The Benefit and Cost of Wetlands by John Swartzentrouber

Published July 1, 2018

Governments and quasi-governments such as Conservation Authorities have done a thorough job of informing the public of the importance of protecting wetlands. They have done an even better job of restricting the development of not only these wetlands, but also immense acreages abutting the wetlands. Frequently, the buffer zones can preclude unimpeded development of much of a landowner’s farmland. Yet, many farmers remain unaware of this fact until they discover a minefield of regulatory surprises upon undertaking a development (i.e. – new building) or improvement (drainage). And we thought picking stones was bad…Unfortunately governments and Conservation Authorities have been known to take a very imperialistic and adversarial approach to enforcing their policies.

When governments develop policy (e.g. – P.P.S.) and transform it into regulation (Zoning, Municipal bylaws), they are effectively turning most private property into public property without having to assume ownership and/or compensate the private owner. However, in a recent property rights dispute, the judge called land designations “a subtle form of expropriation”, recognizing the sneaky nature of creating and arbitrarily imposing regulations, zonings and designations on private property. This is why property owners need to be attentive and speak very strongly to the creation of instruments such as Official Plans.

A recent, most instructive and legally profound case which demonstrates the enduring significance of property rights is “Lynch vs. St. Johns (2016)”. Therein, the Supreme Court found that the City of St. Johns (NFLD) did indeed owe the Lynch family expropriation costs after designating the Lynch’s city’s-edge property as wetland, denying Lynch’s right to develop it. The court did not dispute the validity of the city’s claim – the city water supply was dependent on this land remaining “unused in its natural state”, but further, found that the Lynch family was not responsible to provide a public benefit at their personal cost or expense.

The take-home from this case is very clear – as a result of their aggressive designations imposed on private property, the Counties have racked up an immense rental or expropriations bill with the farmers and property owners upon whom they have imposed frequently-contested land designations. It will take only one high-profile case to trigger the bill eventually due. Perhaps the “County” will be educated and convinced by case law, if not by an adverse expert opinion.

According to “Lynch” and also the province and the county’s own published material, farmers and property owners have been providing a valuable service to the community – for free up until now. So, what price will we put on wetlands? How many acres does your farm have under county designation? Who will be first to hand in the bill? You may want to do your own research rather than consult a lawyer who is willing to work for either side of a case.

Such a case may be triggered by a property owner realizing that the county-imposed designations or zonings on his/her property prevent a desired development that would be otherwise completely normal and contributory to lawful personal enjoyment and benefit, just like the Lynch’s.

Is the County prepared for this inevitability? Their bill will be enormous going forward, and even higher if past benefits are considered. Perhaps they should have paid closer attention to the claims of landowners who have repeatedly reminded them that “if you don’t own it, you can’t zone it”.

And of further interest will be the personal torts (civil action against an individual) that may result for regulators and planners who insisted on imposing their designs on private property owners even after being repeatedly reminded that they are overstepping their lawful powers. These protestations from private owners are preserved in the minutes of municipal council meetings, county council meetings and written statements made to the Province of Ontario.

The basis of Western Law has always been for the mutual protection, benefit and preservation of all members of society. The various levels of government have established and documented a sloppy track record of ignoring Law and blundering forward over private property rights. This is not the Soviet Union. Or is it? The piper is at the door and wants to be paid. Just like the Lynch’s.

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