Court not convinced that area is wetland – farmer acquitted

AS PREVIOUSLY PUBLISHED IN THE RURAL VOICE:

Conservation Authorities in Ontario are authorized by the Conservation Authorities Act (the “Act”) to make regulations “prohibiting, regulating or requiring the permission of the authority for straightening, changing, diverting or interfering in any way with the existing channel of a river, creek, stream or watercourse, or for changing or interfering in any way with a wetland”.  Authorities can also make regulations “prohibiting, regulating or requiring the permission of the authority for development if, in the opinion of the authority, the control of flooding, erosion, dynamic beaches or pollution or the conservation of land may be affected by the development”.  There is almost no area within Southern Ontario that is not subject to a regulation passed by a local or regional Conservation Authority.  However, generally, these regulations can only apply to river or stream valleys, hazardous lands or wetlands – “regulated areas” or “zones”.   

What constitutes a regulated area or zone is not always obvious.  For instance, a river or stream valley doesn’t actually have to contain a watercourse – the regulations can apply to areas with “depressional features associated with a river or stream”.  The Act defines “hazardous land” as “land that could be unsafe for development because of naturally occurring processes associated with flooding, erosion, dynamic beaches or unstable soil or bedrock”, but doesn’t define what might be unsafe.  To be considered “wetland” under the Act, land must meet the following four highly technical requirements (and not fall under the exception):

(a)            be seasonally or permanently covered by shallow water or have a water table close to or at its surface,

(b)          directly contribute to the hydrological function of a watershed through connection with a surface watercourse,

(c)           have hydric soils, the formation of which has been caused by the presence of abundant water, and

(d)            have vegetation dominated by hydrophytic plans or water tolerant plants, the dominance of which has been favoured by the presence of abundant water, but not be periodically soaked or wet land that is used for agricultural purposes and no longer exhibits a wetland characteristic referred to in clause (c) or (d).  [emphasis added]

The regulation of development also applies to “other areas where development could interfere with the hydrologic function of a wetland, including areas within 120 metres of all provincially significant wetlands and areas within 30 metres of all other wetlands.”

In a prosecution by a Conservation Authority for development in a regulated area without a permit or for interference with a wetland, the Authority must establish beyond a reasonable doubt that the activity carried out by the party charged occurred within a regulated area.  The Ontario Court of Justice recently dismissed charges against a farmer related to clearing work carried out in 2019 because the Conservation Authority failed to prove beyond a reasonable doubt that the area cleared was a wetland, as was alleged by the Authority.  The farmer had removed trees and vegetation from a “wooded area” located between tile-drained cultivated land to the north and east and intersecting drainage ditches to the south and west.  The land was cleared to extend the tile drainage system and bring the land under cultivation.  After receiving an anonymous complaint about trees being removed from the farmer’s property and conducting a further investigation, the Conservation Authority laid various charges, including a charge for interference with a wetland. 

At trial, both the Conservation Authority and the farmer called expert witnesses to testify on the question of whether the area cleared was, in fact, a wetland.  The Authority called one of its employees who had taken soil samples from the cleared area a few months after the clearing work was completed and took photos.  She confirmed that on her visit to the site in the midst of the spring thaw in April, 2020 she did not observe water on the cleared area.  She confirmed that she did not encounter the water table in any of her examinations of the area.  However, the Conservation Authority’s expert witness did say that the clay soil and “orange soil” she encountered could be indicators of hydric soils.  Also, she observed vegetation that she considered to be “hydrophytic plants” adjacent to the cleared area and in the piles of cleared vegetation or “slash piles”.  The Authority’s expert’s opinion was that the cleared area met the statutory definition of a wetland.

The farmer’s expert witness dug two 1-metre-deep pits just outside the cleared area to assess the soil in the cleared area.  His opinion was that hydric soils must contain gley soil, a rich grey clay-like soil.  The farmer’s expert did not encounter any gleys.  While he did find that the soils were imperfectly drained and opined that imperfectly drained soil could be considered hydric soil depending on the vegetation present, his conclusion was that the cleared area was not a wetland within the meaning of the term used in the Act.

The Justice of the Peace presiding over the case observed that there was no evidence that the cleared area was seasonally covered by water, that any hydric soils present were caused because of an abundance of water in the area, or that hydrophytic or water tolerant plants dominated the area (as favoured by an abundance of water).  As such, three of the four requirements for a “wetland” under the Act were not met and the wetland interference charge had to be dismissed.

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.

Manitoba Court of Appeal upholds convictions for maintaining illegal trenches

Employees from the Department of Natural Resources (DNR) in Manitoba had investigated the unauthorized draining of wetlands on a farm in 1998.  The landowner obtained licenses from DNR for four specific wetlands, but the licence for Wetland #1 prohibited any drainage.  In 2000, a man-made trench draining Wetland #1 was discovered.  A charge was laid by the DNR, but subsequently stayed.

 

By 2008, it was discovered that both Wetlands #1 and #2 had been completely drained with two man-made trenches, neither of which had been authorized by DNR.  Wetland #1 appeared to have been cultivated and worked through with farm machinery.

 

The landowner was charged under the Water Rights Act with two counts of establishing or maintaining illegal trenches without a licence.  The trial judge convicted the landowner and fined him $1,500 on each count.  Although he determined that there was no evidence that the landowner had established, constructed or actively maintained the trenches, the trial judge decided that the fact that the landowner knew about the existence of the trenches and did nothing to eliminate them was evidence of passive maintenance sufficient to support the convictions.

 

On summary conviction appeal, the appeal judge determined that passive acts of maintenance were not sufficient to support convictions, but nevertheless upheld the convictions because: 1) for the first trench, there was evidence that a crop was planted and harvested there, meaning that the trench was actively maintained; and, 2) for the second trench, because it had not previously existed, the only reasonable inference was that it had been established or constructed by the landowner.

At the further appeal before the Court of Appeal, the Crown conceded that the summary conviction appeal judge had erred by upholding the convictions on the basis of facts not supported by the trial record.  There was simply no evidence that the appellant landowner had constructed or established the second trench in the time period cited in the charge or that he had planted and harvested in the first trench.  The question on the appeal therefore turned on the effect of "passive maintenance".

The appellant landowner argued that the prohibited act or "actus reus" of the offence required proof of active maintenance of the trenches; the Crown argued that keeping the trenches in existence without active maintenance would be sufficient.  The Court of Appeal agreed with the Crown's position and ruled that "maintenance" included keeping the trenches in existence without active maintenance.  The Crown did not need to prove that the landowner knew the trenches were on his land or that he actively maintained them.

Read the decision at: R. v. Dickson (W.A.)