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Court makes decision in Hawkeye Lake quarry dispute

MNRF received applications for the same pit from Milne Aggregates and Lempiala Sand & Gravel.
Gravel pit generic
(Stock photo)

THUNDER BAY — Two companies wanted to excavate aggregate in the same pit near Hawkeye Lake, but only one company's application was accepted.

The decision by the Ministry of Natural Resources and Forestry to process an application from Milne Aggregates Inc. five years ago ended up being challenged not once but twice in court by Lempiala Sand & Gravel.

Now, after a decision issued last week, the matter may finally be resolved.

Although Lempiala won a partial victory in the first court hearing, the second hearing has left Milne at the front of the line for the right to take sand and gravel from Crown land at a site known as the Fowler Pit.

Milne first submitted paperwork in February 2018.

By May, the MNRF concluded that the application was complete, even though the company still had to provide updated technical reports and a cultural heritage report.

The required documentation was handed in by August.

In the interim, in July 2018, Lempiala had filed its own application, but the ministry informed Lempiala it was second in line because of ministry policy to consider applications on a first come, first served basis.

The next year, Lempiala appealed the MNRF's decision to Divisional Court, the branch of Superior Court that reviews government action in Ontario.

A panel of three judges agreed with Lempiala that the ministry failed to follow its own policies in the handling of the Milne application and that it had failed to provide a reasoned explanation.

Although the court dismissed Lempiala's request to order the ministry to consider the company's own application, it quashed the MNRF's finding that Milne's initial application was complete, ordered it to pay Lempiala's court costs of $30,000, and remitted the matter back to the ministry for reconsideration.

In June 2022, the ministry provided both companies with its reconsidered decision, in which it explained why it departed from policy in its handling of Milne's application, and confirmed its conclusion that the application was complete in March 2018.

Lempiala then returned to Divisional Court, this time seeking a judicial review on the basis that the MNRF's explanation for not sticking to policy was inadequate.

It also argued that the ministry should have concurrently reconsidered the two companies' applications to determine which one was complete first.

In a judgment released last week, the court dismissed the request for judicial review, saying the ministry's explanation met "the required standard of reasonableness" and that it was not necessary for the MNRF to concurrently reconsider Lempiala's application.

This time, Lempiala was ordered to pay the ministry's court costs in the agreed amount of $15,000.

 

 



Gary Rinne

About the Author: Gary Rinne

Born and raised in Thunder Bay, Gary started part-time at Tbnewswatch in 2016 after retiring from the CBC
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