Minister shuns legal advice on OMYA
Stockwell won't wait for court to decide if firm can take 4.5M litres of water daily from Tay
Dave Rogers, with files from April Lindgren
The Ottawa Citizen
Friday, September 27, 2002
Ontario Environment Minister Chris Stockwell will determine whether a Swiss multinational company can remove up to 4.5 million litres of water daily from the Tay River near Perth -- before a court can decide the issue.
Opponents of the water-taking plan say the ministerial hearing of the OMYA Canada Inc. appeal shows the company expects a favourable political settlement by bypassing the courts.
Frank Roy, a spokesman for the Tay River Legal Defence Fund, said it looks as if the environment ministry is caving in to threats by OMYA to discourage investment in Ontario unless the company gets its way.
Doug Watters, a lawyer for the Environment Ministry, said he advised Mr. Stockwell that he supported a suggestion from the Canadian Environmental Law Association that it would be "more practical" for divisional court in Ottawa to hear OMYA's appeal first, but the advice was ignored.
"There was a submission made to the minister that the court hearing come first," Mr. Watters said. "The bottom line was that it was a more practical approach."
Mr. Watters said he never discovered why Mr. Stockwell ignored his advice. He added appeals of Environmental Review Tribunal decisions are rare.
Asked whether he was considering the appeal because of company pressure, Mr. Stockwell refused to comment, adding that anything he said about either side would be construed as biased.
Company spokesman Larry Sparks was asked about claims OMYA was trying to intimidate the Ontario government.
Mr. Sparks said: "OMYA was continuing to assert its long-term commitment to economic development and job creation in Ontario, while also reasserting its concern about its unresolved two-year struggle to obtain a water permit.
"For the last two years, each and every scientific analysis done by the federal government, provincial government and independent experts has found that the proposed use of water in Perth is environmentally responsible and sustainable."
The Environmental Review Tribunal ruled in February that OMYA can extract only 1.5 million litres a day from the shallow, winding river for the next six years.
OMYA mixes river water with ground-up white calcium carbonate to make a thick slurry used to produce paper, paint, plaster board and toothpaste. The slurry, which is about the consistency of mustard, is shipped by truck and train throughout North America.
In June, company president Olivier Chatillon appealed the tribunal decision to divisional court and then wrote to Ontario Premier Ernie Eves, saying he will advise other investors not to do business in Ontario unless OMYA gets the water it wants.
"As you know, I have long been an active supporter of investment in Ontario, within our own company, as a trade counsel to the French Embassy and with my colleagues in the mining industry here and in Europe," Mr. Chatillon wrote the premier.
"The two-year saga over our water permit has placed me in an extremely awkward situation. When asked the very important questions about red tape and regulatory burden, it is hard not to reflect on the fact that after two years, and although no provincial, federal or independent study has ever recommended against our project, it remains stalemated awaiting a government go-ahead."
In August 2000, the Ontario Ministry of the Environment gave the company a permit to extract 1.5 million litres of water from the river daily until 2008, when it would have to apply for another permit to keep extracting water. In 2004, the original permit would have allowed OMYA to expand production by tripling its take from the river to 4.5 million litres a day.
Mr. Chatillon said OMYA is not planning to close its Perth plant in the near future, but if it couldn't make enough calcite slurry to meet market demand, it would move production elsewhere.
OMYA must present its case by Sept. 30 and the Canadian Environmental Law Association, which represents residents and cottagers, must present its argument by Oct. 28.
"If Mr. Stockwell decides to accede to OMYA, the judicial process will be short-circuited," Mr. Roy said. "The company will get its water and won't have to report to the public about the condition of the river.
"Instead of letting the appeal go through the courts to establish whether the law is right, the minister is going to take the matter into his own hands and will respond to the force of OMYA's letter. We are talking about whether a company like OMYA can write a threatening letter and influence government. Who runs the province: OMYA or the government of Ontario and its people?"
OMYA lawyer Alan Bryant said that under provincial regulations, appeals of Environmental Review Tribunal decisions go to the minister on issues of fact and policy, and to the courts on legal issues.
"All the scientific evidence, the independent consultants hired by OMYA, and the Department of Fisheries and Oceans consultants, agreed to a 10-year permit and 4,500 cubic metres (4.5 million litres) per day," Mr. Bryant said.
"We are appealing first to the minister because we cannot get to the courts until sometime in 2003."