Conservation Authority Act changes are coming - Landowners beware

The Ontario Government has recently introduced Bill 139, the Building Better Communities and Conserving Watersheds Act, 2017.  While the proposed legislation has been in the news on account of the major changes to be made to land use planning, replacing the Ontario Municipal Board with the Local Planning Appeal Tribunal, the legislation would also make significant changes to the Conservation Authorities Act.  The summary notes for Bill 139 explain:

The provisions regulating activities that may be carried out in the areas over which authorities have jurisdiction are substantively amended (sections 28 and 29). Section 28 of the Act is repealed.  That section currently gives authorities certain regulation-making powers, including the power to regulate the straightening, changing and diverting of watercourses and development in their areas of jurisdiction and to prohibit or require the permission of the authority for such activities. The re-enacted section 28 prohibits such activities so that the previous regulation-making power is no longer required. Furthermore, new section 28.1 gives the authorities the power to issue permits allowing persons to engage in the prohibited activities and section 28.3 allows authorities to cancel the permits in specified circumstances. New regulation-making powers are set out in section 28.5 in respect of activities that impact the conservation, restoration, development or management of natural resources.

Sections 30 and 30.1 are repealed and sections 30 to 30.4 are enacted in relation to the enforcement of the Act and offences. Authorities are given the power to appoint officers who may enter lands to ensure compliance with the Act, the regulations and with permit conditions. The officers are also given the power to issue stop orders in specified circumstances. Offences for contraventions of the Act, the regulations, permit conditions and stop orders are set out in section 30.4 and the maximum fines under the Act are increased from $10,000 to $50,000 in the case of an individual and to $1,000,000 in the case of a corporation. An additional fine of $10,000 a day for individuals and $200,000 a day for corporations may be imposed for each day the offence continues after the conviction. Section 30.6 expands the existing powers of the court when ordering persons convicted of an offence to repair or rehabilitate any damage resulting from the commission of the offence.

As drafted, the new legislation would prohibit "development" (without a permit) in the same areas currently covered by the Conservation Authorities Act and the individual CA regulations made under it, as well as in "other areas in which development should be prohibited or regulated, as may be determined by the regulations."  Whether that amendment makes much practical difference is debatable, but another related change will most likely have a practical effect for landowners in Ontario.  Whereas in the current Act, terms like "development" and "wetland" are defined, the new legislation says that those essential terms will be defined by regulation to be made by the provincial cabinet (and, more particularly, the Ministry of Natural Resources).  It's not clear at this point how the terms will be defined.

If Bill 139 passes, then landowners should take great interest in the development of the regulations to be made pursuant to the Act.  Those regulations could effect significant change in the way that the use of land, including farm land, is restricted in Ontario.

Read the Bill at: Bill 139, Building Better Communities and Conserving Watersheds Act, 2017.

Conservation Authority planning to appeal Divisional Court decision

This relates my previous post on the Gilmor v. Nottawasaga Valley Conservation Authority decision of the Divisional Court.  It appears that the NVCA plans to appeal the decision and is seeking leave to appeal from the Court of Appeal.  This is indicated in a ruling in a related Human Rights Tribunal matter (see AG v. NVCA) commenced by one of the landowners involved.

UPDATE:  Leave to appeal was granted to NVCA on February 19, 2016 by the Court of Appeal for Ontario.

Ontario Divisional Court rules conservation authority was wrong to apply general prohibition on development

The Gs purchased land in 2008 with a view to building a home.  Their lot, along with neighbouring 10 acre lots on which homes had already been constructed, was originally subdivided in the 1960s.  Although there was a shed, a garden and a driveway on their lot, no house had yet been built on the Gs' lot.

Long after the subdivision of the lots in the 1960s, the Gs' land was designated as a part of an environmentally protected area.  The reason for the designation was the small drainage ditch that crossed their land behind the area where they proposed to build a house.  That drainage ditch proceeds through the Gs' neighbour's land (where a house had already been built), through a culvert under a public road, and eventually to a creek that is a branch of the Nottawasaga River, the watershed of which is subject to the jurisdiction of the Nottawasaga Valley Conservation Authority (the "NVCA").

The NVCA refused to grant permission to the Gs to build their house on the fringe of a potential floodplain regulated by the NVCA.  The Gs made an application for permission to build in 2009, and provided extensive evidence establishing the lack of any adverse impact of their proposed building on flood control.  Notwithstanding this evidence, the NVCA turned down the Gs' application.  The Gs then appealed to the Deputy Mining and Lands Commissioner (the "Tribunal").  The Tribunal turned down the appeal.  The Gs then appealed to the Divisional Court.

The Divisional Court found that the CA and the Tribunal had misconstrued the law as providing for a prohibition on development within the CA's area of jurisdiction.  The Court noted: "In the present case, the public interest which the NVCA was authorized to supervise was that of flood control - this limited but important jurisdiction was not intended to be wielded to assert wider jurisdictional authority than the Legislator had conferred and it certainly does not provide a general prohibition against development."

The Divisional Court allowed the Gs appeal and directed the approval of the proposed development without conditions and without a rehearing of the application:

"Subsection 3(1) of Ont. Reg. 172/06 (hereafter the “NVCA Regulation”) required the Tribunal to assess whether the proposed development would affect flood control and several other factors.  Instead, the Tribunal interpreted the law to impose a general policy prohibiting development subject only to an exceptional discretion, and the Tribunal placed a heavy if not impossible onus on the Gs to justify an exceptional departure from the general prohibition.  In so doing, the Tribunal made the same error of law that this court corrected in the case of 3437400 Canada Inc. v. Niagara Peninsula Conservation Authority, (2012), 354 D.L.R. (4^th) 756 (Ont. Div. Ct.). Properly interpreted, the NVCA Regulation does not prohibit development in designated areas; it only prohibits developments that are found to affect flood control or one of the other listed criteria (none of which were engaged in the immediate case). 

"The Tribunal (and the NVCA) incorporated within its analysis of flood control a concern for safety should there be a flood at the property, but on the evidence, the proposed development will not have any effect on flood control as such, and the evidence revealed only a very low risk to safety, even in the event of a hypothetical extreme flood of rare severity.  The Gs’ application ought to have been approved based on the uncontradicted evidence before the Tribunal, and this court has the appellate jurisdiction to grant an unconditional approval.  The Gs have other regulatory hurdles to cross before they can get final approval to complete their home.  Neither the interests of justice nor efficiency and economy of proceedings would justify requiring them to proceed through a third hearing on this matter six years after they commenced the application process." 

Read the decision at: Gilmor et al. v Nottawasaga Valley and The Township of Amaranth.

Ontrario Conservation Authorities Act Review Engagement Session Dates

Conservation Authorities Act Review Engagement Session Dates

As part of the Ministry of Natural Resources and Forestry’s (MNRF) commitment to initiate a review of the Conservation Authorities Act, a discussion paper has been posted to the Environmental Registry to solicit feedback on opportunities to improve the existing legislative, regulatory and policy framework that currently governs conservation authorities and the programs and services they deliver on behalf of the province, municipalities, and others.

The Discussion Paper can be viewed by going to the following link and searching for registry number 012-4509 http://www.ebr.gov.on.ca/ERS-WEB-External/. The discussion paper will be posted for a 90 day period. The deadline for submitting comments is October 19th, 2015.

As part of the review, a number of regional engagement sessions have been scheduled to provide municipal officials, staff, and associations with an opportunity to provide input into the review. The dates and locations for these sessions are:

• Thursday, September 24th at the Smith Falls Memorial Community Centre, 71 Cornelia Street West, Smith Falls, Ontario from 1pm to 4pm
• Wednesday, September 30th at the Columbus Centre, 301 May St. South, Thunder Bay, Ontario from  9am to 12pm
• Friday, October 2nd at the Steelworkers’ Union Hall and Conference Centre, 66 Brady Street, Sudbury, Ontario from 9am to 12pm

If you are interested in participating in any of these sessions, please RSVP to the Water Resources Section at mnrwaterpolicy@ontario.ca identifying which session(s) you will be attending.

Thursday, September 24, 2015 - 1:00pm
Wednesday, September 30, 2015 - 9:00am
Friday, October 2, 2015 - 9:00am

Jennifer Keyes
Manager, Water Resources Section
Natural Resources Conservation Branch, Policy Division
Ministry of Natural Resources and Forestry
705-755-5244
jennifer.keyes@ontario.ca

Ontario Conservation Authorities Act Review Discussion Paper

EBR Registry Number:   012-4509

Ministry of Natural Resources and Forestry

Date Proposal loaded to the Registry:
July 20, 2015            

Description of Policy:

The Conservation Authorities Act, administered by the Ministry of Natural Resources and Forestry (MNRF), enables two or more municipalities in a common watershed to establish a conservation authority in conjunction with the province. The purpose of a conservation authority is to deliver a local resource management program at the watershed scale for both provincial and municipal interests.

Conservation authorities have played a significant role in Ontario’s natural resource management landscape for nearly 70 years, establishing a successful legacy of resource stewardship and an impressive record of protecting people, property, and communities from water-related natural hazards (e.g. flooding, drought, erosion).

In order to ensure that the Act is meeting the needs of Ontarians in a modern context, the MNRF is seeking to engage with ministries, municipalities, Aboriginal communities, conservation authorities, stakeholders and the public to initiate a review of the Conservation Authorities Act, including addressing roles, responsibilities, funding and governance of conservation authorities in resource management and environmental protection.

The posting of a discussion paper is intended to solicit public and multi-sector perspectives on the existing legislative, regulatory and/or policy framework which governs conservation authorities and the programs and services they deliver.

This discussion paper outlines a number of ways to engage in the review and MNRF encourages all parties to participate. The discussion paper focuses on the Conservation Authorities Act and policy framework, not on any individual conservation authority.

Purpose of Policy:

The purpose of this discussion paper is to identify opportunities to improve the existing legislative, regulatory and policy framework that currently governs conservation authorities and the programs and services they deliver on behalf of the province, municipalities, and others.

Other Information:

While feedback on any aspect of the existing legislative and regulatory framework is welcome, the focus of the discussion paper is on the three overarching areas of:

1. Governance;
2. Funding mechanisms; and
3. Roles and responsibilities.

Link to the discussion paper: http://apps.mnr.gov.on.ca/public/files/er/Discussion_Paper_2015.pdf

The following weblinks provide the supporting/additional information about this notice:
• The Conservation Authorities Act
http://www.ontario.ca/laws/statute/90c27
• Ontario Regulation 97/04 – Content of Conservation Authority Regulations
http://www.ontario.ca/laws/regulation/040097
• Ontario Regulation 139/96 – Municipal Levies
http://www.ontario.ca/laws/regulation/960139
• Ontario Regulation 670/00 – Conservation Authority Levies
http://www.ontario.ca/laws/regulation/000670
• Conservation Authorities
https://www.ontario.ca/environment-and-energy/conservation-authorities

Public Consultation:

This proposal has been posted for a 91 day public review and comment period starting July 20, 2015. If you have any questions, or would like to submit your comments, please do so by October 19, 2015 to the individual listed under "Contact". Additionally, you may submit your comments on-line.
All comments received prior to October 19, 2015 will be considered as part of the decision-making process by the Ministry if they are submitted in writing or electronically using the form provided in this notice and reference EBR Registry number 012-4509.

Please Note: All comments and submissions received will become part of the public record. You will not receive a formal response to your comment, however, relevant comments received as part of the public participation process for this proposal will be considered by the decision maker for this proposal.

Other Public Consultation Opportunities:

Written comments and other feedback can also be sent directly to the Ministry of Natural Resources and Forestry at mnrwaterpolicy@ontario.ca

Contact:

All comments on this proposal must be directed to:

Julia Holder
Policy Analyst
Ministry of Natural Resources and Forestry
Policy Division
Natural Resources Conservation Policy Branch
Water Resources Section
300 Water Street
Peterborough Ontario
K9J 8M5
Phone: (705) 755-5905
Fax: (705) 755-1957 

NEB decides that Trans Mountain - Burnaby dispute raises constitutional question

About a month ago, I posted about a fight going on before the National Energy Board between Trans Mountain Pipeline (Kinder Morgan) and the City of Burnaby with respect to property access for the proposed Trans Mountain Pipeline Expansion Project.  At that time, the NEB sided with Trans Mountain in rejecting a request by Burnaby for answers to constitutional questions including whether a company's right to survey under Section 73 of the National Energy Board Act (NEB Act) could displace a municipality's by-laws.  The NEB said that Trans Mountain had not made any application for an order requiring Burnaby to allow access to City lands. 

My guess a month ago was that Trans Mountain would have to bring an application for access, and it has.  Now the NEB says that the constitutional question must be answered and has ordered that Trans Mountain provide the Notice of a Constitutional Question to be served on the attorneys-general of Canada and the provinces and territories.  The decision can be accessed at: Ruling No. 32.

Although the NEB continues to maintain its interpretation of Section 73 (i.e. that companies have a right to enter upon lands and complete surveys and examinations), it explains why the Burnaby situation raises a constitutional question:

The Board accepts that it has the authority to consider constitutional questions as they relate to its enabling legislation, pursuant to section 12. The Board can refuse to apply provisions within its enabling legislation if the Board determines that those provisions are contrary to constitutional law. However, this is not the relief requested by Trans Mountain from the Board, nor has Burnaby argued in this instance that the provisions of the NEB Act are unconstitutional.

While the draft order proposed by Trans Mountain does not specifically request that the Board order Burnaby to stop enforcing its by-laws, it is clear from the above quote that this is the desired effect of such an order. This may require the Board to find, either directly or indirectly, that, on the facts before it, legislation or by-laws enacted by another level of government are inapplicable to Trans Mountain and that, consequently, that government should be forbidden by the Board to take any actions to enforce those laws. In the Board’s view, this clearly raises a constitutional question.

This is a case to keep your eyes on.  Should NEB-regulated pipeline companies have a right to run roughshod over pre-existing municipal by-laws?

Court orders berm removed, says landowner "appears to like to act first and seek required permission later"

The Regional Municipality of York (the "Region") went to court for an injunction requiring the removal of a berm that was installed by a local landowner.  The Region alleged that the berm, which was constructed in August, 2012 and measured approximately 3.5 metres high by 157 metres long, caused pooling in the ditches along neighbouring roads.  The berm cut off the flow of an intermittent watercourse that ran over the subject property from a culvert running beneath one of the roads into a wetland.

In 2012, the landowner applied retroactively to the local conservation authority for a permit to construct the berm.  The permit was not granted and the conservation authority issued a Notice of Violation with respect to the "unauthorized development, interference or alteration in or on a wetland setback".  The prosecution of that violation was the subject of a separate court proceeding.

The defendant landowner contended that there never was a watercourse on his property and denied that the berm was within a provincially significant wetland (PSW) or within the 120 metre PSW setback.  Also, the defendant claimed that the culvert from which the water was to flow was not operational before July, 2012 - he installed the berm only to deal with the new water flow created by work done on the culvert by the Region.  The Region denied this, saying that work done in July, 2012 was only to remove some sediment build up; the culvert had been in place for 35 years.

The Court rejected the evidence of the landowner and granted the injunction requested by the Region.  The Court found the landowner's evidence to be "unreliable": "I accept that his motives for building the berm may not be as altruistic as he wishes this court to see them.  As such, where [the landowner's] evidence and that of the Region conflict, I prefer the evidence of the Region."  The Court's decision also reads: "I find that [the landowner's] argument that the berm is not within the setback area to be disingenuous in the face of the evidence presented.  It appears that he does not like to be told what to do when it comes to his property.  He applied for permission to construct the berm only after he had already constructed it. ... [He] appears to like to act first and seek required permission later."

The injunction was granted based on the test applicable to the power to grant an injunction under the Municipal Act, 2001 where a by-law has been violated.  However, the Court would also have granted an injunction in this case on the basis of the berm constituting a public nuisance. 

Reading the Court's decision, one cannot help but conclude that this was the case of a rogue landowner cutting off an established watercourse to a wetland.  However, situations like these are not always so simple.  It is often the case that a wetland is created artificially through development of neighbouring properties - a road is installed or a residential subdivision is created with the result that drainage patterns are changed and a previously dry area becomes intermittently or permanently wet.  Local conservation authorities will take charge of the new wetland and prevent the affected landowner from remedying the drainage problem.

Landowners should be vigilant when it comes to drainage problems and the potential creation of wetlands on their properties.  It's one thing to want to create a new wetland - it is an entirely different thing to have the conservation authority tell you that you must have a wetland.  Drainage problems should be addressed sooner rather than later.

Read the decision at: Regional Municipality of York v. DiBlasi.

Proposed Drainage Act and Conservation Authorities Act Protocol

From the Environmental Bill of Rights Registry:

In recent years, challenges have arisen in implementing the requirements of the Drainage Act and those of the Conservation Authorities Act.  Under the Drainage Act, municipalities are required to maintain and repair municipal drains, while under the Conservation Authorities Act, conservation authorities are required to regulate interference with or alterations to watercourses, including municipal drains where applicable.

The proposed protocol (the Drainage Act and Conservation Authorities Act Protocol) was developed by an inter-agency team co-chaired by the Ministry of Natural Resources and the Ministry of Agriculture, Food and Rural Affairs, with representation from the drainage sector, agricultural sector, municipalities and conservation authorities. It is intended to improve communications, promote best practices, reduce administrative burden and streamline the permitting process under the Conservation Authorities Act related to the maintenance and repair of municipal drains. The proposed protocol does not apply to new drain construction or improvements to existing drains.

The proposed protocol contains:

a) best practices to facilitate good working relationships between conservation authorities, drainage superintendents and municipalities;
b) sets of standardized requirements for undertaking drain maintenance and repair in compliance with regulations under the Conservation Authorities Act (Standard Compliance Requirements).

Under the proposed protocol, municipalities and conservation authorities may use Standard Compliance Requirements to request or issue permission for drain maintenance or repair in place of the regular conservation authority permit application and issuance process. Conservation authorities could still require a regular permit for some activities if they determine that the activity will not be able to meet Standard Compliance Requirements, or if the standard requirements are not deemed sufficient for that activity.

The proposed protocol contains provisions for the establishment of a Drainage Issues Resolution Team to mediate discussions and recommend solutions in the event that agreement between the conservation authority and municipality cannot be reached. The proposed protocol also uses a combined notification/application form for the federal Species at Risk Act and Fisheries Act as well as the Ontario Endangered Species Act and Conservation Authorities Act into a single notification form which is sent to multiple agencies.

The proposal has been posted for a 45 day public review and comment period starting March 09, 2012.  Comments can be sent to:

Rheanna Leckie
PROGRAM ANALYST
Ministry of Natural Resources
Regional Operations Division
Integration Branch
Land and Water Services Section
300 Water Street
Peterborough Ontario
K9J 8M5
Phone: (705) 755-5405
Fax: (705) 755-1276

The online comments form is at: Comments.

Ontario Water Source Protection Plans

Conservation Authorities across Ontario are completing Assessment Reports related to water source protection planning.  Some reports are still at the draft stage, but most have passed through a 35-day public consultation period (noted as "proposed" below).  Several reports have been approved.  To view the status of the assessment report in your source protection area, click on the following link: Source Protection.  There are links there to the reports themselves as well.

Ausable Bayfield Conservation Authority ProposedAR
Cataraqui Region Conservation Authority ProposedAR
Catfish Creek Conservation Authority ApprovedAR
Central Lake Ontario Conservation Authority ProposedAR
Conservation Halton ProposedAR
Credit Valley Conservation ProposedAR
Crowe Valley Conservation Authority ProposedAR
Essex Region Conservation Authority ProposedAR
Ganaraska Region Conservation Authority ProposedAR
Grand River Conservation Authority ProposedAR
Grey Sauble Conservation Authority ProposedAR
Hamilton Region Conservation Authority ProposedAR
Kawartha Conservation ProposedAR
Kettle Creek Conservation Authority ApprovedAR
Lake Simcoe Region Conservation Authority DraftAR
Lakehead Region Conservation Authority ProposedAR
Long Point Region Conservation Authority ProposedAR
Lower Thames Valley Conservation Authority ProposedAR
Lower Trent Conservation ProposedAR
Maitland Valley Conservation Authority ProposedAR
Mattagami Region Conservation Authority ApprovedAR
Mississippi Valley Conservation ProposedAR
Niagara Peninsula Conservation Authority ProposedAR
Nickel District Conservation Authority ProposedAR
North Bay-Mattawa Conservation ProposedAR
Nottawasaga Valley Conservation DraftAR
Otonabee Conservation ProposedAR
Quinte Conservation ProposedAR
Raisin Region Conservation Authority DraftAR
Rideau Valley Conservation Authority ProposedAR
Saugeen Conservation ProposedAR
Sault Ste. Marie Region Conservation Authority ProposedAR
South Nation Conservation Authority DraftAR
St. Clair Region Conservation Authority ProposedAR
Toronto and Region Conservation ProposedAR
Upper Thames River Conservation Authority ProposedAR

Ontario aiming to improve Conservation Authority permitting process for applicants

As part of the Open for Business initiative of the government, the Ministry of Natural Resources is proposing amendments to Ontario Regulation 97/04, (the “Content of Conservation Authority Regulations under Subsection 28 (1) of the Act: Development, Interference With Wetlands And Alterations to Shorelines and Watercourses”) under the Conservation Authorities Act. The proposed amendments are intended to simplify and streamline the permitting process that conservation authorities undertake under Section 28 of the Conservation Authorities Act through 36 individual authority regulations.

The proposed amendments are also intended to support conservation authority compliance with the timelines for decisions on Conservation Authority Act Section 28 permit applications outlined in the ‘Policies and Procedures for Conservation Authority Plan Review and Permitting Activities’ document (‘Policies and Procedures’ document) previously posted to the Environmental Registry (Environmental Registry # 010-8243). The ‘Policies and Procedures’ document forms a chapter of the Conservation Authorities Policies and Procedures Manual that guides provincial aspects of conservation authority operations. The intent of the chapter is to describe the roles of conservation authorities in municipal planning and plan review, and under the Conservation Authorities Act Section 28 permitting related to development activity and the protection of environmental interests.

The Ministry is streamlining the permitting process by:

Enabling the conservation authority to delegate its powers under the regulation including the power to make positive permit decisions to the conservation authority’s executive committee or conservation authority employees.

Extending the maximum period of validity of a permit from 24 months to 60 months.

The anticipated environmental consequences of the regulation proposal are considered to be neutral. The improvements to the permitting process are for the applicant or development proponent and do not impact what the conservation authority regulates or by what considerations.

The anticipated social consequences are positive to neutral. This proposal is intended to reduce wait times for a decision on a permit for an applicant or development proponent for straight forward and uncomplicated development activities. For larger development applications and proponents the proposal is intended to reduce frustration, cost and duplication of effort in having to re-apply for a permit where a development project may require permits or approvals from other regulatory bodies that cannot be reasonably obtained before the expiration of the Conservation Authorities Act Section 28 permit. This is intended to improve business relationship between the conservation authorities and applicants or development proponents for Conservation Authorities Act Section 28 permits.

The anticipated economic consequences are positive to neutral. The amendments streamline the permit process by delegating positive permit decisions to conservation authority staff. Currently the Conservation Authority Board which met generally monthly make all permit decisions, by delegating to staff, wait times for some permit decisions are reduced for the applicant. With the extension of the validity of a permit from 24 months to 60, this may reduce the requirement for larger development proponents to need to re-apply for a permit while waiting for other approvals from other regulatory bodies or given extended construction timelines.

All comments on this proposal must be directed to:


Chris Popovich
Great Lakes & Water Policy Section Intern
Ministry of Natural Resources
Policy Division
Biodiversity Branch
Great Lakes & Water Policy Section - Peterborough
300 Water Street
Floor 5 South
Peterborough Ontario
K9J 8M5
Phone: (705) 755-5591
Fax: (705) 755-1957