OMB process unfair to citizens
From Citizens at City Hall in Hamilton
Ontario’s Environmental Commissioner says citizens are at an enormous disadvantage in fighting development proposals like big box complexes. His annual report released yesterday in particular decries the lack of a level playing field at the Ontario Municipal Board (OMB) where several Hamilton organizations now find themselves.Three small citizen groups are now facing off at the OMB against the world’s largest corporation. Hamiltonians for Progressive Development, Environment Hamilton, and a Winona residents group called CADONE are fighting recent city approvals of two Wal-Mart centred power retail centres. And a newly formed Dundas residents’ organization is before the OMB over a proposed self-storage facility in Cootes Paradise.
Near the beginning of his 2008-09 report submitted yesterday to the provincial legislature, Environmental Commissioner Gord Miller says these types of groups face a steep uphill battle.
“The system is hugely weighted in favour of those in the development industry, who have the resources, knowledge and experience (and access to a stable of planning, environmental and other professionals with specialized expertise) to skillfully argue their case before the Ontario Municipal Board,” Miller argues. “When the stakes are in the many millions – sometimes billions – of dollars, the resources that developers are prepared to invest to overcome residents’ objections far surpass the capacity of most citizens groups, environmental organizations, and even conservation authorities and municipalities.”
The Commissioner points to the example of the billion dollar Big Bay Point Resort on the shores of Lake Simcoe that was unsuccessfully opposed by citizen groups. The developer, Kimvar, spent $3.2 million on its side of the case, and then turned around and demanded that the citizens repay them – an action Miller classes as a SLAPP (Strategic Lawsuit Against Public Participation).
While the OMB rejected the developer’s demand for costs, the citizens were forced to spend heavily to oppose the SLAPP on top of the costs they incurred in the original OMB hearings. Miller argues “The public’s right to participate in decision-making over matters of public interest is a cornerstone of our democratic system” and urges the province to level the playing field for such disputes.
“The Environmental Commissioner’s Office sees a need for provincial legislation that would put both sides of development disputes on equal footing,” concludes the report. “Such legislation could serve to halt SLAPP suits in their tracks. It also could provide a means for the public to access financial and other resources in order to exercise their participatory rights in planning approvals and other contexts that have a significant bearing on the environment.”
The Hamilton groups challenging the Wal-Mart developments on Centennial Parkway and Fifty Road disagree with a city council decision to exempt the sites from provincial rules requiring protection of employment lands. But so far, the province has not stepped up to defend its policies, leaving the groups to raise money to hire lawyers, planners and other experts required at the OMB hearings.
The Dundas self-storage proposal was unanimously turned down by councillors in the face of huge resident opposition, but city planning staff endorsed it, something the developer is expected to trumpet in his appeal to the OMB.
That’s led residents to form the “Protect Our Dundas” group and hire a lawyer to represent their views at the upcoming hearing. Over 50 individual residents have also obtained participant status in the process – requiring each to submit a written statement, present it in person, and be cross-examined by the developer’s lawyer.
There have been two pre-hearings on this matter and four weeks have been set aside in January for the full hearing. The OMB processes on the big box plans have not yet begun.