the bylaw was fair for all.

Welwood says, “The Ministry is determined to have a "one size fits all" agriculture control policy, regardless of our township's unique geographical circumstances and our community desire to have carefully thought-out policies to achieve land-use solutions for a fully balanced and sustainable future.”

He goes on to say that, “We the citizens who live close by to these factory farms have, in effect, been denied any say in the planning and approval process for new animal confinement expansions. Local decision making has been taken away.”

This is not the first time the provincial Liberals have brought the matter in front of the OMB.

They first appealed the bylaw shortly after its passing for the same reason. The township and a community group called the Concerned Citizens Coalition, which Welwood was a part of, fought the provincial government and won. The appeal was decided in favour of the township.

Not happy about losing the case, the province cried foul, claiming the OMB did not have the right to make a decision regarding nutrient management and again insisted the provincial Nutrient Management Act supersedes zoning bylaws. The province also claimed that the OMB ignored the Provincial Policy Statement and favoured local interests over that of the province.

The province forced another expensive hearing on to the taxpayers of Huron-Kinloss, which has now been decided in favour of the province.

The Peacock OMB Hearing went before a panel of three judges. Two ruled in favour of the Province and one dissented, leaving the case open to appeal. Norfolk County wanted to challenge the decision at the Supreme Court level. Had Norfolk won, there was a chance the Huron-Kinloss case may have been decided in favour of the township. That however, was not guaranteed by any means.

Huron-Kinloss Administrator Mary Rose Walden told council after hearing that the case may be appealed in the Supreme Court, that unlike the court system, OMB decisions are not bound by precedence. “Even if the Supreme Court sides with Lambton County, the OMB could still decide against Huron-Kinloss, however they may take the court decision into consideration.” It may have also given the township an avenue for appeal if the OMB decided against it.

Things did not go well at the Supreme Court level for Norfolk County. That convinced both Huron-Kinloss council and those who supported the bylaw that there was no longer a reason to wait any longer or spend any more money on defending it. Council then decided at a meeting in Ripley that it should ask the OMB to make a decision. Councillor Jim Hanna said, “We’ve gone as far as we can go.” Council agreed. Councillor Anne Eadie added, “We’ve spent enough.”

The OMB then went on to decide against Huron-Kinloss.

Welwood worries that the OMB decision on the Huron-Kinloss case will have long-term effects.

“It is, in my view, an arbitrary and intrusive decision by the provincial government that will very likely encourage further expansion of intensive livestock operations into our part of the Lake Huron watershed, with disastrous environmental and social consequences for other stake holders in our Lake Huron watershed communities. It is poor public policy and further undermines the public's confidence in the government's responsibility to protect the public good, the air, the soil and the water we share.”

“The Province claims the Nutrient Management Act will address the public concerns about potential environmental and health problems associated with improper manure management. Yet their provincial policy and legislation doesn't provide equitable assess to factory farm decision making. The Nutrient Management Act doesn't safeguard our environment and health because it doesn't allow for environmental planning and public consultation. It makes the defenders of factory farming happy because the decision to overturn the municipality's bylaw effectively removes public scrutiny and local control.”

Welwood says he commends and thanks both the mayor and the council of Huron-Kinloss for “having the courage to defend their Intensive Livestock bylaw and for their efforts to achieve a balance of rights and responsibilities regarding land use controls.” He says it was “seen by many as a reasonable attempt to incorporate a commitment to both rural agricultural and residential areas. Their efforts to resolve public conflict within the planning process by doing the public's business in public was appreciated.”

Although many in the township agree with Welwood and the township, it is unlikely any changes will come unless the Liberal government changes its policy on decision making for municipalities. Most can not afford the high cost of defending their decisions fighting them through costly OMB hearings and the courts.

There is hope however, that new legislation may make both decisions inconsequential.

Ironically, Source Water Protection Legislation is expected to supersede the Nutrient Management Act.

The new legislation is meant to protect Ontario’s drinking water from source to tap, meaning it may address the issue of intensive livestock operations which may influence water quality, exactly what the township’s bylaw was intended to do.

Back to Index