The Nelson hearing is a quasi-judicial process, with law and science at the forefront. The story of a new quarry on the Niagara Escarpment runs deeper than the issues before the Joint Board. It is rooted in the people who live and play on the Mount Nemo Plateau, in the frogs, salamanders, and fish that live in its ponds and wetlands, and in the those who put their lives on hold to stand up for their community. This week, Lake Ontario Waterkeeper launches a new feature in our coverage of the Nelson hearing. Read on to learn more about why this process matters so much - what is really at stake and who stands to lose, and to gain, from the Joint Board’s decision.
The hearing into a new quarry proposed by Nelson Aggregate on the Niagara Escarpment has passed a crucial milestone: the industry has finished presenting its case. Now it’s the public’s turn to bring evidence before the Joint Board. That evidence has come down to one thing so far: water.
The public is represented at the hearing by local government (the City of Burlington and the Region of Halton), Conservation Halton, the Niagara Escarpment Commission, and a truly grassroots group of citizens known as Protecting Escarpment Rural Land (PERL). Working together to oppose the new quarry, these parties started their side of the case with evidence on hydrogeology, focusing on what a new quarry would do to groundwater, wetlands, and downstream flow.
There is a fundamental difference in the way that water movement on the site is characterized by hydrogeologists hired by the company and those that represent the public interest.
Ray Blackport, the hydrogeologist giving expert evidence on behalf of PERL, was clear in his testimony: Nelson mischaracterized the wetland hydrology and hydrogeology. The water regime and wetlands near the property will be worse off if a new quarry is dug.
Blackport found that the wetlands are not sitting on the impervious layer of rock described by Nelson’s witnesses. Instead, water moves up from the ground and back into it through fractures or patches of conductive bedrock. Put simply, the wetlands are leaky. If enough water is drawn away from them by a new quarry, they could lose their storage capacity and dry up completely. The mitigation measures proposed by Nelson just won’t work under these conditions.
With qualified hydrogeologists testifying on both sides of this case, the Joint Board has a daunting task. They must understand the complex science enough to weigh one expert’s testimony against another.
This task is made easier by a few characteristics of the quasi-judicial process. The Board doesn’t need to identify the truth and write a textbook on groundwater in the area. Instead, they need only determine, based on the evidence, whether Nelson has proven its case on a balance of probabilities. As the proponent pushing for a new quarry, Nelson bears that burden.
This is where the science and the law meet narrative. For years, community members have watched as their homes and barns shudder and crack. Explosions from blasting at the nearby quarry are the obvious culprit, but Nelson insists there is no positive proof showing their blasting causes cracks. The company has shifted the burden of proof to the public in this anecdotal realm, refusing to take responsibility in the absence of evidence against them.
This kind of denial in the absence of proof won’t fly at the Joint Board hearing. Unlike a criminal defendant, who is innocent until proven guilty, Nelson is seeking a new privilege from the government. To earn the privilege of approval to quarry on the Niagara Escarpment, the company must prove its operations will not negatively affect water or the environment.
The hearing is scheduled to continue until at least December 2011, with the bulk of that time devoted to the public’s case. So far, the public’s evidence has been strong. A new quarry will affect water. It could even drain wetlands completely. For the sake of the wetlands, creeks, and the lake that relies on these source waters for rejuvenation, we hope the balance of probabilities comes down on the side of precaution and, in turn, protecting the public interest in water.
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