Canada: Bill 139 - Ignoring Conservation Authorities Will Cost You

Last Updated: June 20 2017
Article by Jonathan Wigley

The Ontario government introduced Bill 139 on May 30, 2017 called the Building Better Communities and Conserving Watersheds Act, 2017. This bill is an amalgam of changes to various pieces of legislation and in particular introduces the much heralded repeal of the Ontario Municipal Board Act and replacement with the Local Planning Appeal Tribunal. Appeal process changes under the Planning Act are fundamentally changed.

But Bill 139 also brings a number of changes to the Conservation Authorities Act. The following is an attempt to summarize those changes though much of the nuts and bolts of CA activity will be dealt with through regulations and of course those are not yet available. It must be noted that this Bill has only had first reading and changes may be made as it progresses to third reading and Royal Assent.

Enforcement and Development

One of the more fundamental changes under Bill 139 is in relation to the teeth of the CA Act. Presently CA's passed regulations under section 28 of the Act regulating development in areas such as river valleys, shorelines, hazard land, and wetlands. All of the CA regs are mostly identical as there is a supervisory regulation that prescribes what they are supposed to look like.

Under Bill 139, section 28 of the current act is repealed. But much of the old concepts are repeated under the new legislation though they will be expanded and explained in regulations yet to come. That is where the devil and the detail may become apparent.

  • New s.28 contains the prohibition that no person shall carry out activities or permit another to carry them out. Not much change there. This prohibition is subject to a revised but familiar permit system.
  • Prohibited activities include changing watercourses and interfering with wetlands, "development activities" in river valleys, shorelines, wetlands, and hazardous lands (all to be defined by regulation). Other areas can also be listed in a regulation as well.
  • Exempt activities are prescribed by regulation as are exempt areas and exempt projects under certain conditions. [One might expect say a highway project making it on to the exempt list].

Section 28.1 sets out the ability of the CA to grant permits. The form of the application will be prescribed by regulation.

The Authority can refuse the permit if:

  1. "the activity is likely to create conditions or circumstances that, in the event of a natural hazard, might jeopardize the health or safety of person or result" in property damage. It is not clear what "natural hazard" means. Presumably some sort of naturally occurring event like a hurricane or a bad rainstorm. "Natural hazard" does not seem to be the right wording.
  2. the activity affects the control of flooding, erosion, dynamic beaches or pollution or the conservation of land. Not much change there.
  3. any circumstances prescribed by regulation.

The "hearing" process is essentially the same as before. If a refusal is contemplated, a hearing must be provided.

An appeal lies to the Minister (as before and meaning the Mining and Lands Commissioner soon to be renamed the Mining and Lands Tribunal).

The regulations will prescribe how long a permit is valid.

The permit power can be delegated to a person or body but is subject to a regulation which of course we have not seen.

One significant part of Bill 139 is that it provides a new section 30 which greatly expands the enforcement capabilities of conservation officers.

Section 30.1 expands a conservation officer's power of entry. An officer may enter any land "for the purposes of determining compliance with subsection 28(1)". This is broad language. So, if an officer is suspicious that some sort of development activity is going on and which may be hidden behind a screen of trees and not visible from a road, it appears he/she may enter to determine compliance. There is a $10,000 fine for obstructing an officer from doing so.

What's even more interesting is that under section 30.1(4) the officer can inspect any "thing" that is relevant, conduct any test, take measurements, soil samples, water samples, vegetation, set up equipment, take photographs or any other records. He or she can even take an expert onto the property to assist. It is not at all clear how this might square with constitutional protections against unreasonable search and seizure and privacy rights under the Charter of Rights and Freedoms. Doubtless someone may try to argue the point.

No use of force is permitted and the officer cannot go into any buildings. The latter can be simply remedied by obtaining a search warrant. Warrantless search is permitted where the officer believes that evidence of the offence might disappear.

Conservation Officers are also being given "stop work" powers. Such orders can be served personally or by registered mail. The recipient has a right to argue the stop work order in a hearing before the Authority. Again there is an appeal to the Minister (read the Mining and Lands Commissioner). This power though will greatly support injunction applications if the offender does not stop.

Offence penalties (including breach of a stop work order) have increased dramatically from the puny $10,000 max fine under the current legislation. This was effectively a "licence" fee but no longer. Now individuals are subject to a $50,000 maximum, 3 months in jail or both (it used to be either) and up to $10,000 per day for every day the offence continues! Corporations are subject to a $1,000,000 maximum fine and up to $200,000 for every day the offence continues.

If the offending activity gave rise to a benefit to the defendant (for example, filling in a wetland so it could be built on), the amount of the monetary benefit can be added to the fine.

In addition to all of this, the court may make, in addition to a fine and jail sentence, a rehabilitation order requiring removal and repair or rehabilitation of the damage that results from or is in any way connected to the commission of the offence.

What has not changed is that if the work is not done, the Authority can go and complete the work and sue for the cost. That is essentially a useless remedy since the cost of the lawsuit is never entirely recoverable and usually takes an inordinate amount of time. Better if the cost was added to the tax roll and became a charge against the property.

Finance Matters

Sections 24-26 of the old CAA are repealed and new sections substituted but there is not that much change in substance.

Section 25 now allows project capital costs to be apportioned "in accordance with the regulations". An appeal lies to the Local Planning Appeal Tribunal.

Section 26 allows for the annual apportionment of operating costs. Apportionment of operating expenses is appealable to the Mining and Lands Tribunal.

Miscellaneous Matters

The objects of the Authority are slightly changed. Before, section 20 provided that the Authority's objects were "to establish and undertake...a program designed ...." Now the objects are "to provide....programs and services designed to further the conservation, restoration, development and management of natural resources other than gas, oil, coal and minerals". The scope of this change is not entirely clear but it may broaden Authority activity. Note though that there are several subsequent sections by which the Minister can list classes of programs and services, make certain programs mandatory, etc. Note that fees can only be charged now per the regulations to be passed. So for example Planning Act review services will likely be subject to some sort of regulation as to what can be charged.

Governance

Member terms may be up to 4 years now and any member is eligible to be reappointed. Members can be expressly replaced by the council of the participating municipality appointing the member.

Section 19.1 deals with procedural matters such as meeting bylaws etc. As before all of the Authority's powers can be delegated to an Executive Committee except certain specified matters. In particular, the Authority can require a "code of conduct" for the members and adopting conflict of interest guidelines.

Summary

Enforcement of environmental matters relating to conservation authority concerns is now truly going to have some teeth. A corporation that decides to fill in a wetland to create additional tableland upon which to build and then sell million dollar homes is going to find it a risky venture. The Authority will have prosecutorial teeth and penalties to match. 

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Jonathan Wigley
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions