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Monday, December 21, 2015

When the Drainage Act and Conservation Authorities Clash

In a case decided in September, 2015, the Agriculture, Food and Rural Affairs Appeal Tribunal examined the interplay between the Drainage Act and conservation authorities in Ontario.  The matter involved a farmer who wanted to drain cleared, cultivated agricultural land through a low, wet bush and a cattle-tramped low run that happened to contain 28 minnows.  The farmer initiated a process under the Drainage Act, and was then assessed a bill of nearly $50,000 for an "environmental impact study" that was allegedly required for a permit from the local conservation authority ("CA").

Under the Drainage Act, a conservation authority or government may request an "environmental appraisal" for a new drain, but the party making the request is responsible for the cost.  In this case, the farmer did not request the "environmental impact study" and did not apply for any permits from the CA.  However, as the Tribunal noted, "the CA took over jurisdiction, admittedly ignorant of certain parts of the Drainage Act.  The CA prosecuted its own CA mandate over the farmer and his drain request with great earnestness, if not zealously."

In the hearing of the farmer's appeal of the assessed cost, the CA argued essentially that the Tribunal had no jurisdiction over it.  The CA candidly pleaded its ignorance of the drainage laws and, furthermore, that the CA's statutes are more recent and consequently take precedence.  Lastly, the CA argued that its work related to an "environmental impact study" and not an "environmental appraisal".

The Tribunal found that it did not have jurisdiction over the CA in this case.  It also found that the Municipality involved (which sought to put the cost of the "environmental impact study" on the landowner) should bear the cost of the environmental study.

In examining the jurisdiction issue, the Tribunal noted that the CA had notice of the Drainage Act process initiated by the farmer, but waited more than a year later to demand an "environmental impact study" under its own legislative regime.  The CA did not request an "environmental appraisal" under the Drainage Act.  The tribunal concluded the following:
What the Tribunal has ascertained under law (rather than equity) is that there are 2 parallel regulatory schemes.  Neither is inconsistent with the other.  Technically phrased: obedience to one does not necessitate disobedience to the other.  The CA has the right to request an environmental appraisal under the Drainage Act or its own regulatory scheme.  There is no overt or even nuanced conflict between the regulatory regimes.  Even though the CA dithered regarding the petition process under the Drainage Act, it could still invoke the processes under the Conservation Authorities Act.
 The tribunal is acutely aware that this interpretation allows the CA to potentially circumvent or thwart the Drainage Act processes.  It makes the petition process, especially section 6 moot.  That means the CA can avoid the intrinsic balance of costs and demands legislatively fixed in the Drainage Act with over a century of experience.  Then again the Tribunal expects that the knowledge of this decision will become wide spread amongst the drainage and conservation communities.  Ignorance and indifference can no longer be pled.  Perhaps as is the case with maintenance of drains, the drainage and conservation communities can establish policies that are respectful of both mandates.
Having no jurisdiction over the CA, the Tribunal then decided the issue of responsibility for the cost of the environmental report between the farmer and the municipality.  The Tribunal ordered that the municipality bear the full cost of the report, finding that the excessive cost could have been avoided if the municipality had properly facilitated the drainage proposal.

There was a dissenting opinion from one of the members of Tribunal.  That member would have found that the Tribunal did have jurisdiction over the CA and would have ordered the full cost of the report to be borne by the CA.

Read the decision at: Darmar-Tamlin Municipal Drain (RE).