Bill 100 by Tom Black

Published March 1, 2016

Tom Black

At first glance, most people will think that there is not much to worry about concerning Bill 100, “Supporting Ontario’s Trails Act” but the Ontario Landowners Association (OLA) has learned the hard way, that if you let bad legislation pass, then the only way to fix it is in court rooms at great expense to the individual.

Just for information purposes, in this Act, all conditions explained in Section 12, apply ONLY to private property. This is explained in Section 13 where it says, “Section 12 does not apply to any land owned by the Crown or to lands administered under the Conservation Authorities Act, the Public Lands Act or the Provincial Parks and Conservation Reserves Act, 2006”. I talked to people from the Ontario Trails Council (OTC), the people who want this bill passed, and they told me that there are about 2500 trails in Ontario that total about 80,000 km. 20,000 km. of those are on private property.

So here are some of our concerns. If we agree to accept a trail easement on our property, then Section 12 describes all the eligible nominees or eligible bodies that can potentially share this easement. Under Section 12 (1) there are thirteen subsections (a) through (m) describing who can be an eligible body to register the easement. Conservation Authorities, Crown Agencies, Municipalities, and Native and Aboriginal groups are all eligible as well as subsection (k) which mentions entities from the United States. (When talking to Minister Coteau’s office on Friday, they informed me that those entities are Conservation Land Trusts from the USA).

In Section 12 (1) (m) it refers to “any other person or body prescribed by the regulations made under this Act”. None of us can predict what the regulations for this Act will look like, because they will be written in the back rooms by the bureaucrats with no oversight by the public or the property owners, until they become law and one is forced to deal with them in court.

Now we move onto Section 12 (2) that describes the eligible body “as one who is acceptable to become a registered owner of an interest in land”.

Section 12 (3) says “an owner of land may grant an easement, with or without covenants, to one or more eligible bodies. Section 12 (4) confirms that eligible bodies can then convey land to other bodies. Section 12( 6) says “the eligible body shall register the easement against the land affected in the proper land registry office and, once registered, the easement and any covenants contained in the easement, run with the land against which it is registered”. In Section 12(8) it says that eligible bodies can transfer its rights to another eligible body. Now this is where the property owner must be very careful and put written conditions on the use of the trails. There is nothing in this Act that requires the entities who make an agreement with property owners to fully explain the consequences of signing up for an easement. There is also nothing in this Act that requires a written ‘wet-ink’ signed contract with witnesses to protect the property owner who may not understand the words of the contract. There is nothing in this Act which explains that once the owner has agreed to an easement, although they still own the land, they have lost the right to use the land as they want.

For any of those who think that you can change an easement, which is a contract, Section 13 makes it very clear when it states, “an eligible body may enforce an easement that is registered on title to the land, including any covenants contained in the easement against the owner of the land and against any subsequent owner of the land, against which it is registered.

The folks from the OTC insist that they are content to continue with the traditional handshake agreements that have served us well in the familiar spirit of community and insist that they do not need a registered easement to continue their trails network. However, nothing in this Act spells out this option clearly. It would seem then, that the only reason to sign an easement would be to help extend control for the Ministry of Natural Resources, Municipalities, Conservation Authorities, and Conservation Land Trusts over private property. Although the OTC has heard the OLA’s concerns, they say that they would not withdraw their support for the Act because they had worked on it for too long. The OLA favours withdrawal of the Act to allow time for proper review and consultation.

If any group comes knocking on your door looking for permission to use your land for their trails, it is in your best interests to have all the details of the agreement and then take that contract to your lawyers and have them confirm that you are protected, before you sign. This bill seriously underestimates the physical, emotional and economic connection that rural people have to their property. This bill by its vagueness and association with different entities has led people to believe that there was an intentional motive to gain permanent access to rural land. One thing for sure, most people on the rural roads know that when you mention Conservation Authorities, Private Property, and Easements in the same Act, nothing good will come of it.

1 Response to “Bill 100 by Tom Black”

  1. Eric Jelinski March 1, 2016

    Thank you Tom. I can only say after seeing how roughshod the government and wind developers are towards landowners, The best solution to these “trails” is to make no agreement wrt easement(s).

    Trails started out with local snowmobile clubs approaching farmers and farmers being charitable to local people being able to enjoy the scenery of the back fourty.

    Sadly, this has evolved to become big business with corporate money involved eg. sleds and clothing and other big money activities and the farmer is being reduced to a pawn who is expected to provide the easement but gets nothing in return. And, the return may be negative as you suggest with no-do-gooders traipsing across your land interfering with farming operations, and with potential for unlawful activities taking place away from public view.

    My response to a local snowmobile club maybe to provide a single season use privilege of access for a fee that may be renewed or withdrawn by the land owners sole discression. You should write the basic intent of such and agreement and then have it vetted by your lawyer to put boiler plate on it.

    The other response may be that they can use existing road allowances. There are also many miles of abandoned railway right of ways that they can use.

    Giving away land that has been paid for by the sweat of your work is just not on.

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