STRATEGIC LAWSUITS AGAINST PUBLIC PARTICIPATION
Win whets appetite of green warriors
JOHN BARBER
E-mail John Barber | Read Bio | Latest Columns
February 3, 2009
You'd think that Rick Smith and David Donnelly would be happier. The two green warriors - Dr. Smith as head of Environmental Defence Canada, Mr. Donnelly as scrappy lawyer in the same cause - won the provincial policy lottery last week when the Ontario Municipal Board dismissed a developer's demand that they and their allies pay more than $3-million to cover the alleged cost of their opposition to a huge resort development on Lake Simcoe.
It turned out that the board agreed with everything the two had always said: that they hadn't acted unreasonably in opposing the marina at Big Bay Point, that the developer had no right to recover costs and that its extravagant claim was meant to have a "chilling effect" on other individuals and groups opposing development.
But defending the case cost hundreds of thousands of dollars, the environmentalists say, and the OMB decision does nothing to discourage another so-called SLAPP (strategic lawsuit against public participation) tomorrow.
"Our hope now is that the province moves to introduce an anti-SLAPP statute," Dr. Smith said.
The victory at the OMB came despite "the indifference of the provincial government," according to Mr. Donnelly, "which was a party throughout this matter, had two lawyers taking notes the whole time but did not have one thing to say about it."
Just as disturbing to the two environmentalists is the spectre of history repeating itself just down Highway 400 near the towns of Bradford and Bond Head, where the province is once again vacillating in the face of a major development proposal that appears to contradict its much-lauded new planning laws and policies.
"It's very clear the government is chickening out," Dr. Smith said, adding that the Big Bay Point development "is only a symptom of a larger problem" in southern Simcoe County involving "some of the largest, most destructive development projects in Ontario history."
"The province is undermining its own much-ballyhooed Places to Grow Act and Greenbelt plan by aiding and abetting any number of crazy new proposals leapfrogging all over Simcoe County," he said.
Bitterness over Big Bay Point first emerged in June, 2007, a few weeks before a scheduled OMB hearing, when the province unexpectedly withdrew its opposition to the resort and abandoned the case, based on planning and environmental law, it had planned to make against it at the hearing.
The move came after negotiations led by provincial development facilitator Paula Dill produced a settlement agreed to by the province, local governments and the developer. But that left the environmentalists and local residents alone to make the case against the project - and alone again later as they fought off a $3.2-million lawsuit.
And the same process appears to be happening all over again, according to the environmentalists, with the McGuinty government postponing another OMB hearing into an even larger Simcoe County development as Ms. Dill negotiates privately with the parties involved.
This proposal, championed by a consortium that includes Geranium Corp., the Big Bay Point developer, aims to transform the sleepy village of Bond Head into a new town of more than 100,000 people centred on Highway 400 and County Road 88. Once again, the province opposed the plan and prepared to argue against it at the board, saying that it contravened laws that ban sprawl in favour of intensified development in established nodes - in this case Barrie.
Once again, it has pulled back while its "facilitator" negotiates.
"What the hell is going on?" Dr. Smith asked. "If it's contrary to the act, what is there to talk about?"
Mr. Donnelly is now unmuzzled after months of litigation. They may have scored a stirring victory, but the two watchdogs clearly have no intention to abandon their post.
jbarber@globeandmail.com
