Conserving Their Future Restraining Citizens’ Rights by Leith Coghlin

Every landowner in Ontario should be worried about Bill 139.

In May, the provincial government tabled Bill 139, the Building Better Communities and
Conserving Watersheds Act, 2017. The legislation is the culmination of several years of work at the behest of both the conservation authorities’ lobby and municipalities who all view the current Act as outdated and restrictive.

But if you are a landowner in Ontario, Bill 139 gives conservation authorities and municipalities more power, reduces citizens’ avenues for appeal and procedural grounds to seek remedy, and will doubtless embolden smaller authorities to consider merging operations with larger peers ostensibly on the justifications of cost efficiencies and providing ‘better’ service.

In Part VI of the proposed amendments, Bill 139 enlarges the scope of what a conservation authority can prohibit by expanding its permitting procedures and potentially allowing blanket prohibitions. The appeals mechanisms have been reduced and made harder by the imposition of tight timelines and confining review either to the authority itself or the minister.

Most alarming is that under the enforcement and offences provisions, conservation authorities may now enter “any land situated in the authority’s area for the purposes of determining compliance…,” with its permits, prohibited activities/development, etc… The current Conservation Authorities Act limits warrantless entry to two provisions the second of which is only when obvious or “significant environmental damage,” is occurring and “entry is required to prevent or reduce the damage.”

A position articulated ad nauseam by Conservation Ontario, a private lobby group established by conservation authorities using public money to liaise with the province, is that many smaller authorities and municipalities cannot offer the same services or degree of assistance that larger authorities can. Bill 139 makes more than two dozen amendments to make it easier for authorities to consolidate and enlarge.

Ontario has failed in numerous governmental reorganizations involving ‘consolidation’ of local agencies into larger, multi-jurisdictional institutions that end up eroding local control and review. Smaller municipalities are beholden to the larger ones on boards where size equals the number of representatives on the board. Conservation authorities across the province have long had the opportunity to collaborate not only among themselves to pool and share resources on areas like planning and service delivery but also to collaborate with their constituent municipalities.

Of course, this has not happened on a large scale because conservation authorities want exclusive control and expansion of their funding and staffing.

The prevailing posture of conservation authorities and their apologists in Ontario for years has been that conservation effectively means leaving nature alone. Their concept of “management” means “do nothing,” and “stop everything.” Conservation authorities have repeatedly demonstrated an antagonistic view toward development and landowner rights. They further fail to understand that true conservation involves balance, collaboration, and dialogue. Balance is about working with citizens to integrate them into their watersheds and local habitat. Collaboration is about using consultation and strong stakeholder involvement to guide policies and ultimately statutes that reflect balance. Dialogue means listening and incorporating a merit based and diverse set of views and conclusions on each issue.

Not only do conservation authorities and municipalities fail to understand those three concepts of conservation, now Bill 139 protects them from even having to try.

Leith Coghlin is the managing director of EnPointe Development Incorporated, a London-based advocacy and public policy firm that represents individual citizens and private businesses exclusively.