Bruce County - West Road OMB Atcheson Order March 2012 PL091020

ISSUE DATE:
March 1, 2012
PL091020
Ontario Municipal Board
Commission des affaires municipales de l’Ontario
IN THE MATTER OF subsection 17(24) of the Planning Act, R.S.O. 1990, C. P. 13, as amended
Appellant: Red Bay and Howdenvale Resident Group
Subject: Proposed Official Plan Amendment No. 127
Municipality: Bruce County
OMB Case No.: PL091020
OMB File No.: PL091020
IN THE MATTER OF subsection 17(36) of the Planning Act, R.S.O. 1990, C. P. 13, as amended
Appellant:
Appellant:
County of Bruce
Red Bay and Howdenvale Resident Group
Subject: Proposed Official Plan Amendment No. 116
Municipality: County of Bruce
OMB Case No.: PL091020
OMB File No.: PL100777
A P P E A R A N C E S :
Parties
County of Bruce
Ministry of Municipal Affairs and Housing
Saugeen Ojibway Nation
The Red Bay and Howdenvale Resident
Group
Counsel
G. Magwood and Julia Abouchar
R. Boxma and S. Lee
M. McPherson and Andrea Bradley
L. Kowal
MEMORANDUM OF ORAL DECISION DELIVERED ON JANUARY 17, 2012
RESPECTING OFFICIAL PLAN AMENDMENT No. 116 OF THE COUNTY
OF BRUCE, AND A DECISION DELIVERED BY J.P. ATCHESON
RESPECTING OFFICIAL PLAN AMENDMENT No. 127 OF THE COUNTY
OF BRUCE AND CONTINGENT ORDERS OF THE BOARD
There was a hearing of matters relating to the outstanding appeals against
Official Plan Amendment No.116 to the County of Bruce Official Plan (BCOPA 116) and

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Official Plan Amendment No. 127(BCOPA 127) to the County of Bruce (County) Official
Plan (OP).
BCOPA 116 is an amendment that forms part of the County’s five year OP
review and as such is subject to the approval of the Ministry of Municipal Affairs and
Housing pursuant to the requirements of Section 26 of the Planning Act.
BCOPA 127 is a local amendment which has been exempted from the Minister’s
approval pursuant to Ontario Regulation 235/99, and is governed by Section 17 of the
Planning Act.
COUNTY OF BRUCE OFFICIAL PLAN AMENDMENT No. 116
The Board was advised at the commencement of the hearing that the Parties had
reached a settlement with respect to the outstanding issues associated with BCOPA
116 as set out in Minutes of Settlement, dated May, 16, 2011, between the Province of
Ontario (Province) and the County. These matters were considered by the Ontario
Municipal Board (Board) in its decision of June 30, 2011. The Board at that time
withheld its final approval pending consideration of the consolidated matters now before
this panel. Both Counsel for the Red Bay and Howdenvale Resident Group (RBHRG)
and the Saugeen Ojibway Nation (SON) advised the Board that they were withdrawing
their appeals to BCOPA 116 on the understanding that this Amendment would be
modified in the manner set out in the Minutes of Settlement, Exhibit 1, at this hearing,
and as such, would not affect their appeals with respect to BCOPA 127.
It was the determination of the Board, after considering the submission from
Counsel for the RBHRG, that they no longer had any issues with respect to the purpose
and content of BCOPA 116 and that similarly, based upon the submissions of Counsel
for SON, that their concerns with respect to BCOPA 116 had been accommodated as
well by the Ministry’s decision dated June 21, 2010, Exhibit 17, Tab 9, as further
modified by the Minutes of Settlement, Exhibit 1.
The Board heard uncontradicted planning evidence from Mr. David Smith, a
qualified Land Use Planner who is employed by the County as a Senior Planner. Mr.
Smith has been deeply involved in the matters before the Board. He testified that
BCOPA 116, as approved by the Minister and as modified by the Minutes of Settlement,

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was consistent with the Provincial Policy Statement, 2005 (2005 PPS) and represented
good planning for the County. Counsel for the Ministry of Municipal Affairs and Housing
submitted that the Province was satisfied that the Provincial interests were met by the
settlement and that as modified, the BCOPA 116 should be approved. Based upon Mr.
Smith’s uncontradicted testimony and the submissions of Counsel present, the Board
was satisfied that BCOPA 116, as approved by the Minister and as modified by the
Minutes of Settlement, does not offend any Provincial interests, is consistent with the
2005 PPS, addresses the concerns previously expressed by RBHRG and SON, and
represents good planning for the County.
It was the determination of the Board in an oral decision on January 17, 2012,
that the appeals against BCOPA 116 are dismissed in part and that BCOPA 116, as
approved by the Minister in a Notice of Decision dated June 21, 2010, Exhibit 17 Tab 9,
be further modified, as set out in the Minutes of Settlement dated May 16, 2011, being
Exhibit 1, to this hearing and as further modified, be approved.
The Board on a contingency basis ordered that it would further approve BCOPA
116 as set out in this decision, but would withhold its final order with respect to the
Amendment of BCOPA 116, pending receipt of a modified BCOPA 116 incorporating
the changes determined by the Minister in the Notice of Decision dated June 21, 2010,
Exhibit 17, Tab 9, in addition to the changes set out in the Minutes of Settlement Exhibit
1, and in a form satisfactory to the County and the Province.
BACKGROUND AND EVIDENCE REGARDING OFFICIAL PLAN AMENDMENT No.
127
Summary of the Issues
The purpose of BCOPA 127 is to designate an existing local road connecting
County Road 13 with County Road 9 to the north (the West Road) as a County Collector
Road
The Board, during the course of this almost three week hearing, heard from 11
witnesses who were qualified by the Board in their respective fields of knowledge, as
set out in Appendix “A”, and received 59 Exhibits as set out in Appendix “B”. The Board
also heard from two lay witnesses who are members of RBHRG. They spoke against

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the proposed amendment. The lay witnesses expressed concerns about the need for
the West Road to be added to the County Road system, and the social, economic,
natural heritage and environmental impacts that might occur from road widenings in
both the urban and rural areas along its route if the West Road was designated as a
County Collector Road. They expressed concerns that the re-designation of the West
Road was not cost-effective, would negatively impact taxes, and that alternative routes
had not been considered by the County. They contend that the process and
determination followed by the County and its area municipalities to transfer roads was
not transparent and not in the public interest. They were supported in their concerns
about potential construction costs and alternative routes by the testimony of Mr.
Thwaites, a Transportation Engineer retained by RBHRG.
The Board also had the benefit of the advice and testimony of Elder Chegahno of
the Chippewas of Nawash Unceded First Nation (CNFN), Chief Randall Kahgee of the
Chippewas of Saugeen First Nation (SFN) who, with CNFN, comprise the SON, and Mr.
Linklater, the Coordinator for SON’s Environmental Office and a member of CNFN.
The evidence in this appeal is voluminous and too extensive to be completely
reflected in this Decision.
The essential decision for the Board with respect to BCOPA 127 is to determine
if the County has fulfilled its obligations in complying with the statutory notice, policy
tests set out in Provincial legislation and its own planning documents, whether the duty
to consult and accommodate with First Nations was undertaken and appropriate, and
whether the BCOPA 127 is consistent with Provincial interests and represents good
planning for this area of the County.
While the Board has carefully considered all of the evidence and submissions
provided in this appeal by the Parties, the critical evidence necessary to determine
whether the above tests have been met is the focus of this Decision.
The Board will provide a summary of the salient planning issues raised by the
Parties with respect to BCOPA 127, its sole purpose being to change the road
designation for the West Road in the County Official Plan from a “Local Road”
designation to a “Collector Road” designation. The planning issues raised by the
Parties are:

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1. Does County By-law 4214 transferring lower tier roads to the County
comply with subsection 24(1) of the Planning Act?
2. Is an Amendment to the OP necessary to establish the West Road as a
“County Collector Road” to meet the County’s Collector Road Standards
and if so, what is the suggested modification?
3. Has the County demonstrated that there will be no negative impacts in, or
adjacent to, significant natural heritage features consistent with the 2005
PPS, and in conformity with the OP, if the West Road is re-designated as
a “County Collector Road”?
4. Prior to assuming and designating the West Road as a “County Collector
Road”, did the County demonstrate that the proposed facility was an
efficient and cost-effective approach to accommodate projected needs
and is this development consistent with provincial policy and in conformity
with the OP?
5. Did the County assess the social, economic, environmental, and land use
impacts on the existing character of the rural and recreational areas and
the aboriginal heritage along the County road corridor?
6. Was the Constitutional duty to consult with the SON met with respect to
BCOPA 127?
Background
The sole purpose of BCOPA 127 is to change the road designation on Schedule
“B” Transportation to the OP for the road known locally as the West Road from a “Local
Road” designation to a “Collector Road” designation under the jurisdiction of the
County.
The West Road as shown in BCOPA 127, Exhibit 2, Tab 2, extends northerly
from its intersection with Bruce County Road 13 to its intersection with Bruce County
Road 9 and is composed of a number of existing local roads including West Road,
Daddy Weir Road, Howdenvale Road, Huron Road and Bryant Road. The West Road,
as shown on the Schedule to BCOPA 127, is some 29 km in length and is comprised of

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sections of approximately 19 km of asphalt /surface treated (tar and chip), and some 10
km of gravel surface. According to the County Planner, the right of way widths vary
along its length and there is no single road standard that can describe the physical
characteristics of this roadway. Similarly, the existing land uses found along its length
are varied and include farm lands, rural residential uses, undeveloped forests, wetlands,
seasonal recreation properties and vacant lands. The existing road also passes through
some Karst areas, mineral resources areas, several ANSIs, some Provincially
Significant Wetlands (PSW) and local settlement areas, all of which are set out on
Schedule “A” Land Use North Section to the OP, Exhibit 58.
Certain lands as set out at Exhibits 33 and 58 in the area of the West Road are
the subject of a SON land claim.
The character and land uses along the West Road along is shown in a series of
Photographs at Exhibit 2, Tab 4.
In 2003, the County, together with representatives from its constituent
municipalities, set out terms of reference for a Bruce County Road Designation Study to
determine whether there should be additions or deletions to the County road system
which is made up of local roads and county roads under their respective jurisdictions.
The need or rationale for the review stemmed from:
1. The 1997 and 1998 Provincial Highways Transfers;
2. Municipal Amalgamations;
3. Changing traffic patterns; and
4. The County’s recent review of County bridges on Local Roads.
The result of this in-house work was the revised Bruce County Roads
Designation Study Final Report dated September 2, 2004, Exhibit 2, Tab 20. The report
was adopted by County Council and resulted in the County, among other things,
transferring the West Road to the County’s jurisdiction. The transfer of the West Road to
the County was authorized by By-law 4214, Exhibit 2, Tab 22, passed by County
Council on November 3, 2005, pursuant to the authority granted to the County by
subsection 52(1) of the Municipal Act, 2001.

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At the time the West Road was assumed by the County, the OP designated the
entire length of this road as “Local Road” on Schedule “B” Transportation (North
Section).
Subsequently in 2006, the County undertook a two-part review of its OP policies
(the five year review) and as part of this review, the County re-designated the West
Road from a “Local Road” designation to a “Collector Road” designation. The
amendment with respect to the West Road, aside from designating it a County
“Collector Road”, also set out the rural and urban sections of this road. The significance
of the determination of the rural and urban sections of the road goes to the ultimate right
of way width set out in the OP, being 30 metres for the rural sections and 20 metres for
the urban sections of a county road. According to the testimony of the County Planner,
due to the length of time it was taking to get BCOPA 99 and BCOPA 116 reviewed and
a decision issued from the Ministry, the County with the consent of the Ministry
requested that the re-designation of the West Road be removed from the five-year
review process and the OP Schedules associated with the five-year review
amendments be modified and replaced to maintain the West Road’s “Local Road”
designation.
The Ministry agreed to this modification and approach according to Mr. Evans,
the Ministry’s Planner, and accepted a modified Transportation Schedule, leaving the
West Road designated as a “Local Road” in the OP amendments subject to the
minister’s approval.
The County then commenced the process of preparing and passing BCOPA 127
and sent notice as prescribed by the regulations on August 25, 2009, of a public
meeting to consider BCOPA 127. Notice was also sent to SON in accordance with
County policy. This amendment was deemed to be a local matter outside of the fiveyear
review process and as such, was exempt from ministerial approval. This position
was confirmed by both the Ministry and County planners. The County’s Notice of
Decision passing BCOPA 127 was dated October 15, 2009, being Exhibit 7, and was
sent to SON and others as prescribed by the regulations
BCOPA 127 made no reference to the rural or urban sections of the West Road
which is different from the Transportation Schedules passed as part of the five-year

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review amendments, as noted earlier. It is also clear from the evidence that SON was
notified of this amendment but did not attend the pubic meeting and did not make any
written or oral submissions, or requests about this amendment to County Council prior
to the Council adopting BCOPA 127 and issuing its Notice of Decision.
It appears that SON became aware of BCOPA 127 as a result of
communications with members of RBHRG.
It is also clear from the testimony of Mr. Evans, that based upon the comments
and review associated with the five-year review process where no Provincial agency or
SON raised any concerns about the West Road’s designation as shown in those official
plan amendments, that he determined there was no Provincial interest involved with
BCOPA 127 and did not circulate this amendment to other Provincial Ministries or to
SON. The Province provided no comments on BCOPA 127 to the County Council prior
to its consideration of this amendment.
BCOPA 127 was subsequently appealed by RBHRG and the Board in a decision
dated March 31, 2010, denied a County motion to separate BCOPA 127 from, or to
consider it prior to, the determinations associated with the five-year review amendments
BCOPA 99 and BCOPA 116.
SON never appealed BCOPA127. However, the Board subsequently in its
decision dated June 30, 2011, made SON a Party to the proceedings and directed that
the Province remain an active Party in the aboriginal consultation process for the West
Road, as it related to OPA 116 and 127, Exhibit 37.
These facts are not in dispute.
The Evidence
The County Planner in his testimony, opined that the change in road
classification was not in conflict with transportation objectives of the OP as set out in
Sections 4.6.1 and 4.6.2. He sees OP Amendment No.127 as a technical or
“housekeeping” amendment. He contends that the current OP imposes no conditions on
the County with respect to the assumption of a roadway and imposes no qualifications
on, or when, a roadway maybe classified as a “Collector Road”. He freely admitted that

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the road classification system in the OP is a functional classification system but that the
OP imposes no minimum standards of construction or operation other than to suggest in
Section 4.6.3.5 that the minimum standard road width for a County Road shall be 30
metres and that this gives the County the authority to take road widenings as part of
development applications or approved public works.
Mr. Smith, the County Planner, opined that the OP does not establish any tests
for the assumption of a roadway by the upper tier municipality or for the determination of
the preferred classification of a roadway under the County’s jurisdiction. Mr. Smith
proffered that the only test to be applied was one of “good planning” which to him
means:
1. Was there an extensive agency and public review process?
2. Was there an extensive review by the decision making body?
3. Was the decision making body and the public aware of the ramification of
their decision?
Mr. Slade, the planner retained by RBHRG, opined in his testimony that Section
4.6.2 of the OP would apply, requiring an Official Plan Amendment before the County
assumed the West Road when it states in part:
4.6.2 An Official Plan Amendment to Schedule B to this Plan is required when
major re-routing of roads are made to the Provincial highways and County road
system indicated on Schedule B.
It was his testimony based upon this section of the OP, that the County should
have undertaken an Official Plan Amendment before assuming the West Road which he
opines should be considered a re-routing. It was his opinion that without such an
amendment, Bruce County By-law 4214 assuming certain roads was not in compliance
with Section 24(1) of the Planning Act.
Mr. Dorfman, the planner retained by SON, in his testimony, made no such
assertion other than to conclude that:
The basis for the road assumption was vague and not based on a rigorous
assessment of the need of the social and environmental implications of the future

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Improvements according to a Schedule “C” Municipal Class Environmental
Assessment.
He further opined that the mere designation of the West Road as a Collector
Road in the OP did not constitute development and did not require an environmental
assessment as a justification for the OP designation.
It was Mr. Dorfman’s opinion that if, and when, the County contemplated new or
improvement works for the West Road, that these works and their potential impacts
must be assessed through a fulsome Municipal Class Environmental Assessment
process. He opined that this was a separate process from the planning process to
designate the road in the first place.
Mr. Slade in his testimony found at Exhibit 38, reviewed the land use
characteristic for the various sections of the West Road and concluded that this road as
a “County Collector” road would not be consistent with a number of the sections of the
2005 PPS dealing with Transportation, Natural Heritage Features and the Wise Use of
Resources. He opined that the need for this road has not been demonstrated as
required by the PPS and that the impacts on Natural Heritage and Cultural Heritage
features and their functions had not been assessed, as required by the PPS.
In particular, he sees the change in designation of this road from a “Local” Road
to a “County Collector” Road as development, as defined by the PPS.
The 2005 PPS defined development as follows:
Development:
means the creation of a new lot, a change in land use, or the construction of
buildings and structures, requiring approval under the Planning Act, but does not
include:
a. activities that create or maintain infrastructure authorized under an
environmental assessment process;
The Board heard expert testimony from witnesses for both SON and RBHRG of
the potential richness of the area in proximity of the West Road for Natural Heritage and
Cultural Heritage features and their concerns that the widening of this road to a “County
Collector” Road standard could negatively impact these features and their functions. It

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was their position that the County had not assessed these impacts and that this should
have formed part of the background research in support of the original assumption of
the road and BCOPA 127, and on this basis the Amendment should not be approved.
Mr. Knox, the County Engineer, reviewed the history associated with the
development of the revised Bruce County Roads Designation Study Final Report, dated
September 2, 2004, Exhibit 2, Tab 20. This study formed the basis for the transfer of the
West Road to the County. It is clear to the Board from Mr. Knox’s testimony that the
County with its municipal partners undertook an extensive review of the road network
system within the entire County and used both objective and subjective criteria to
determine which roads would be downloaded to area municipalities, and alternatively,
which roads would be uploaded to the County.
It is also clear that Mr. Knox, when he spoke to the Town of South Bruce Council
on September 15, 2003, Exhibit 2, Tab 19, knew that an OP Amendment would be
required to designate the West Road as a “County Collector” Road. The County
Engineer, in his testimony, indicated that his department uses a maintenance and level
of service classification system to determine a roads classification and that the West
Road, in his opinion, would be a class 4 road under that system, as noted in the revised
Bruce County Roads Designation Study Final Report. It was his testimony that a class 4
road under this classification system would translate into ‘County Collector’ Road in the
functional designation system found in the OP. Mr. Knox freely admitted that all sections
of the West Road did not meet the Ontario Good Road Criteria for a ”County Road” that
formed a part of the Bruce County Roads Designation Study review. He opined that
other matters, such as snow ploughing, county road connectivity, the requests of lower
tier municipalities, and the disposition of road costs among the County and its area
municipalities, all formed part of the deliberation of the County Highway Committee and
ultimately County Council.
Mr. Knox then reviewed the actions of the County in its attempt to secure
Infrastructure Stimulus Funding, as set out in its application found at Exhibit 26. Clearly,
works on the West Road were initially part of this application. The County went as far as
to draw up a Land Purchase Policy for the West Road, Exhibit 28, and determined in
that document that it would seek a road widening of 86 ft for the rural areas of the West
Road, as opposed to the 30m (100 ft) mandated by OP policy 4.6.3.5. The County also

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commenced some preliminary environmental impact work, undertaken by the consulting
firm Aquatic and Wildlife Services, for portion of the West Road that was contained in
the Infrastructure Stimulus Funding application. This report is found at Exhibit 34. The
County, at that time, had also determined that the works associated with the
Infrastructure Stimulus Funding would be a Schedule “A+” project under the Municipal
Class Environmental Assessment process. Schedule A+ projects only require
notification of the works and are not normally subject to a “bump up” Part II Order.
It is also clear from the evidence that the County had made several five-year
capital budget forecasts for works on the West Road based upon it being a County
Collector Road, Exhibits 24 and 25, and that these budget forecasts were adjusted and
amended annually.
Mr. Knox freely admitted, both in chief and under cross-examination, that the
County abandoned the West Road project and reallocated the Infrastructure Stimulus
Funding after receiving written objections from the ratepayers through their then
Counsel, Mr. Douglas Pratt. The Ministry of the Environment, after notice from Mr. Pratt,
initially made no determination with respect to the Schedule “A+” determination of the
County as it was advised that the County had abandoned any project or any new works
on the West Road.
It is clear to the Board from the testimony of Mr. Armstrong, the Regional
Environmental Planner employed by the Ministry of the Environment, that the Ministry,
from the information provided to it and through a series of discussions with the County,
is of the opinion that any new road works beyond normal maintenance for the West
Road should be reviewed for its entire length, should not be divided into small
segments, and would require a fulsome environmental assessment.
It was Mr. Armstrong’s advice to the County and to this Board that such an
undertaking would require a Schedule “B” or Schedule “C” Municipal Class
Environmental Assessment, depending on the estimated cost of the project, and that
this must be done before any new works could be undertaken on the West Road. Such
Scheduled Environmental Assessments would require full public pre-consultation and
could be subject to a Part II Order, while a Schedule “A+” project merely requires
notification of the works and is not normally subject to a Part II Order.

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Mr. Armstrong confirmed, in his testimony, that the Municipal Class Environment
Assessment Process was a requirement for any new municipal infrastructure works and
was independent of the Planning Act process to designate an existing, publicly travelled
road in an OP.
Mr. Dorfman, in his testimony, opined as well that the designation of an existing
road in an OP did not constitute development as defined by the 2005 PPS. He opined
that it was the new works that the County might propose that would constitute
development or works in this case, and which must satisfy the rigours of a fulsome
Environmental Assessment Process and its associated consultation process.
The Board heard from a number of expert witnesses retained by SON and the
RBHRG with respect to the richness of the Natural Heritage Features and Functions
found in the area. The Board was also told by a SON expert of the archaeological and
cultural heritage richness of the area in proximity to the West Road and the importance
of these archaeological and cultural heritage features to the traditions of the First
Nations people. The Board was also made aware of the fishing rights, treaty rights and
SON’s land claims, as set out at Exhibits 33 and 54, in the area of the West Road
The experts witness statements in the areas of Natural Heritage, Cultural
Heritage and native fishing rights are found at Exhibits 13, 38, 52 and 53. Under crossexamination,
many of these witnesses were unaware of the County of Bruce’s
commitment to consult on any new municipal road project along the West Road, as set
out in a letter dated June 20, 2011, from the Warden of the County to Chief Randall
Kahgee of SFN and Acting Chief Scott Lee of CNFN, Exhibit 12, Tab 15. They freely
admitted that this letter was reassuring, in that the County would consult with SON prior
to undertaking any new work on the West Road and that such works would be the
subject of a full Municipal Class Environment Assessment.
Dr. Chow-Fraser, in her testimony, opined that from her preliminary work in the
Red Bay Howdenvale area, she found that the coastal wetlands in this area and their
tributary streams provided significant habitat for the spotted turtle as found in the Petrel
Point Nature Reserve. It was her opinion that this environmentally sensitive region had
not been fully assessed and that a full environmental assessment of the area was
required before any public road works were undertaken.

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The Board also had the benefit of the advice and testimony of Elder Chegahno of
CNFN. He advised the Board of the traditional teaching of the First Nations peoples and
his knowledge of both medicinal and ceremonial plants, such as Ironwood Balsam,
Dogwood, and Sweet Grass just to name a few, found in the Bruce Peninsula, and in
particular, along and near the West Road area. He reinforced the traditional First
Nations reverence and respect for “Mother Nature” and opined that all aspects of
development must be viewed from that perspective. He made specific reference to large
pine trees located in proximity to the West Road between Red Bay and Howdenvale.
Elder Chegahno freely admitted under cross-examination that he was not aware
of the County Warden’s letter of June 20, 2011, Exhibit 12, Tab 15, but proffered upon
reviewing it that it represented a sound first step in the consultation process for any new
works along the West Road.
The testimony of the witnesses on Natural Heritage, Cultural Heritage and First
Nations rights and claims in the area of the West Road was uncontradicted and
compelling.
The Board also had the benefit of the testimony of Chief Randall Kahgee of SFN
who with the CNFN comprise SON.
Chief Kahgee confirmed for the Board that his people are unclear on the
County’s intentions with respect to the West Road and that the duty to consult and
accommodate should occur early in the process. He reviewed for the Board, the fishing,
traditional treaty, and land claims right of his people which are well known to the County
and to the Province. He opined that the Crown (the Province in this case) had a
constitutional duty to consult and find accommodation with his people. He provided the
Board with his understanding of the three meetings that occurred resulting from the
Board’s decision and order of June 30, 2011, and maintained the opinion that the duty
to consult or even to establish a meaningful consultation process including capacity
funding for SON had not occurred. He suggested the Province was not meeting its
constitutional responsibilities to consult with respect to projects along the West Road,
and that in his opinion, there had not been full disclosure of the County’s intentions for
works along the West Road.

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Mr. Linklater, the Coordinator for SON’s Environmental Office, confirmed for the
Board that his office receives all notices of planning applications from the County and
that he assists the Chief and Band Council on planning and other matters. He confirmed
that SON had retained outside consultants (Neegan Burnside) to assist them in their
review of BCOPA 99 and BCOPA 116, and that their concerns with respect to those
matters had been given to the Ministry as set out in a letter dated February 2, 2010,
Exhibit 17, Tab 17. He confirmed under cross-examination that at that time, SON in its
letter to the Ministry expressed no concerns over the “Collector Road” designation being
proposed in the BCOPA 99 and BCOPA 116 amendments for the West Road. The
exhibits filed by the Ministry, SON, and the County indicate that there were ongoing
meetings and e-mails between SON representatives and the Ministry with respect to
BCOPA 99 and BCOPA 116 prior to the determination of the Ministry to issue its Notice
of Decision on these amendments.
Mr. Linklater, under cross-examination, could not confirm whether SON ever
received the notice from the County with respect to BCOPA 127. He was not aware or
could not recall if SON had ever expressed any concerns to the County about BCOPA
127 prior to County Council adopting the Amendment and issuing its Notice of Decision.
FINDINGS AND CONCLUSIONS
The Board, after carefully reviewing the evidence, the exhibits filed, and the
submissions made by the Parties, makes the following findings:
Does By-law 4214 conform to the County of Bruce Official Plan?
It is clear to the Board that the transfer of existing roads between the County and
its constituent municipalities can be undertaken without an Amendment to the County
OP as long as the roads are shown on the OP at the time of the transfer. This authority
comes from subsection 52(1) of the Municipal Act, 2001.
In this case, the roads to be uploaded to the County were shown as local roads
in the County OP prior to the assumption. The mere changing of the municipal
jurisdiction having responsibility for the road does not in the Boards finding constitute a
re-routing which requires a prior OP Amendment. The roads in question were
designated by the County OP, were physically in place, and do not constitute a new

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alignment. There is no evidence that the assumption By-law proposes to re-route any of
the roads or establishes a new future right of way in some new location not shown on
the OP at the time the assumption By-law was passed. The transfer of roads within the
County of Bruce and its constituent municipalities is an administrative matter. It does not
sanction any public works and as such the assumption the By-law would meet the test
of conformity set out subsection 24(1) of the Planning Act as the West Road was shown
on the County OP in force and effect at the time of the transfer.
The Planning Act states:
Public works and by-laws to conform with plan
24.(1) Despite any other general or special Act, where an official plan is in effect,
no public work shall be undertaken and, except as provided in subsections (2)
and (4), no by-law shall be passed for any purpose that does not conform
therewith. R.S.O. 1990, c. P.13, s. 24 (1); 1999, c. 12, Sched. M, s. 24.
It is the determination of the Board that due to the fact the West Road was shown
on the OP at the time of assumption, that the County’s assumption by-law would meet
the test of conformity, as set out in subsection 24(1) of the Act.
The Board, in this regard, is satisfied the County and its constituent
municipalities, through their revised Bruce County Roads Designation Study Final
Report, knew the implication of their actions and were acting in the public interest as
they saw it when they determined to transfer the West Road to the County’s jurisdiction.
Council’s judgement was based in part on criteria set out in the Roads Designation
study, noting that not all of the sections of the West Road would meet the Ontario Good
Roads Criteria for a “County Road” for uploading to the County. It was the evidence of
both Mr. Knox and the County Planner that other factors such as municipal requests
and a view of the “big picture” from a road network perspective formed part of the
Council’s determination in this matter. This is a determination that County Council was
elected to make.
The Requirement for an Official Plan Amendment
If the County wishes to undertake any works on the West Road beyond normal
maintenance at a local road standard, an amendment to the County Official Plan is

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required. This was recognized by Mr. Knox as far back as 2003, found effect in BCOPA
99 and BCOPA 116 being the County’s five-year review, and ultimately in BCOPA 127
now before this panel of the Board.
It is the determination of the Board that if the County wishes to undertake public
works on the West Road beyond routine maintenance at a local road standard, that an
Amendment to the County Official Plan is required. No public works beyond a local
road standard of maintenance could be undertaken as such upgrading works would not
be in conformity with the planning policies of the OP; a point recognized but to some
degree ignored by both the County Engineer and Planner, in their quest to secure
infrastructure funding for the Municipality.
The confusion for the public as to what the County’s intentions are for the West
Road in no small part arises from the actions of County Officials in their rush to secure
infrastructure funding before having all the necessary approvals for these works in
place.
If there is a lesson to be learned from the County’s actions to speed forward in a
quest for funding prior to having all its approvals in order, it is that to detour the planning
and environmental assessment process often results in a longer way around, with no
economic benefit to the municipality, additional costs, and a loss of public confidence in
the municipal planning and environmental approval process.
Planning Issues 3, 4, and 5
The Board will deal with planning issues 3, 4, and 5 as set out earlier in this
decision, as they are interrelated and go the fundamental issue as to whether BCOPA
127 should be approved in whole, or in part, or not at all.
The Board in considering its decision is cognizant of Section 2 of the Planning
Act, and in particular, the requirement that the Board shall have regard for matters of
Provincial interest. The clear evidence of the planner for the Ministry is that BCOPA 127
is a local matter and that no Provincial interest would be impacted by the change in the
West Road’s designation as proposed.

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Mr. Dorfman and Mr. Smith proffered a similar perspective. The Board accepts
their testimony that this road designation in the OP does not impact any Provincial
interest. The proposal to designate the West Road as a “County Collector” road was
well-canvassed during the Province’s review of the five year-updates and the
uncontradicted evidence is that no Provincial concerns were raised by this proposed
designation at that time by any Provincial Ministry. Even SON, at that time, proffered no
concerns about the West Road’s designation as a result of its review of these
documents which from the exhibits filed and testimony presented, appear to have been
fulsome and complete.
Counsel for the Municipality suggests that the Board must have regard for the
decision of Council in this matter and as such, should approve the amendment as
drafted, or in the alternative, accept the amended evidence of Mr. Smith found at Exhibit
59 with respect to modifications to the BCOPA 127 based in part upon the
recommendations put forward by Mr. Dorfman.
The Board finds that in considering the new directions of Section 2 of the
Planning Act, that Section 2.1 is fundamental when it states:
Decisions of councils and approval authorities
2.1 When an approval authority or the Municipal Board makes a decision under
this Act that relates to a planning matter, it shall have regard to,
(a) any decision that is made under this Act by a municipal council or by
an approval authority and relates to the same planning matter; and
(b) any supporting information and material that the municipal council or
approval authority considered in making the decision described in
clause (a). 2006, c.23, s. 4.
The Board, in having regard to the decisions of the local Council and to the
Provincial Ministries having jurisdiction over certain aspects of the appeals, has
carefully considered the varied positions put forward by these bodies and the testimony
of those who oppose the proposal. The Board, in doing so, must consider the decision
of the approving authorities but is also obligated to bring its own determination based
upon the evidence presented at this hearing. At no time did any Party request that any
material submitted at this hearing be referred back to the Municipal Council or that in
doing so the new material might have altered their decision. The Board concurs.

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The Board adopts the position put forward by Board Member Stefanko in his
decision Keswick vs. Sutherland where he states that:
This section, in my view, requires the Ontario Municipal Board to consider the
decisions of council and to weigh those decisions against the evidence heard by
the Board. To read this section as creating some type of obligation on the Board
to be bound by and to implement such decisions would be placing far too narrow
[sic] an interpretation on the section. Other provisions of the Act such as ss.17
(36), 17(50), 34(19) and 34(26) clearly allow for, and contemplate the possibility
of Parties appealing a decision of a municipal council and the Board overturning
it. Therefore, notwithstanding a level of inherent deference contained in s. 2.1,
the Board does, and should, for obvious reasons, retain its independent decisionmaking
authority. When considering the decisions made by Town Council and
Regional Council, it is incumbent upon me to scrutinize those decisions to the
extent possible.
The Board, in this case after considering all of the evidence, has brought its own
determination to the appropriateness of BCOPA 127 and how it should be changed to
reflect the concerns expressed at this hearing and to be consistent with good planning.
Counsel for RBHRG in her submissions suggested that, since the County did not
conduct an environmental assessment of the West Road prior to its OP designation and
due to what she opines were the deficiencies in the County’s revised Bruce County
Roads Designation Study Final Report dated September 2, 2004, put forward by Mr.
Slade, that this panel of the Board should defer or deny approval of BCOPA 127 until
future road works that might be proposed by the County have undergone a full
Municipal Class Environment Assessment process.
She submits, in this case, the Board should follow the maxim delegatus non
potest delegare set out by Vice Chair Campbell in James Dick Construction Ltd v.
Caledon (Town) O.M.B.R.263 where she reiterates the findings in Ron Forbes Ent. Ltd v
Bruce (County), O.M.B.D. No.1328, which states:
The Board makes a manifest error of law or fact if it approves planning
instruments but in effect put off the burdensome task of properly considering
issues of compatibility and impact to some further date.
Clearly in that case, Vice Chair Campbell was not satisfied that the proponent
had met its obligations under the planning policy regimes in place and was not prepared
to defer the consideration of issues of compatibility and the impacts of the proposed

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new use (quarry) to some further date through an ongoing private Adaptive
Management Plan (AMP) beyond the Board’s jurisdiction and control, in the first
instance. In other words, the proponent in the Board’s judgement in James Dick
Construction Ltd. v. Caledon (Town) O.M.B.R. 263 (James Dick), had not met the onus
to justify the change in land use being proposed and as such, the Board should not
defer compliance with these basic policy tests to a later date and a different jurisdiction.
In this case, there is no consideration of a specific private development (a quarry)
as there was in James Dick Construction Ltd. v. Caledon (Town) O.M.B.R. 263.
BCOPA 127 merely designates an existing public road allowance but does not
sanction any works beyond normal maintenance. Whether the West Road under the
County’s jurisdiction remains a “Local Road” or a “County Collector Road” as the
County now wishes, the simple fact is that any new works on the road are subject to the
Municipal Class Environmental Assessment Process, a separate approval process for
municipal infrastructure works. This is much different to the matters faced by Vice Chair
Campbell when asked to approve a new quarry land use in the James Dick case.
The Board, after considering all of the evidence, is satisfied that the approval of
BCOPA 127 as set out and modified by this decision is in the public interest and
represents good planning that should be approved.
The Board accepts the position put forward by the Planners for the Municipality
and the Province that BCOPA 127 can be considered a local matter beyond the fiveyear
review process, and as such, there is little Provincial interest in this approach. If
there is any lesson in the process followed by the Municipality and the Province in this
case it is that a detouring of the planning process as undertaken in this case may in fact
be the longer route to the stated planning objective and does not breed confidence in
the planning system as a whole. Speedy approval is not always a virtue in planning
matters.
The Board further concludes that the OP designation of the West Road from a
“Local Road” to a “County Collector Road” designation in and of itself does not
constitute development as defined by the 2005 PPS. Development occurs when the
County wishes to undertake new public works to this infrastructure, and such works are
covered in this case by the Municipal Class Environment Assessment process. In this

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regard, the Board prefers the opinion of Mr. Dorfman and Mr. Armstrong to that of Mr.
Slade that development as defined by the PPS does not include:
activities that create or maintain infrastructure authorized under an environmental
assessment process.
It is the Board’s determination that the Municipal Class Environmental
Assessment is the further approval process that must be followed in this case. It is not a
precondition to the Official Plan redesignation of an existing road allowance, as set out
in BCOPA 127.
The Board in considering the testimony of witness for both SON and RBHRG
accepts their evidence that the area in proximity to the West Road has a rich potential
for Natural Heritage and Cultural Features. The Board, after reviewing the County OP,
would note that at a prima facia level, the OP recognizes and designates many of these
features on it - Land use Schedules “A”. Schedule “C” to the OP identifies constraints to
development as well. The OP also establishes environmental polices as set out in
Section 4.3 to protect these features consistent with Provincial Policy.
In the case of potential works on the West Road by the County, the Board is
satisfied that a fulsome Municipal Class Environmental Assessment is the best
approach to ensure that these features and their functions are understood and that
negative impacts to these features and their functions are addressed before any road
improvement is undertaken, if at all. The commitment to do such further studies and the
recognization of SON’s rights is contained in the Warden’s letters to the SON Chiefs.
Official plans are serious public documents that guide the growth of the
municipality and are in place for the benefit of the Municipal Council, its citizens, and
those who seek development within the community. Official plans must reflect the clear
directions of Council and should not obscure Council’s intentions. The Board does not
accept, in part, the testimony of Mr. Knox that the County through its Highway
Committee can determine different road widening standards by resolution and thus not
follow its own Official Plan.
It is informative to note that Section 4.6.3.5. of the OP is a mandatory statement
when it says:

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4.6.3.5. County Roads shall have a minimum right of way width of 30 metres in a
rural area and a minimum right of way width of 20 metres in urbanized areas.
Clearly, the expectation of anyone reading the OP would be that a “County
Collector Road” would have or would ultimately be widened to 30 metres in rural areas.
However, BCOPA 127 makes no reference to, or determination of, what constitutes the
urban and rural sections of the West Road. The evidence as set out in Land Purchase
Policy for the West Road, document Exhibit 28, prepared by the County when it was
contemplating works under the Infrastructure Stimulus Funding program, clearly
expresses an intention of the County to secure an 86 ft
contravention of its own OP.
wide road allowance in
Such actions, while well intended, can not breed trust in the local planning
system and must stop. Council has an obligation to follow its OP policies or, in the
alternative, to amend them. They can not just ignore their own OP policies when it is
convenient to do so.
This ad hoc approach to the taking of road widening should not be tolerated. It is
no wonder that residents are concerned when they cannot rely on public planning
documents being followed by their own municipal officials.
It may well be, after completing a fulsome Municipal Class Environmental
Assessment, that it is determined that certain sections of West Road can be widened
without adverse impacts, while other sections due to environmental constraints should
not be widened. There neither compelling evidence before the Board at this time that
any widening of the West Road should be permitted, nor is there a clear understanding
of the County’s intentions based upon an understanding of the need or the impacts that
such widening might have on the adjacent land uses and their features and functions, or
the established rights of SON.
The Board would note that the County, in its rush to get the West Road
designated in BCOPA 127 as a Collector Road, failed to distinguish and designate
those sections of the West Road that were to be “Rural’ from those sections that were
to be “Urban”. These determinations formed part of the earlier five-year review and
amendments to the Transportation Schedule “B” as originally submitted to the Ministry
by the County and in the Board’s judgement, should have been carried forward in

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BCOPA 127 so that the public clearly knows what section of the road the County
considers “Rural” as opposed to those sections it considers “Urban”.
It is the Board’s determination that no widening of the current road allowance of
the West Road should be undertaken until the completion of a Municipal Class
Environmental Assessment for the entire West Road and further, any determinations of
road widening should flow from that review.
This should be a clear policy direction in BCOPA 127.
It is the determination of the Board that BCOPA 127 should be further amended to:
1. Include a Transportation Schedule that is similar to the Schedule that
formed part of the five-year review amendments identifying the “Rural’ and
“Urban” segment of the West Road, and further;
2. A clause be added to Section 4.6.3.5 that states “Notwithstanding any
road widening provisions in this Official Plan no road widening shall be
taken along the West Road until the completion of a Municipal Class
Environment Assessment undertaken by the County of Bruce pursuant to
Part II.1 of the Environmental Assessment Act and that any subsequent
road widening shall be in accordance with the findings of the Environment
Assessment.”
It is the determination of the Board in this case that due to the extensive history
surrounding County activities associated with the West Road, the clear and
uncontradicted evidence that significant Natural Heritage and Cultural Heritage features
are or may be located in close proximity to this right of way and the fact that no impact
studies were undertaken with respect to this road’s “County Collector Road”
designation, the OP, through this amendment, should be clear that before any works
beyond normal maintenance are to be undertaken, the County shall undertake a
comprehensive Municipal Class Environment Assessment of the entire road from
County Road 9 to County Road 13.
The Board in this regard adopts in part the evidence of Mr. Dorfman, the planner
retained by SON, and the planner for the Ministry of the Environment that BCOPA 127

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should make it clear that the County is committed to a full Municipal Class Environment
Assessment of any new proposed works along the West Road. Mr. Dorfman in his
evidence opined that such a commitment should apply to all County Road, but on
questioning from the Board he agreed that such wording could apply only to the West
Road area.
BCOPA 127 is a local amendment and does not apply County wide. The County,
as a result of the earlier decision of this panel of the Board, has just completed its fiveyear
review of its OP policies. The Board is reluctant to apply a new County wide policy
for which no notice to all County residents was given. Furthermore, the Environment
Assessment process applies in spite of any specific OP policy.
However, the Board finds in this case, due to the conflicting actions of the County
in its quest for infrastructure funding and the confusion these actions have caused, that
a clear direction in the BCOPA 127 is required committing the County to a fulsome
Municipal Class Environment Assessment of the entire West Road prior to any road
widening or major works.
This would provide a clear public policy direction of the Council’s intentions as
set out in the Warden’s letters to SON’s chiefs and would be consistent with the
evidence the Board heard from Mr. Armstrong, Mr. Dorfman and the other experts
called by SON and RBHRG that such additional environmental assessment work is
required.
Mr. Smith, in his reply testimony, agreed in part with Mr. Dorfman but suggested
that the wording with respect to the environmental assessment should only apply as a
site-specific amendment to the West Road Area. In this the Board agrees.
Accordingly, the Board will direct that BCOPA 127 be further modified by the
addition of the following:
Any proposed road improvement to the West Road as designated on Schedule
“B” Transportation, shall be subject to the requirements of the Municipal Class
Environment Assessment undertaken by the County of Bruce pursuant to Part
II.1 of the Environmental Assessment Act, including consultation with the
Saugeen Ojibway Nation (SON), and any proposed development application that
might prejudice the completion of this Municipal Class Environment Assessment
shall be considered premature by the County.

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The Board would note that the resolution of planning conflict is a fundamental
Provincial interest as set out in the Planning Act.
Subsection 2.(n) of the Planning Act further states that in considering planning
matters, regard should be had to;
2.(n) The resolution of planning conflicts involving public and private interests.
The achieving of this Provincial interest finds effect in the first instance in the
requirements for public disclosure of matters associated with a planning application.
There is no evidence that this was not done with respect to BCOPA 127.
The statutory requirement for notice in planning applications and the
constitutional duty to consult and find resolution of planning conflict is clearly in the
Provincial interest and is ongoing. This is witnessed by the settlement reached with
respect to CBOPA 116 and in the case CBOPA 127, now falls to this Board.
The balancing of public and private interests is a fundamental requirement of the
Planning Act as well. The determination of, and the balancing of, public and private
interests originally vests with, and is the obligation of, the Municipal Council and the
other approval authorities such as the Province, and upon appeal, vests with the Board.
It does not reside with private individuals or local interest groups. The determination of
the public interest with respect to planning matters is not a popularity contest, but must
instead be based upon sound planning principles and public knowledge of the planning
matters at hand.
The Board is satisfied that CBOPA 127 as modified by this decision is in the
public interest.
Duty to Consult
The Board, for the reasons set out in this decision, finds that modifying BCOPA
127 in the manner set out in this decision to be in the public interest, represents good
planning and does not diminish the ongoing duty to consult, not only with First Nations
people, but also with residents of the County who live along the West Road.
The duty to consult as it applies to BCOPA127 is twofold:

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In the first instance, the duty to consult with Aboriginal people is owned by the
Federal or Provincial Crown and is grounded in what the Courts have termed
the “honour of the Crown” (Haida Nation v. British Columbia,(Minister of
Forests), [2004] 3 S.C.R 511, 2004 SCC73). This responsibility can not be
delegated. The Crown may assign or direct operational aspects of the duty to
municipalities by statue or other means, but can not delegate its ultimate
responsibility to ensure that the duty to consult has been met.
Secondly, in the case of planning applications, the Province under the
Planning Act has established a public notice process for all Official Plan
applications, be they public or private amendments, that requires that notice
of the amendment be given as prescribed and that for Parties to gain status to
appeal they must do so prior to the Municipal Council making its decision and
to express their concern either orally or in writing. In this process, early
notification to potentially affected Parties is required, as set out in the
regulations. In this case, there is no evidence that SON was not notified of
BCOPA 127. In addition, there was no evidence tendered that the notice
given by the County with respect to BCOPA 127 was defective in any way.
The evidence is that for whatever reason, SON did not request a meeting and did
not advise the Province or the Municipal Council of any concerns with the West Road’s
designation prior to County Council making its decision with respect to BCOPA 127
If there was any defect in the duty to consult with respect to BCOPA 127 either
from the Province’s failure to Consult with SON as they had done with BCOPA 99 and
BCOPA 116 or in SON’s determination not to advise the Municipality or the Ministry of it
concerns prior to the adoption of BCOPA127, it was rectified by the Board’s decision of
June 30, 2011 to add Son as a Party to this proceeding..
The Board in its June 30, 2011, decision, determined that SON had an interest in
the matters in spite of its failure to advise the Municipal Council of its concerns prior to
County Council making a decision with respect to BCOPA 127, and granted SON Party
status for this hearing and directed that the Crown, the County, and SON undertake the
aboriginal consultation and accommodation process for the West Road, as set out in the
Amendments BCOPA 116 and BCOPA 127.

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The Board heard conflicting testimony regarding the substance of the three
meetings that occurred as a result of the Board’s order of June 30, 2011. No agreed
upon minutes of these meetings were filed with the Board, and the Board heard
conflicting testimony from those who were present for all or part of these meetings. The
best the Board can take from the evidence is that the meetings occurred, matters were
discussed, and the process of consultation and accommodation is ongoing amongst the
Parties.
The Board is unable to make any determination of the progress made, other than
to note that SON was well represented at this hearing and through its witnesses
provided compelling testimony that assisted the Board in formulating this decision.
The Board in its modification of BCOPA 127, as set out in this decision, has
made it clear that the duty to consult SON must be a part of the Municipal Class
Environment Assessment process for the West Road. This consultation, in this case, is
part of the continuum of the duty to consult with First Nations people. It is the finding of
the Board that to approve BCOPA 127 in the manner set out in this decision does not
prejudice any Party’s interests in further consultation and accommodation meetings that
might occur once the County determines what project, if any, it wishes to undertake
along the West Road.
The Official Plan Amendment, as approved by the Board, maintains the status
quo with respect to new public works until approved through a full Municipal Class
Environment Assessment Municipal Class in which SON must be consulted.
It is also clear from Mr. Dorfman’s witness statement, Exhibit 13, Tab 5, that the
Province, through its modifications to BCOPA 99 and BCOPA116, and the County,
through its OP policies as set out in Sections 4.3.9 and 6.9.1, have formally set out
acknowledgement of the County’s duty to consult with First Nations. The letters from the
County Warden of June 20, 2011, Exhibit 12, Tab 15 and October 5, 2011, Exhibit 12,
Tab 18, recognizes the duty of the County to consult with its First Nations neighbours,
specifically with respect to the West Road.
The Board also concurs with my colleague Mr. Christou when he states in his
decision of June 30 2011:

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that the Province’s continuous participation in the process is imperative, as the
Crown has the ultimate responsibility to consult and accommodate on matters
involving aboriginal interest as they may present themselves in OPA116 and
OPA127.
The duty to consult with First Nations is not a one time affair, but is a continuum
that applies to the Province beyond this decision and, either through the one window
planning process of the Ministry of Municipal Affairs or any future environmental
reviews, this duty to consult with First Nations by the Crown (Ontario) does not diminish,
and is not abridged by, other Parties who might have an interest to consult in the matter.
The Board concludes from the testimony presented at this hearing that the
Parties recognize their duty to consult, and the rights of SON and SON’s reciprocal
responsibilities within the consultation and accommodation process. The Board
concludes from the testimony and submissions made at this hearing that the Parties are
working to develop a formal consultation process within the scope of the OP policies set
out in Section 6.9.1 and the County Warden’s letter of June 20, 2011, in which he
states”
I reconfirm the commitment of the County of Bruce to develop together with the
Saugeen Ojibway Nation (SON) a process of Aboriginal consultation and
accommodation on the environmental assessment issues only for a portion of
County of Bruce Highway known as the West Road.
He further states in the same letter that:
The SON consultation and accommodation process would include provision to
address SON’s concerns regarding the impacts of any physical modifications to
the road on SON’s fishing rights, harvesting rights or on natural heritage values
or potential archaeological sites; and
SON concerns relating to crown land conveyances necessitated by any physical
modifications to the road on SON’s land claims.
The Board would note that municipalities are created by Provincial statue and
while they may be given, as in the case of the Planning Act, a statutory obligation to
give notice and consult and may do so as set out in the Wardens letter. The
responsibility to determine if the constitutional duty to consult and accommodate is
required, has been undertaken and is met resides, with the Crown (Ontario).

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SON, in its submissions, notes that for consultation to be effective it must start
early at the strategic planning level. It is clear to the Board that since the inception of the
five-year review of the OP, SON, the Province, and the County have been actively
engaged in consultation, both as required by the Planning Act and the Constitution of
Canada, to a point where SON expressed no concerns about the proposed “Collector
Road” designation when it formed part of BCOPA 99 and BCOPA 116.
As the Board indicated earlier in this decision, the duty to consult and find
accommodation with SON is the responsibility of the Crown (Ontario) and in this case, is
a continuum and does not cease based upon a single approval such as the designation
before the Board in BCOPA 127. Pre-consultation and the duty to consult will carry
forward if, and when, the County determines that it wants to undertake some works
which are subject to the Municipal Class Environmental Assessment process.
The Board, in its direction to modify BCOPA 127, has concurred with the
evidence of Mr. Dorfman, SON’s planning expert, and has included a direction to
consult with SON through the Municipal Class Environmental Assessment process as
part of the Official Plan Amendment to be approved.
Chief Kahgee testified that for consultation to be effective, capacity funding
should be made available to SON. The Board heard no evidence that any capacity
funding requests had been made by SON for the consultation directed by the Board in
its June 30, 2011, decision to the Parties, or for any future consultation that might occur
as a result of the County determining to undertake a Municipal Class Environmental
Assessment for works along the West Road.
SON’s Counsel, in his submission, suggests that the Board should conclude that
consultation with respect to BCOPA 127 was insufficient as capacity funding was not
provided to SON. The Board has reviewed the exhibits filed and considered the
representation and testimony provided during this hearing and concludes that the issues
and rights of all the Parties were well understood and the consultation with respect to
the designation of the West Road as a “County Collector” road as modified by the Board
were fulsome and complete, and that with respect to the very narrow issue of BCOPA
127, the duty to consult with First Nations has been met.

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Further, it is the conclusion of the Board that the amendment as modified by the
Board does not sanction any development or works to this infrastructure (the West
Road) beyond what is currently allowed and the amendment as modified by the Board
would not prejudice any Party’s interests or rights.
What might happen in the future with respect to the duty to consult with First
Nations (SON) is not before this Board, and is a matter best left to the Parties
associated with any future duty to consult to determine.
The Board commends the Province, the County and SON to this work.
The Board, after considering all of the evidence and submission made, is
satisfied that BCOPA 127 as modified by this decision is in the public interest,
represents good planning for this part of the County, and will not prejudice any Party or
First Nations rights if, and when, the County determines that it might wish to undertake
roadway improvements to the West Road, and does not alter in any way alter or abridge
the rights or duty to consult with First Nations on matters associated with the West Road
in the future.
The Board in conclusion and on a contingent basis orders that the appeals are allowed
in part and Official Plan Amendment No. 127 to the Official Plan for the County of Bruce
is modified as follows:
1. Include a Transportation Schedule that is similar to the Schedule that
formed part of the five-year review amendments identifying the Rural and
Urban segment of the West Road, and further;
2. A clause be added to Section 4.6.3.5 that states “Notwithstanding any
road widening provisions in this Official Plan no road widening shall be
taken along the West Road until the completion of A Municipal Class
Environment Assessment undertaken by the County of Bruce pursuant to
Part II.1 of the Environmental Assessment Act and that any subsequent
road widening shall be in accordance with the findings of this Environment
Assessment.”

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3. Any proposed road improvement to the West Road as designated on
Schedule “B” Transportation, shall be subject to the requirements of the
Municipal Class Environment Assessment undertaken by the County of
Bruce pursuant to Part II.1 of the Environmental Assessment Act,
including consultation with the Saugeen Ojibway Nation, and any
proposed development applications that might prejudice the completion of
this Municipal Class Environment Assessment shall be considered
premature by the County.
The Board will withhold its final Order pending receipt of a modified BCOPA 127,
as set out in this decision in a form satisfactory to, and certified by, the Clerk of the
Municipality.
The Board so Orders.
“J. P. Atcheson”
J. P. ATCHESON
MEMBER

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APPENDIX “A”
LIST OF WITNESSES
1. Mr. David M. Smith was qualified as a Land use Planner with expertise in the
area of municipal planning. Mr. Smith is a senior planner employed by the
County of Bruce.
2. Mr. Brian Knox P.ENG. was qualified as a Civil Engineer with expertise in the
areas of transportation engineering planning design and construction of roadway
systems.
3. Mr. Dwayne Evans was qualified as a Land use Planner with expertise in the
area of land use planning. Mr. Evans is a Planner with the Ministry of Municipal
Affairs and Housing in its London office and has been involved in the Ministry’s
five-year review of Bruce County’s Official Plan (BCOPA 99) and BCOPA 116,
as well as the local (BCOPA 127).
4. Mr. David Slade was qualified as a Land use Planner with expertise in the area of
land use planning. Mr Slade was retained in 2008 to assist the Red Bay and
Howdenvale Residents Group (RBHRG) in their appeals with respect to CBOPA
99, CBOPA 116, and CBOPA 127.
5. Mr. Douglas Thwaites P. ENG was qualified as a professional Engineer with
expertise in the areas of Transportation Engineering and Planning. Mr. Thwaites
was retained in January of 2008 to assist the Red Bay and Howdenvale
Residents Group (RBHRG) in the review of the revised Bruce County Roads
Designation Study Final Report dated September 2, 2004.
6. Mr. William Armstrong was qualified as a Land use Planner with an expertise in
Environmental Planning. Mr. Armstrong is the Regional environmental planner
employed by the Ministry of the Environment in the South-western Region. Mr.
Armstrong testified under summons.
7. Ms. R. Henrich was a lay witness speaking on behalf of the Red Bay and
Howdenvale Residents Group (RBHRG).

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8. Dr. G. Heigenhauser was a lay witness and member of the Red Bay and
Howdenvale Residents Group (RBHRG).
9. Mr. Mark L Dorfman was qualified as a Land use Planner with an expertise in
land use planning matters. Mr. Dorfman was retained by SON in October 2011 to
assist them in the matters under appeal.
10. Mr. William Fitzgerald was qualified as an Archaeologist to give expert opinion
evidence with respect to the Archaeological characteristic of the Bruce County
area. He was retained by SON in November of 2011 to comment on the
Archaeological potential along the West Road Area.
11. Ms. Linda Sober was qualified as a terrestrial Biologist and Ecologist to give
expert opinion evidence on Environmental Planning issues.
12. Dr. Stephen Crawford was qualified as a Biologist to give expert opinion
evidence in the area of fish and fish habitat. Dr. Crawford since 2005 has had an
ongoing relation with SON to assist in a wide range of matters dealing with their
fishery in the Area. In May of 20011 he was retained to assist SON in the matter
of the West Road.
13. Mr. Anthony Chegahno, a Member and Elder of the Chippewas of Nawash
Unceded First Nation (CNFN).
14. Dr. P Chow –Fraser, was qualified as an aquatic ecologist with a specialization in
coastal wetlands, eco system functions and habitat use. She conducted at the
request of the RBHRG a preliminary survey of the Red Bay and Howdenvale
area August of 2011.
15. Chief Randall Kahgee of the Chippewas of Saugeen First Nation (SFN), a lawyer
and member of the Law Society of Upper Canada testified with respect to the
Duty to Consult with First Nations and in particular with SON.
16. Mr. Jacob Linklater, the Coordinator for SON Environmental Office, and a
member of the Chippewas of Nawash Unceded First Nation CNFN.

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APPENDIX ‘B’
LIST OF EXHIBITS
1. Minutes of Settlement dated May 16 2011 between the County of Bruce and the
Ministry of Municipal Affairs and Housing.
2. County of Bruce Document Book.
3. Mr. David Smith Acknowledgment of Experts Duty Form
4. Witness Statement of Mr. David Smith.
5. Chronology of correspondence and meetings with SON regarding the West
Road.
6. Bruce County Planning and Economic Development Department Report dated
August 2009.
7. Notice of Decision and Official Plan Amendment 127.
8. Ontario Municipal Board Decision dated March 31, 2010.
9. Extract Oxford Dictionary meaning of re-route.
10. Addendum #2 Bruce County Planning and Economic Development Department
Report Dated March 19, 2009, re OPA 116.
11. Letter from Mr. David Clarke dated March 06, 2009.
12. Saugeen Ojibway Nation (SON) Document Book.
13. Witness Statements of the Saugeen Ojibway Nation (SON).
14. Addendum to the Witness Statement of Mark Dorfman for SON
15. Witness Statement of Mr. Brian Knox.
16. Mr. Brian Knox Acknowledgment of Experts Duty Form.
17. Ministry of Municipal Affairs and Housing Document Book.
18. Witness Statement of Mr. Dwayne Evans.
19. Minutes of the 1997 Agriculture, Tourism, and Planning/Land Division Committee
dated January 8, 1997, Item 6.
20. Township of Albemarle Expropriation Bylaw 979 Dated May 26, 1959, and GIS
map.

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21. County of Bruce Highway Committee report dated June 1968, Bylaw 2032 re
Expropriation Plan for lands Lot 24 Concession 24 and 25 Amabel Township as
shown reference plan and GIS Map.
22. Geometric Design Standards for Ontario Highways, Title page.
23. Extract Bruce County Map Book pages 6, 7, 8, and 9.
24. Mr. Knox Long Range Road Works Recommendation November 1 2009.
25. Mr. Knox Long Range Road Works Recommendation May 30 2011.
26. Bruce County Infrastructure Stimulus Funding Application Spring 2009.
27. Pratt and Pratt Letter dated August 11, 2009, to County re: resident's objections
to the West Road Project.
28. County of Bruce Land Purchase Agreement for Road Widening Purposes, and
the County of Bruce Land Purchase policy on the West Road December 2009.
29. Letter from Brian Knox dated January 8, 2010, including West Road Open House
Agenda and Minutes dated December 16, 2009.
30. Letter from Brian Knox dated February 12, 2010, re cancellation of West Road
Project.
31. Memo from Brian Knox dated May 5 2010 to the County Council.
32. Highway Committee Agenda of March 10, 2011. Including an Executive
Summary dated March 11, 2011, which includes a letter dated February 10,
2011, from Brian Knox to the Ministry of the Environment and a Ministry of the
Environment Letter dated February 16, 2011, re the West Road Project.
33. Two Maps of the West Road prepared by SON.
34. February 18, 2010, letter and report from AWS Consultants to Mr. Knox.
35. Extract Municipal Class Environment Assessment Manual.
36. Approval Authorities List of the Ministry of Municipal Affairs and Housing.
37. Ontario Municipal Board Decision of A. Christou dated June 30, 2011.
38. The Red Bay and Howdenvale Residents Group (RBHRG) Document Book
including a new Tab N.
39. Town of South Bruce Peninsula 2005 Roads Needs Study Map.
40. County of Bruce Official Plan Consolidation, January 2006.

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41. Witness Statement of Mr. Douglas Thwaites.
42. C.V. of Mr. William Armstrong.
43. West Road Chronology of William Armstrong involvement.
44. Letter from Mr. Knox to Ministry of the Environment dated September 15, 2009.
45. Letter from William Armstrong to Brian Knox dated October 21, 2009.
46. Letter from Mr. Knox to Ministry of the Environment dated November 12, 2009.
47. Letter from William Armstrong to Brian Knox dated February 16, 2011.
48. Letter from William Armstrong to Brian Knox dated October 14, 2011.
49. E-mail chain between William Armstrong and Brian Knox, ending December 07,
2011.
50. Letter from Mr. Knox to Ministry of the Environment dated February 2011.
51. Map of the West Road depicting Archaeological Sites within the West Road Area.
52. Dr. Chow- Fraser expert witness report Vol 1.
53. Dr. Chow- Fraser expert witness report Vol 2
54. Schedule of the Lands related to SON Treaty 72 Land Claim.
55. Letter from Chris LaForest to Chief Kahgee dated July 31, 2008, advising of the
County’s Five year Official Plan Review and seeking consultation.
56. Letter from Chris LaForest to David McLaren or Jake Linklater of the SON
Environment Office dated July 31, 2008, advising of the County’s Five year
Official Plan Review and seeking consultation.
57. Ontario Court of justice (Provincial Division) decision in her Majesty the Queen
(Ontario) vs. Howard Jones and Francis Nadjiwon.
58. Land use Schedule “A” to the Bruce County Official Plan consolidated to January
2006 (found in exhibit 40).
59. Addendum to the Witness Statement of Brian Smith.