Ontario Land Tribunal Dismissal of Riverfront Rezoning Case Sparks Request to Appeal to the Divisional Court

By Dr John Bacher and Danny Beaton, Mohawk of the Turtle Clan.

In Memory of Alicja Rozanska.

On September 17, 2021, the Ontario Land Tribunal (OLT) dismissed a zoning appeal by the Ontario Sierra Club Executive Committee Member, John Bacher. The Sierra Club Canada Foundation had separately sought standing as a participant in the case. On October 4, 2021, lawyers at Eric K. Gillespie Professional Corporation filed a motion for leave to appeal with the Divisional Court, the first step in asking the court to review the OLT decision.

The Riverfront rezoning may be the first stage of an effort to develop what in the past was called the “Paradise Project.” It was proposed in 2015, on a natural area of around 500 acres. Most of this is part of a protected wetland known as the Niagara Falls Slough Forest Wetland (NFSFW) complex. The wetland contains extensive vernal pools. They provide breeding habitat for such vernal pool obligate species as the Western Chorus Frog, the Spring Peeper, the Wood Frog, and the Blue Spotted Salamander. They also support the At-Risk Midland Painted Turtle and the Snapping Turtle, and Bullfrogs, which are seriously declining in Ontario.

Many other Species-At-Risk have been identified in subsequent ecological studies as being in the protected wetland and its vicinity. These include three species of bats, which use woodlands in the area for roosting habitat. The old-growth oak-dominated woodland has extensive tree cavities, which provide habitat for both bats and the threatened Chimney Swift. There is a threatened bird which depends on rare large blocks of Carolinian forest, called the Acadian Flycatcher. Two rare wildflowers are found here. One is the Threatened Dense Blazing Star. Another is a rare orchid, the Great Plains Lady Tress. This wildflower area also provides habitat for the Threatened Barn Swallow.

The NFSFW was established in 2008 when access to the site for field investigations was gained following a settlement made by John Bacher. This followed an appeal he made to protect the area to the Ontario Municipal Board, which gave the Ministry of Natural Resources (MNR) access to the site to make a wetland evaluation.

There was an effort to change wetland policy at the provincial level to facilitate this development. Between 2015 and 2018, developers urged the province to adopt wetland “offsetting” policies. The policies would make way for development on existing wetlands, if the destroyed wetlands could be replicated elsewhere. The province rejected the idea shortly after the devastation caused by Hurricane Harvey in Texas. After its wreckage, it was found that wetland offsets in Texas generated results on paper, not new functional wetlands.

In the fall of 2019, the Riverfront development was announced, which proposes to develop about a fifth of the “Paradise” area. In November 2020, the zoning amendments for this project were appealed by John Bacher. One of the worst aspects of the proposal is to have a Sewage Pumping Station on the edge of a provincially protected wetland, which provides habitat for turtles and bullfrogs. The OLT ostensibly rejected Bacher’s appeal on the basis that he did not provide land use planning reasons in support of it. However, the OLT finding made no mention of the 15 pages of reasons that were before it at the time. “[A]ffected parties and reviewing courts cannot determine if the decision is reasonable, let alone, justifiable, transparent, or intelligible”, wrote lawyer Ian Flett in support of the leave motion.

‘City of Niagara Falls Zoning Amendments Offend the Natural Heritage Policies of the PPS.”
That they
“Deny the Existence of Real Natural Heritage Features”
Ignored the
“Potential Turtle Nesting Habitat on the Subject Lands”
And ignored
“Area of Habitat of the Threatened Dense Blazing Star”

* * *

By Danny Beaton:

In 2016, the GR Investment Group proposed The Paradise Project in Thundering Waters Area Niagara Falls. A hundred years ago or less, the Indigenous Nations still living and still occupying the Niagara Falls area were the Delaware, Ojibway, Tuscarora, Oneida, Cayuga and Mohawks, who all had fought on one side or the other depending on where they were living. But all these nations were given Sacred Treaties and promises for their commitment to pledging allegiance to Canada or the United States.

As long as the sun shines, as long as the grass grows; we each have our canoes, you in yours, us in ours, but we will never interfere with each other and travel in respect down the same river. Also to remember, it was the Founding Fathers of Confederation who said we will build our nation in Unity just like the Iroquois Haudenosaunee Six Nations Confederacy. Even the American Congress was known to be greatly influenced by the Great League of Nations, The Six Nations Confederacy. After the American Revolution and War of 1812, great Treaties and promises were made between Indigenous Nations and British Governments.

Niagara Falls has always been a Sacred Place for Indigenous people. In fact, you could say it was a real paradise before overpopulation took over and farmland began to be bought and sold for enormous profits by corporations and land developers.

To make this story short, how could such a paradise of Carolinian forest be reduced to so much concrete and wires? If this place called Thundering Waters could be turned into a shopping mall or subdivisions, would the Indigenous people agree to such a radical change of environment? Have the Indigenous peoples been consulted over such radical changes to wetlands, forests, farmlands and groundwater? The paradise that was once pure and natural is no longer there, but what is left should be protected in my mind as a Mohawk man living in these times of climate change and global warming.

As an Indigenous man I was taught and instructed that Mother Earth is a Sacred Lady who must be honoured and protected, and we as Human Beings have a sacred duty to all life, frogs, insects, turtles, fish, birds and animals. We Indigenous people are the voice for everything that moves on this sacred Mother Earth; it is our way of life for those of us who remember. Our elders said we have to remind each other of our way of life and our original instructions.

Because my best friend has asked me to say a few things, I am not trying to offend anyone but hope that Canada will see what we are doing and join in to support life and our children’s future before there is no hope left.

Thank you all for listening.

Photo credit: Dr John Bacher and Danny Beaton Mohawk veteran protectors of Mother Earth. 

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