Analysis Report whether to Designate The Baldwin East aerodrome PROJECT IN Ontario PURSUANT TO THE IMPACT ASSESSMENT ACT

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Document reference number: 2

May 2023

Contents

• Purpose
• Context of Request
• Project Context
• Project overview
• Project components and activities
• Analysis of Designation Request
• Authority to designate the Project
• Potential adverse effects within federal jurisdiction
• Potential adverse direct or incidental effects
• Public concerns
• Potential adverse impacts on the section 35 rights of Indigenous peoples
• Regional and strategic assessments
• Conclusion
• ANNEX I: Existing Legislative Mechanisms

Purpose

The Impact Assessment Agency of Canada (the Agency) prepared this report for consideration by the Minister of Environment and Climate Change (the Minister) in deciding whether to designate the Baldwin East Aerodrome Project (the physical activities referred to as the Project) pursuant to subsections 9(1) and 9(2) of the Impact Assessment Act (the IAA), which focus on the potential effects within federal jurisdiction.

Context of Request

On February 3, 2023, the Minister received a request to designate the Project from the Pefferlaw Area Ratepayers (the requester). The requester expressed concerns regarding potential effects of the Project on the environment, including effects to fish and fish habitat, migratory birds, species at risk, wetlands, and water and air quality. In addition, potential changes to the health conditions of Indigenous peoples and impacts due to a change in the environment on the cultural practices of Indigenous peoples were identified. Other matters raised included a lack of consultation by the Proponent.

The Agency sought input from Sutton Airport Development Inc. (the Proponent), federal authorities, provincial ministries, local authorities and nine potentially affected Indigenous communities: Huron-Wendat Nation, Métis Nation of Ontario (Region 7), Alderville First Nation, Beausoleil First Nation, Chippewas of Georgina Island First Nation, Chippewas of Rama First Nation, Curve Lake First Nation, Hiawatha First Nation, and Mississaugas of Scugog Island First Nation. The Agency received responses from three Indigenous communities: Huron-Wendat Nation, the Métis Nation of Ontario (Region 7), and Chippewas of Georgina Island First Nation.

The Proponent responded to the Agency on March 1, 2023 with information about the Project, a response to the requester's concerns, and the Proponent's view that the Project should not be designated.

Advice on potential adverse effects of the Project and applicable legislative mechanisms was received from Environment and Climate Change Canada (ECCC), Fisheries and Oceans Canada (DFO), Health Canada (HC), Transport Canada (TC), the Ontario Ministry of the Environment, Conservation and Parks (MECP), the Ontario Ministry of Citizenship and Multiculturalism (MCM), the Lake Simcoe Region Conservation Authority (LSRCA), York Region, and the Town of Georgina.

Project Context

Project overview

The Proponent is proposing to construct and operate a new aerodrome in the Town of Georgina, Ontario (Figure 1). As proposed, the Project would include two paved, all-weather, marked and lighted runways which would have a maximum length of 893 metres and 991 metres, respectively, and would be capable of serving a maximum of Aircraft Group Number II. The Project would also include a clubhouse building, an aircraft hangar and supporting use development lots, aerodrome access roads, and stormwater and sewage management systems.

The project site is located on 137.6 hectares of private land. The project site consists of agricultural fields, woodlands and wetlands. It is located within the Natural Heritage System of the Protected Countryside designation in Ontario's Greenbelt Plan, which includes key hydrologic features such as significant groundwater recharge areas, and key natural heritage features such as wetlands and significant woodlands, as defined in the Greenbelt Plan. This area of the Greenbelt Plan is not subject to the 2022 Greenbelt Amendments. Any development in areas identified in the Greenbelt Plan are subject to the requirements of the Greenbelt Act, 2005.

Figure 1: Project Overview and Location

Source: Sutton Airport Development Inc., May 2022

Project components and activities

The project components include:

• two paved, all weather marked and lighted runways for aircrafts of Aircraft Group Number II:
  • Runway 04/22: 991 metres in length and 30 metres in width;
  • Runway 08/26: 893 metres in length and 30 metres in width;
• taxiways and aircraft parking apron;
• flying clubhouse building (400-500 square metres);
• aircraft hangar and supporting use development lots;
• access roads and utilities;
• holding tanks to collect de-icing fluids for off-site disposal;
• storm water management system comprising of vegetated filter strips, enhanced grass swales, storm sewer with deep sumps, oil/grit separator, and a dry pond;
• above-ground fuel systems installed in a containment system; and
• sewage system capable of serving the clubhouse building, and hangars.

Main construction activities associated with the Project include:

• site preparation, including vegetation clearing;
• soil filling for building and pavement construction;
• paving for all season operations;
• construction of the clubhouse building, and hangars; and
• installation of holding tanks, storm water management system, above-ground fuel systems, and sewage system.

The main activities during the operation phase would be the operation of the aerodrome and its supporting components, including year-round service of aircrafts of Aircraft Group Number II. There is also potential for other activities, such as flight training, aircraft maintenance, aircraft hangarage, and other ancillary aviation services. Additional maintenance activities during the operation phase include vegetation clearing, pavement repairs (e.g., crack sealing and pavement marker repainting), maintenance of visual aids, and wildlife inspections.

Project operations are anticipated in perpetuity; decommissioning and abandonment are not anticipated.

Analysis of Designation Request

Authority to designate the Project

The Physical Activities Regulations (the Regulations) of the IAA identify the physical activities that constitute designated projects.

The Regulations designate the construction and operation of new aerodromes that would meet specified thresholds or criteria. Specifically, Item 46 provides:

1. The construction, operation, decommissioning and abandonment of a new aerodrome with a runway length of 1,000 m or more.
2. The construction, operation, decommissioning and abandonment of a new aerodrome that is capable of serving aircraft of Aircraft Group Number IIIA or higher.

According to the Proponent's information, the Project does not meet the thresholds or criteria of the Regulations, as the Project would be a new aerodrome with a maximum runway length of 991 metres and the Project would be capable of serving aircrafts of Aircraft Group Number no higher than II.

Under subsection 9(1) of the IAA the Minister may, by order, designate a physical activity that is not prescribed in the Regulations. The Minister may do this, if, in the Minister's opinion, the physical activity may cause adverse effects within federal jurisdiction or adverse direct or incidental effects, or if public concerns related to those effects warrant the designation.

The Minister cannot designate a physical activity if the carrying out of the physical activity has substantially begun, or if a federal authority has exercised a power or performed a duty or function in relation to the Project (subsection 9(7) of the IAA). There is no evidence that the carrying out of the Project has substantially begun and the Agency understands that no federal authority has exercised a power or performed a duty or function that would permit the Project to be carried out, in whole or in part. In May 2022, Transport Canada received the final version of the Proponent's Summary Report, pursuant to the requirements of the Canadian Aviation Regulations (Part III, Subpart VII (307)) (CARs 307), which includes detail about the outcomes from required consultations.^Footnote 1 Transport Canada reviewed the Proponent's Summary Report and found that it complied with the requirements of the CARs 307. As such, since Transport Canada does not grant approvals with respect to the building of aerodromes, as no permission from the department is required under the current regulatory regime, and Transport Canada did not exercise a power, a duty or perform a function respecting the aerodrome project at issue.

Therefore, the Agency is of the view that the Minister is not prevented from designating the Project pursuant to subsection 9(7) of the IAA.

Potential adverse effects within federal jurisdiction

The Agency considered in its analysis the concerns expressed and the information provided by the requester, Indigenous communities, the public, federal authorities, provincial ministries, local authorities, and the Proponent. The Agency concluded that there is a potential for adverse effects within federal jurisdiction that may result from carrying out the Project; however, the Agency is of the view that existing legislative mechanisms (Annex 1) provide a framework to address the potential adverse effects within federal jurisdiction.

Fish and fish habitat

The Agency is of the view that the Project may cause potential changes to fish and fish habitat, as defined in subsection 2(1) of the Fisheries Act. However, adverse effects to fish and fish habitat would be limited through the application of standard mitigation measures and existing legislative mechanisms.

Potential Adverse Effects to Fish

The requester and the public expressed concerns with potential adverse effects to fish from the use of fill that may contaminate a watercourse (Burnie Creek) that flows directly into Lake Simcoe, and through the removal of wetlands.

DFO indicated that the Proponent should submit a Request for Review to DFO outlining the effects of the Project on fish and fish habitat for review under the Fisheries Act.^Footnote 2 If DFO determines that project activities could cause the death of fish, an authorization pursuant to the Fisheries Act paragraph 34.4(2)(b) would be required for the Project. This authorization would require Indigenous consultation.

Potential Adverse Effects to Fish Habitat

The requester and the public expressed concerns with potential adverse effects to fish habitat from use of fill that may contaminate a watercourse (Burnie Creek) that flows directly into Lake Simcoe, the removal of wetlands, and through the disruption of key hydrologic functions and groundwater recharge areas.

DFO indicated that if they determine that project activities may result in harmful alteration, disruption or destruction to fish habitat, an authorization pursuant to the Fisheries Act paragraph 35(2)(b) would be required for the Project. This would include mitigation and offsetting measures to address potential effects to fish and fish habitat. This authorization would require Indigenous consultation.

ECCC advised that it is responsible for the administration (including enforcement) of the pollution prevention provisions of the Fisheries Act, including subsection 36(3), which prohibits the deposit of deleterious substances into waters frequented by fish, or to any place, under any conditions, where they may enter waters frequented by fish.

MECP indicated that the Proponent would be required to apply for an Environmental Compliance Approval (ECA) pursuant to the Ontario Water Resources Act for stormwater management and for management of sanitary sewage if it does not fall under the jurisdiction of the Ontario Building Code. This ECA includes conditions to protect water quality from storm water and sewage discharge. MECP has a Stormwater Management Planning and Design Manual that provides technical and procedural guidance for planning, design, and review of stormwater management practices, including guidance for stormwater management sewage works approvals. This approval process requires Indigenous and public consultation.

MECP indicated that the Proponent is required to adhere to the Rules for Soil Management and Excess Soil Standards under the Ontario Regulation 406/19: On-site and Excess Soil Management, under Ontario's Environmental Protection Act, for the protection of human health and the environment. MECP advised that this regulation defers to requirements of municipal permits related to soil quality and quantity (see By-Law No 2022-0038 (REG-1) below).

MECP also indicated that a Permit To Take Water or Environmental Activity and Sector Registry (EASR) pursuant to the Ontario Water Resources Act would be required for water taking for construction dewatering activities where groundwater takings exceed 50,000 L/day. In addition, a Permit To Take Water for on-going supply for the Project would be required for water takings that exceed 50,000 L/day, unless supplied by a source already permitted (i.e., a municipal supply). The Permit To Take Water process requires Indigenous and public consultation.

The Town of Georgina indicated that a Site Alteration and Entrance Permit, pursuant to By-Law No. 2022-0038 (REG-1) would be required for the Project. This permit is required for any alteration to the grade of land, including filling, dumping, extracting or moving soil, to protect groundwater and the environment from contamination. Under this permit, the Proponent would be required to ensure that all fill used meet the standards outlined in Ontario Regulation 406/19: On-site and Excess Soil Management.

The LSRCA indicated that the Proponent may be required to apply for a permit, issued by the LSRCA, under the Ontario Regulation 179/06: Lake Simcoe Region Conservation Authority: Regulation of development, interference with wetlands and alterations to shorelines and watercourses, pursuant to the Conservation Authorities Act.^Footnote 3 Prior to issuing the permit, the LSRCA would require the Proponent to submit a full Environmental Impact Study for review to assess whether the Project would comply with relevant regulatory mechanisms, including meeting the requirements of the Clean Water Act, 2006 and the associated South Georgian Bay Lake Simcoe Source Protection Plan, the Greenbelt Act, 2005, and the Lake Simcoe Protection Act, 2008 and the associated Lake Simcoe Protection Plan, which include provisions for the protection of surface water, ground water, and wetlands.

The Proponent indicated that it would incorporate the following features in the project design and operation:

• stormwater management ponds to buffer and treat runoff before it enters the natural drainage course;
  • vegetated filter strips, inline shallow grass swales, infiltration basins, dry ponds, storm sewers complete with deep sumps, and oil/grit separators to provide water balance and phosphorus reduction benefits; and
• operational procedures to limit the volume of de-icing fluids utilized and to have de-icing done in a designated location where pavements would be sloped to drain and collect de-icing fluids into a holding tank for off-site disposal.

The Proponent indicated that it would implement mitigation measures, including:

• avoid in-water works or activities;
• implement an Erosion and Sedimentation Management Plan to follow best practice and guidance from the LSRCA and the Town of Georgina;
• implement a Storm Water Management Plan in accordance with the LSRCA's and MECP's criteria for best practices; and
• compliance with soil testing requirements outlined in Ontario Regulation 406/19: On-site and Excess Soil Management, under the Environmental Protection Act, and in the quality of fill requirements of the Town of Georgina's By-law No. 2022-0038 (REG-1).

Potential effects of the Project to fish and fish habitat, water quality and quantity would be limited by project design and operation, and would be regulated through Ontario's Environmental Protection Act; the Ontario Water Resources Act; the Conservation Authorities Act; the Clean Water Act, 2006; the Greenbelt Act, 2005; the Lake Simcoe Protection Act, 2008; and the Town of Georgina's By-Law No. 2022-0038 (REG-1); and could be assessed through the Fisheries Act, if required. Some of these legislative mechanisms include Indigenous and/or public consultation.

Aquatic species

DFO indicated that the Project is unlikely to require a permit under the Species at Risk Act (SARA) for effects to listed fish species at risk, any part of their critical habitat or the residences of their individuals in a manner, which is prohibited under sections 32, 33, and subsection 58(1) of SARA. There are currently no aquatic species at risk mapped for the project site. Aquatic species at risk are mapped in Lake Simcoe approximately five kilometres downstream of the project site and are unlikely to be affected.

Migratory birds

The Agency is of the view that the Project may cause potential effects to migratory birds, as defined in subsection 2(1) of the Migratory Birds Convention Act 1994. However, adverse effects to migratory birds would be limited through the application of standard mitigation measures and existing legislative mechanisms.

The requester and the public expressed concerns with potential adverse effects to migratory birds from the use of fill that may contaminate a watercourse (Burnie Creek) that flows directly into Lake Simcoe, and through aircraft activity overlapping with migration routes.

ECCC indicated that potential adverse effects to migratory birds, the nest of migratory birds, and their eggs may arise from activities linked to the construction and operation of the Project. These effects may include changes from the Project to surface water quality, sensory disturbance (e.g. light, noise, and vibration), and mortality due to collisions with vehicles, aircrafts and infrastructure related to the construction and operation of the Project.

ECCC identified 19 migratory birds, ten (10) of which are federally listed species at risk. These 19 migratory bird species have the potential to be present, or are confirmed, at the project site. ECCC administers and enforces the Migratory Birds Convention Act, 1994, including relevant regulations and guidelines, which prohibit the harming of migratory birds, the nests of migratory birds and/or their eggs, and with which the Proponent is required to comply.^Footnote 4

In addition to the mitigation measures noted in the Fish Habitat subsection of this report to protect water quality, the Proponent indicated it would implement the following commitments and mitigation measures:

• restrict certain construction activities to avoid nesting birds; and
• prepare a Wildlife Management Plan for the operation of the aerodrome, including advisories to pilots related to bird activity in the vicinity of the aerodrome in accordance with the TC recommended Wildlife Control Procedures Manual (TP 11500).^Footnote 5

ECCC noted that the Project is not located on federal lands and there are no SARA orders in placed at the project site. There is no overlap of critical habitat for federally listed migratory birds species at risk located at or near the project site.^Footnote 6 Only SARA prohibitions pertaining to migratory birds would apply and these would not apply to critical habitat unless an order is deemed necessary and put in place. Given the potential for Red-headed Woodpecker and Chimney Swift to be present on the project site, a SARA permit may be required if residences may be destroyed during site clearing.

In addition to migratory birds, ECCC advised that the majority of terrestrial SARA-listed species that have potential or confirmed presence at the project site are also listed under Ontario's Endangered Species Act, 2007 and are subject to protection provisions under that Act, with the exception of the western chorus frog. The Agency understands that a permit or authorization under Ontario's Endangered Species Act, 2007 may be issued by MECP to address adverse effects to provincially listed species at risk located on non-federal lands. If required, the permit or authorization would include requirements to protect endangered or threatened species at risk or their habitats during project activities. ECCC noted there is no critical habitat and no SARA orders in place for the western chorus frog identified at the project site. However, SARA is a legislative mechanism that would protect SARA-listed species if an emergency order were to be deemed necessary and put into place.

Taking into account the framework from Ontario's Endangered Species Act, 2007 and the absence of critical habitat for the western chorus frog at the project site, the Agency is of the view that potential adverse effects to terrestrial species at risk, including the western chorus frog, would be limited.

The Agency is of the view that the Migratory Birds Convention Act, 1994 and its supporting guidelines provide a framework to limit potential effects of the Project to migratory birds, as reflected by the Proponent's commitments noted in its Summary Report.

Indigenous Peoples

The Agency is of the view that existing legislation would provide a framework to address potential impacts to Indigenous peoples, including potential impacts resulting from any change to the environment on physical and cultural heritage, the current use of lands and resources for traditional purposes, or on any structure, site, or thing that is of historical, archaeological, paleontological or architectural significance to the Indigenous peoples.

The requester, Chippewas of Georgina Island First Nation, and the Huron-Wendat Nation, expressed concerns as it relates to Indigenous peoples. Concerns included potential changes in the health conditions of Indigenous peoples due to surface water or groundwater contamination, potential impacts to physical and cultural heritage due to impacts on wildlife and their habitat, potential impacts on the current use of lands and resources for traditional purposes, such as hunting and trapping, and potential impacts to any structure, site or thing of archaeological significance. Lack of consultation by the Proponent was also raised.

As per CARs 307, the Proponent is required to consult with interested parties within a radius of 4,000 metres from the location of the Project, and to prepare a Summary Report that identifies concerns raised by interested parties, mitigation measures for those concerns, and a record of commitments for those mitigation measures. TC indicated that the Proponent's final Summary Report, dated May 2022, was compliant with the applicable requirements of CARs 307.

During the development of the Summary Report for CARs 307, the Proponent engaged with eight Indigenous communities, including:

• Alderville First Nation;
• Beausoleil First Nation;
• Chippewas of Georgina Island First Nation;
• Chippewas of Rama First Nation;
• Curve Lake First Nation;
• Hiawatha First Nation;
• Huron-Wendat Nation; and
• Mississaugas of Scugog Island First Nation.

Health Conditions of Indigenous People

HC recommended that the Proponent consult HC's Guidelines for Canadian Drinking and Recreational Water Quality^Footnote 7 to support addressing issues related to surface water and/or groundwater quality, and HC's guidance on Human Health Risk Assessment^Footnote 8 to address issues related to the use of contaminated soil fill. HC also has Guidance on Noise^Footnote 9 and Guidance on Air Quality^Footnote 10 to support addressing health conditions from decreased air quality and increased noise levels.

ECCC recommended that the Proponent consult Cheminfo Services Inc.'s "Best Practices for the Reduction of Air Emissions from Construction and Demolition Activities" (2005) to support addressing issues regarding health conditions from air quality issues.^Footnote 11

The Town of Georgina indicated that a permit under its Noise By-Law No. 2003-0075 (PWE-1) would be required for the Project. This permit is required to regulate noise likely to disturb the inhabitants of the Town of Georgina.

Taking into account the Town of Georgina's Noise By-Law, the Agency is of the view that the impacts to health conditions from increased noise levels is limited. The Proponent commits to continue to engage with Chippewas of Georgina Island First Nation and other Indigenous communities, as described in its Summary Report which was completed by the Proponent as a requirement under the CARs 307's regulatory process under the Aeronautics Act.^Footnote 12

LSRCA noted that conformity with policy 6.40-DP of the Lake Simcoe Protection Plan may be required through the Municipal Planning process. Policy 6.40-DP applies to major developments within a significant groundwater recharge area in order to maintain groundwater quality and quantity, including requiring an environmental impact study. The Agency understands that the Project falls within the definition of a major development under the Lake Simcoe Protection Plan as the clubhouse building and aircraft hangar have a ground floor area greater than 500 square metres. The Agency is of the view that the legislative mechanism described could provide a framework that would address the potential for contaminated drinking water and subsequent impacts on health conditions.

Physical and Cultural Heritage

The Agency is of the view that the legislative mechanisms described above provide a framework that would address effects on wildlife, their habitats and ecologically sensitive areas near Lake Simcoe, thus limiting the potential impacts to physical and cultural heritage of Indigenous peoples.

Current Use of Lands and Resources for Traditional Purposes

In the Proponent's Summary Report, Chippewas of Georgina Island First Nation expressed concern with potential impacts to current use of lands and resources for traditional purposes, including trapping and hunting. The Proponent commits to continue to engage with Chippewas of Georgina Island First Nation and other Indigenous communities, as described in its Summary Report which was completed by the Proponent as a requirement under the CARs 307's regulatory process under the Aeronautics Act.^Footnote 13

The Agency is of the view that the legislative mechanisms described previously in the Fish Habitat and the Migratory Birds subsections of this report, as well as the continued opportunity to raise specific concerns with the Proponent highlighted in this section of this report, provide a framework that would address effects on lands and resources. This would limit the potential impacts to current use of lands and resources for traditional purposes, including trapping and hunting.

Structure, Site or Thing of Historical, Archaeological, Paleontological or Architectural Significance

The Agency understands that the Project is located within an area of archaeological interest to the Huron-Wendat Nation. The Huron-Wendat Nation expressed interest in archaeological resources on or near the project site and in participating in any future archaeological assessments or archaeological studies for the project site.

MCM advised that the Project is subject to the Ontario Heritage Act, which requires the Proponent to conduct archaeological assessments in accordance with the MCM's Standards and Guidelines for Consultant Archaeologists (2011). The Proponent would be required to follow protocols to protect any discovered archaeological resource and adhere to the requirement for consultation with Indigenous communities during these assessments. A Stage 2 Archaeological Assessment would be conducted, as areas of the project site were determined to have archaeological potential. The Stage 2 assessment involves surveying the land to identify any archaeological resources on the project site. The Proponent noted that a Stage 3 Archaeological Assessment (site-specific assessment) would also be conducted, if required, and that Indigenous communities would continue to be engaged in both Stage 2 and 3 Archaeological Assessments, as described in its Summary Report which was completed by the Proponent as a requirement under the CARs 307's regulatory process under the Aeronautics Act.^Footnote 14

Federal lands

The Project is not located on federal lands. Chippewas of Georgina Island First Nation reserve lands are located approximately 3.5 and 6.5 kilometres downstream of the Project. The Agency is of the view that any change to the environment occurring on federal lands would be unlikely. Existing legislative mechanisms, such as the Fisheries Act, Clean Water Act, 2006; the Conservation Authorities Act; the Environmental Protection Act; the Greenbelt Act, 2005; the Lake Simcoe Protection Act, 2008; the Ontario Water Resources Act; and Town of Georgina's site alteration By-Law No. 2022-0038 (REG-1) provide a framework to consider downstream effects to water quality.

Transboundary effects

The Agency is of the view that existing legislative mechanisms will provide a framework to address the potential for the Project to cause a change to the environment that would occur in a province other than the one in which the Project is being carried out, or outside Canada.

Concerns expressed by the requester included the conservation of wetlands representing essential ecosystem services, including carbon storage, and resilience to climate change, as well as aircraft emissions causing numerous negative effects on air quality, climate, and the ozone layer.

ECCC advised that the construction and operation of the Project may result in greenhouse gas (GHG) emissions or impact carbon sinks and may hinder the Government of Canada's ability to meet its commitments in respect of climate change.

The Project is not located near any provincial or international borders, and is not expected to impact air or water quality outside of Ontario or Canada. The Proponent committed to prepare an air quality and emissions study to demonstrate that the impacts on local air quality would not contravene air quality and emission standards.

In addition, if the Project emits ten kilotonnes or more of GHGs in carbon dioxide equivalent units per year, the Project would be subject to federal GHG emissions reporting requirements under the Canadian Environmental Protection Act, 1999, enforced by ECCC.

Potential adverse direct or incidental effects

Direct or incidental effects refer to effects that are directly linked or necessarily incidental to a federal authority's exercise of a power or performance of a duty or function that would permit the carrying out, in whole or in part, of a project, or to a federal authority's provision of financial assistance to a person for the purpose of enabling that project to be carried out, in whole or in part. The Agency is not aware of any federal funding that may provide for the Project and the Project is not located on federal lands.

The Project may require a Fisheries Act authorization from DFO if the Project could cause harmful alteration, disruption, or destruction of fish habitat or death of fish. If a federal authorization is issued, the carrying out of the Project has the potential to cause adverse direct or incidental effects. However, the Agency is of the view that existing legislative mechanisms, as noted above, may provide a framework to address them.

Public concerns

The Agency is of the view that existing legislative mechanisms provide a framework to address the public concerns related to adverse effects within federal jurisdiction and, if applicable, any adverse direct or incidental effects. The Ontario Water Resources Act would include public consultation.

The public expressed concerns with potential adverse effects within federal jurisdiction, such as:

• potential adverse effects to fish and fish habitat from the disruption or removal of wetlands on the project site and potentially contaminated surface water; and
• potential adverse effects to migratory birds from the removal of wetlands and low-flying aircraft.

The Proponent committed to consider the implementation of a community liaison committee to consider public input into the operation of the aerodrome, as described in its Summary Report which was completed by the Proponent as a requirement under the CARs 307's regulatory process under the Aeronautics Act.^Footnote 15

Potential adverse impacts on the section 35 rights of Indigenous peoples

The Project is located within the Williams Treaty territory, within the Métis Nation of Ontario Region 7, and within an area of archaeological interest to the Huron-Wendat Nation.

The Agency considered views from the three Indigenous communities who provided comments, Huron-Wendat Nation, Métis Nation of Ontario (Region 7), and Chippewas of Georgina Island First Nation; the Proponent's Summary Report; the requester; and relevant advice from federal authorities, provincial ministries, and local authorities.

In relation to subsection 9(2) of the IAA, the Agency is of the view that, while the Project may cause adverse impacts on rights that are recognized and affirmed by section 35 of the Constitution Act, 1982, existing legislative mechanisms applicable to the Project (Aeronautics Act, Fisheries Act, Clean Water Act, 2006; the Conservation Authorities Act; the Environmental Protection Act; the Greenbelt Act, 2005; the Lake Simcoe Protection Act, 2008; the Ontario Heritage Act; and the Ontario Water Resources Act, Town of Georgina's site alteration By-Law No. 2022-0038 (REG-1) and noise By-Law No. 2003-0075 (PWE-1)) provide a framework to address potential impacts to Indigenous peoples. The Fisheries Act and several of these provincial mechanisms would include Indigenous consultation. In addition, the Proponent committed to continue to engage with Chippewas of Georgina Island First Nation and other Indigenous communities, as noted in its Summary Report.^Footnote 16

Regional and strategic assessments

There are no regional or strategic assessments pursuant to sections 92, 93 or 95 of the IAA that are relevant to the Project.

Conclusion

The Agency considered the information received as part of the designation request process for the Project to inform its analysis. The Agency is of the view that the potential for adverse effects and public concerns related to those effects, as described in subsection 9(1) of the IAA, would be limited through project design, the application of standard mitigation measures and through existing legislative mechanisms.

The Agency also considered whether the Project may cause adverse impacts on the rights of Indigenous peoples that are recognized and affirmed by section 35 of the Constitution Act, 1982. The Agency is of the view that existing legislative mechanisms, which include consultation with Indigenous communities, provide a framework to address any potential impacts.

Existing legislative mechanisms include the federal Fisheries Act, Aeronautics Act, Canadian Environmental Protection Act, 1999, the Migratory Birds Convention Act, 1994, Species at Risk Act. The Fisheries Act authorization, if required, would include Indigenous consultation. Existing provincial legislative mechanisms include the Clean Water Act, 2006; the Conservation Authorities Act; the Endangered Species Act, 2007; the Environmental Protection Act; the Greenbelt Act, 2005; the Lake Simcoe Protection Act, 2008; the Ontario Heritage Act; and the Ontario Water Resources Act. Several of these provincial mechanisms would include Indigenous consultation. Additionally, there are municipal by-laws, such as the Town of Georgina's By-Law No. 2022-0038 (REG-1) for site alteration and By-Law No. 2003-0075 (PWE-1) for noise.

ANNEX I: Existing Legislative Mechanisms

Federal Legislative Mechanisms

Aeronautics Act

The Aeronautics Act is the main piece of legislation that governs and oversees civil aviation in Canada. The Federal Parliament has exclusive jurisdiction over aeronautics and established a legal framework through the Aeronautics Act and Canadian Aviation Regulations (CARs), which primarily sets safety and security requirements for the civil aviation industry, among other things. Under this legislation, the Minister of Transport is responsible for the promotion of aeronautics, and the Aeronautics Act provides authority to make regulations respecting activities at aerodromes, including the location, inspection, certification, registration, licensing and operations. It should be noted that the federal aeronautics regime does not absolve an aerodrome proponent from complying with valid provincial or municipal laws of general application. In practical terms, this means a municipality or province can apply its laws with respect to the use of fill to an aerodrome project, so long as doing so does not impair the core federal power over aeronautics.^Footnote 17

More specifically for aerodromes, such as the proposed Project, Transport Canada does not grant approvals with respect to the building of aerodromes, as no permission from the department is required under the current regulatory regime. Rather, Transport Canada ensures that specific regulatory requirements, including those related to the consultation requirements set out in CARs 307, have been met. CARs 307 under the Aeronautics Act, applies to existing and proposed aerodromes and includes requirements for consultation. Of note, section 307.03, requires proponents to consult with the interested parties. Paragraph 307.04(1)(a), indicates that interested parties include the following: (i) the Minister of Transport; (ii) the providers of air navigation services; (iii) the operator of a certified or registered aerodrome within a radius of 30 nautical miles from the location of the proposed aerodrome work; (iv) the authority responsible for a protected area located within the radius of 4,000 metres from the location of the proposed aerodrome work; (v) any local land use authority where the proposed aerodrome work is to be carried out; and (vi) members of the public within the radius of 4,000 metres from the location of the proposed aerodrome work.

Section 307.07 requires a proponent to prepare a summary report that includes the following: (a) a description of the proposed aerodrome work; (b) a description of the measures taken by the proponent to comply with the requirements of Part III, Subpart VII (307); (c) the interested parties who were notified of the proposed aerodrome work; and (d) a summary of the comments and objections received, the actions that the proponent proposes to take to address those comments and objections, and any objections that were not addressed, if applicable.

Canadian Environmental Protection Act, 1999

A project may be required to provide GHG emissions reporting as required by the Greenhouse Gas Reporting Program under the Canadian Environmental Protection Act, 1999 if ten kilotonnes or more of GHGs are emitted in carbon dioxide equivalent units per year.

Fisheries Act

The Fish and Fish Habitat Protection Program of DFO reviews projects for their impacts to fish and fish habitat by ensuring compliance with the Fisheries Act and SARA. Through this program, DFO may provide information to a proponent in order to avoid and mitigate the negative impacts of a project.

A Fisheries Act Authorization may be required if a project is likely to cause harmful alteration, disruption, or destruction to fish habitat and/or is likely to result in the death of fish.

Consideration of the issuance of a Fisheries Act Authorization includes consultation with Indigenous communities. The Fisheries Act gives explicit consideration under section 2.4, where the Minister of Fisheries, Oceans and the Canadian Coast Guard must consider any adverse effects that the decision (under paragraphs 34.4(2)(b) and 35(2)(b)) may have on the rights of Indigenous peoples recognized and affirmed by section 35 of the Constitution Act, 1982. The precise nature of DFO's consultation activities is dictated by developing a shared understanding with each respective community, and determining a mutual path forward. Feedback from Indigenous groups would be incorporated into DFO's assessment of impacts, and contribute to methods used to mitigate, offset, and monitor impacts within the bounds of DFO's mandate.

If granted, a Fisheries Act Authorization would include legally-binding conditions for avoidance, mitigation, and offsetting requirements commensurate with project impacts. Monitoring to validate impacts and verify efficacy of mitigation measures and offsetting are also part of Authorization conditions.

ECCC administers and enforces subsection 36(3) of the Fisheries Act, which prohibits the deposit of deleterious substances into waters frequented by fish or to any place, under any conditions, where they may enter waters frequented by fish.

Migratory Birds Convention Act, 1994

The Migratory Birds Convention Act, 1994 protects migratory birds and their eggs and nests wherever they occur, regardless of land tenure. The Migratory Birds Convention Act, 1994, prohibits the disturbance or destruction of migratory bird nests and eggs. It also prohibits the deposit of harmful substances into waters or areas frequented by migratory birds or into a place from which the substance may enter such waters or such an area.

Species at Risk Act

The purposes of the Species at Risk Act (SARA) are to prevent wildlife species in Canada from disappearing, to provide for the recovery of wildlife species that are extirpated (no longer exist in the wild in Canada), endangered, or threatened as a result of human activity, and to manage species of special concern to prevent them from becoming endangered or threatened.

SARA recognizes that biodiversity and species at risk management in Canada is a shared responsibility among the levels of government. SARA applies throughout Canada on federal and provincial public lands, and private lands. However, the authorities and obligations under SARA vary depending on land tenure. On non-federal lands, SARA is a backstop where provincial legislation or provincial protections are inadequate to protect listed species at risk. SARA provides a framework for federal action and sets out authorities and tools to be exercised by the Minister of Environment and Climate Change, the Minister of Fisheries and Oceans or the Governor in Council to support the protection and recovery of species at risk across Canada. These tools include emergency orders where necessary to protect a listed species.

Provincial Legislative Mechanisms

Building Code Act, 1992

Under the Ontario Building Code Act, 1992 (the Ontario Building Code), as administered by the Ministry of Municipal Affairs and Housing, the Ontario Regulation 332/12: Building Code regulates the proposed development of septic tanks, holding tanks, and tile files in relation to sanitary sewage. If discharge of treated effluent is through subsurface disposal, Building Code Act, 1992 may cover systems designed with capacity of 10,000 L/day and less. Larger systems would require ECA for sewage works from MECP. If discharge is not via subsurface disposal and may be to waters of Ontario, an ECA is required.

Clean Water Act, 2006

The?Clean Water Act, 2006?protects drinking water at the source, as part of an overall commitment to safeguard human health and the environment through a multi-barrier approach. Under the Clean Water Act, the LSRCA developed the South Georgian Bay Lake Simcoe Source Protection Plan. This Plan includes policies to protect local sources of drinking water from threats to both water quantity and water quality. Failure to comply with the Clean Water Act, 2006 may result in fines and additional court orders.

Conservation Authorities Act

Pursuant to section 28 of the Conservation Authorities Act, the LSRCA implements Ontario Regulation 179/06: Lake Simcoe Region Conservation Authority: Regulation of development, interference with wetlands and alterations to shorelines and watercourses. The LSRCA is delegated provincial interest in plan review for Natural Hazards from the Province and may?issue a permit to undertake a development activity and/or interfere with a watercourse or wetland. The permitting process assesses for the control of natural hazards, such as flooding, erosion, dynamic breaches, pollution or the conservation of land that may be affected by a development activity. The approval process includes conditions to ensure that appropriate mitigation measures are in place prior to construction. LSRCA may appoint officers to enforce compliance with the Conservation Authorities Act through stop orders and penalties, including fines and imprisonment.

Endangered Species Act, 2007

The Endangered Species Act, 2007 provides for authorizations and conditional exemptions for activities that could adversely impact an endangered or threatened species at risk or its habitat. Authorization may be required for activities that could adversely impact terrestrial species at risk listed under the Endangered Species Act, 2007. MECP is responsible for administering the Endangered Species Act, 2007. Ontario Minister of Environment, Conservation and Parks may appoint enforcement officers to ensure compliance with the Endangered Species Act, 2007 through inspections and stop orders, including a Species Protection Order or a Habitat Protection Order. Failure to comply may result in fines and imprisonment.

Environmental Protection Act

Ontario Regulation 406/19: On-site and Excess Soil Management

The Ontario Regulation 406/19: On-site and Excess Soil Management, pursuant to the Environmental Protection Act, outlines requirements for projects related to soil quality, on-site processing of excavated soil or crushed rock, and the reuse and disposal of excess soil from project areas. MECP enforces and regulates compliance related to the Ontario Regulation 406/19: On-site and Excess Soil Management. Additionally, the Rule for Soil Management and Excess Soil Quality Standards provides a rules-based framework in conjunction with the requirements of the Ontario Regulation 406/19: On-site and Excess Soil Management.^Footnote 18

If excess soil is not being beneficially reused, then it is considered a waste, the site is considered a waste disposal site, and waste soil cannot be deposited at a site without obtaining applicable waste-related approvals prior to the receipt of excess soil at the site.

Reuse sites accepting greater than 10,000 cubic metres of excess soil for an undertaking are required to file a notice in the online public Excess Soil Registry (Registry). This Registry provides public and ministry awareness of an undertaking to assist with compliance. These sites are also required to develop and apply procedures to account for every load of excess soil to be deposited at the reuse site for an undertaking, and to ensure that the storage of excess soil for final placement in respect of an undertaking does not cause an adverse effect.

If excess soil is not managed according to the appropriate rules or is illegally dumped at a site, MECP would take compliance actions under the authority of Ontario's Environmental Protection Act, including ordering removal of soil from a site.

Ontario Minister of Environment, Conservation and Parks may appoint enforcement officers to ensure compliance with the Environmental Protection Act through inspections, stop orders and control orders. Failure to comply may result in fines and imprisonment.

Greenbelt Act, 2005

Under the Greenbelt Act, 2005, the Greenbelt Plan, 2017 protects agricultural lands, water resources and natural areas in Ontario's Greater Golden Horseshoe region. The Greenbelt Plan was created and amended by the Ministry of Municipal Affairs and Housing. However, the jurisdiction for implementing and enforcing the Greenbelt Plan falls to the municipalities and conservation authorities within the Greenbelt. The Greenbelt Plan prescribes a minimum vegetation protection zone of 30 metres for wetlands and watercourses. Also, if a project is within 120 metres of a key natural heritage or hydrologic feature within the Protected Countryside as defined by the Greenbelt Plan, a natural heritage evaluation or a hydrological evaluation would be required to identify a vegetation protection zone.

Lake Simcoe Protection Act, 2008

Under the Lake Simcoe Protection Act, 2008, the Lake Simcoe Protection Plan is a comprehensive watershed-based legislated plan, administered and enforced by the LSRCA, to protect and restore the ecological health of Lake Simcoe and its watershed. Applicable to the project site, the following policies under the Lake Simcoe Protection Plan are intended to help improve water quality and prevent additional phosphorus loading to Lake Simcoe and to protect natural heritage. As per Policy 4.1-DP, a project mapped outside of a settlement area requires new sewage treatment plants, thus an environmental assessment will be required. Policy 6.40-DP requires an application for major development within a significant groundwater recharge area to be accompanied by an environmental impact study. Major development means development consisting of the construction of a building or buildings with a ground floor area of 500 square metres or more.^Footnote 19 Additionally, a new on-site sewage system or subsurface sewage works should be situated 100 metres away from the Lake Simcoe shoreline, other lakes, or any permanent stream as per policy 4.15-DP.

Failure to comply with the Lake Simcoe Protection Act may result in fines and court orders.

Ontario Heritage Act

The Ontario Ministry of Citizenship and Multiculturalism enforces Part VI of the Ontario Heritage Act. This portion of the act determines priorities, policies, and programs for the conservation of archaeological sites. The Ministry's Archaeology Review Officers review archaeological reports to ensure compliance with the Ontario Heritage Act. The Ontario Ministry of Citizenship and Multiculturalism or the prescribed public body requesting consent is responsible for public and/or Indigenous consultation and shall include that information in the consent request. Failure to comply with the Ontario Heritage Act may result in fines and imprisonment.

Ontario Water Resources Act

The Ontario Water Resources Act provides for the conservation, protection and management of Ontario's water and its efficient and sustainable use in order to promote Ontario's long-term environmental, social, and economic well-being.

An ECA may be required for activities listed under subsection 53(1) of the Ontario Water Resources Act if the activity has not been prescribed by the regulations for the purposes of subsection 20.221(1). Ontario Regulation 525/98: Approval Exemptions outlines exemptions from requiring an ECA. If an ECA for sewage works is required, MECP has the following guidance documents: Design Guidelines for Sewage Works,^Footnote 20 and B-1-5 Deriving Receiving Water Based Point Source Effluent Requirements for Ontario Waters.^Footnote 21 The Stormwater Management Planning and Design Manual^Footnote 22 provides technical and procedural guidance for planning, design and review of stormwater management practices, including guidance for stormwater management sewage works approvals under Section 53 of the Ontario Water Resources Act.

A Permit To Take Water, pursuant to the Ontario Water Resources Act, is required to take more than 50,000 litres of water per day from the environment, including lakes, streams, rivers, ponds, and groundwater sources. The Permit To Take Water includes requirements to assess impacts to surface and groundwater quantity and quality due to project activities. The permit places limits on the quantity and duration of water taking and requires reporting. Additional conditions could include monitoring requirements, seasonal restrictions, modifications to discharge locations, and remediation. The permitting process requires Indigenous and public consultation.

The EASR is applicable for certain routine and lower-risk water taking activities. If the water taking activity is registered in on the EASR, a Permit To Take Water is not required.

The Ontario Water Resources Act is enforced at the provincial level through inspections, and non-compliance results in offences and penalties, including fines.

Municipal Legislative Mechanisms

By-Law No. 2022-0038 (REG-1): Site Alteration By-Law

Any alteration to the grade of land, including filling, dumping, extracting or moving soil, must be performed in compliance with the Site Alteration By-Law. This By-Law was enacted to prevent drainage issues within the Town of Georgina and to protect groundwater and the environment from contamination. A Site Alteration and Entrance Permit would be required for activities related to the Project. Under this permit, the proponent would be required to ensure that all fill used meet the standards outlined in Ontario Regulation 406/19. Where more than 250 cubic metres of fill would be placed, the proponent would be required to enter into an agreement with the Town of Georgina to retain a qualified Professional Engineer or environmental consultant for ensuring that site alteration activities are in accordance with reasonable engineering and environmental practices, such as sediment and erosion control measures. The agreement with the Town would include a requirement for the environmental consultant to provide a written report on a regular basis on the placing or dumping of fill. The Site Alteration By-Law is enforced at the municipal level through inspections and orders. Non-compliance results in offences and penalties, including fines and convictions.

By-Law No. 2003-0075 (PWE-1): Noise By-Law

The Town of Georgina regulates many types of noises that may disturb the inhabitants of the Town. The Noise By-Law is enforced by the Municipal Law Enforcement Division and York Regional police. Failure to comply with By-law No. 2003-0075 (PWE-1) may result in fines.