1. ISSUE These comments are…

1. ISSUE

These comments are in reply to ERO 019-8320 Regulation detailing new Minister’s Permit and Review Powers under the Conservation Authorities Act.

2. DECLARATION

The approach proposed in this proposal does not rise to multiple tests of reasonability and fairness in comparison to other legislative frameworks in the province. The proposals represent flawed rationales and fail to correct existing problems with Section 28 permit processes respecting development in hazard lands.

3. BACKGROUND

The proposals ignore the fact that the overwhelming majority of conservation authorities (“CA” or “CAs”) in the province neither keep nor allocate funding toward qualified experts like engineers and geo-technical experts on staff. Only few, select larger authorities do. When applicants retain engineers and other qualified experts to support their applications, CAs have a long track record of disregarding or rejecting such expert opinions on the guise of mitigating supposed and unsupported ‘risk(s).’

Problem begins with the Conservations Authorities Act

The Conservation Authorities Act, R.S.O. 1990 (the “CA Act”) is far too permissive and affords CAs arbitrary and questionable degrees of discretion in assessing Section 28 permits on development in hazard lands.

As the regulating authority, CAs do not keep defensible, clear mapping along with other scientific determinations based on ground and hazard evaluations that are accurate and current. All onus is placed on applicants to satisfy two tests: often where the ‘standard’ or ‘standards’ are either archaic or in most cases do not exist.

CA staff exercise unlimited discretionary powers to subject applicants to expensive professional determinations, peer-reviews, and inputs. Often, none of these CA-impositions are justified under the CA Act or in the operational policies delegated to each CA.

Most CAs deny any development in hazard lands whether new or to repair existing

Ontario CAs operate on an effective “expropriation by stealth,” posture, whereby existing and new development within hazard lands are effectively prohibited. The current and proposed regulations do not establish standards based on expert conclusions that lead to approval(s).

CAs, and specifically smaller CAs like, inter alia: the Essex Region Conservation Authority (“ERCA”) assess and issue Section 28 permits in hazard lands on completely arbitrary grounds. It does so with zero consistency.

These proposals don’t solve existing issues; most cannot afford the process

Many applicants cannot afford the requisite costs to support a Section 28 applications. This includes applications simply to rebuild or remodel existing developments in regulated lands where they exist. This includes over 7,000 properties in the ERCA regulated areas in the Municipality of Lakeshore. Both ERCA and the municipality blame one another for the inability of thousands of property owners to secure permissions for their lands. This reality is endemic across all lakeshore municipalities and those with extensive inland waterways that are prone to erosion, flooding, and other floodplain considerations.

If residents cannot rebuild or develop new, scientifically engineered structures that do not aggravate the impacts of erosion, slope stability, dynamic beach hazard, flooding, etc..., as declared in the CA Act and existing regulations, denial of applications are nothing short of expropriation.

Ontario only permits such discretion without expertise in conservation matters

The Drainage Act requires a drainage engineer to make determinations. Under the Planning Act, planners and engineers must provide rationales. Under the Building Code, only qualified professionals can stipulate. But in the CA 'ecosystem' unqualified and untrained 'staff' can make determinations without professional basis.

This situation is unfair, impacts tens of thousands of Ontario residents, without reasonable prospect(s) of relief afforded under these proposals.

4. COMMENTS ON SPECIFIC PROPOSALS

These proposals are also entirely inconsistent with the government’s reform efforts begun with Schedule 6 of Bill 229 passed in December 2020.

As a result, my comments are directed as follows:

The Minister may issue an order directing a conservation authority not to issue a permit to a specific individual to engage in a specified activity, or to persons who may wish to engage in a certain type or class of activity, that would be prohibited under section 28 without a permit.

The proposal above fails to establish on what tests and standard of review the Minister may rely on directing a CA not to issue a permit. The Ministry of Natural Resources and Forestry does not currently feature an expert branch or section with suitable capacity to examine individual applications. The proposal fails to acknowledge whether such Ministry capacity will be established. This presumes that the Ministry will be overly reliant on CA opinion and adjudications regardless of how absent such determinations may be of defensible engineering and/or scientific expert opinion(s)

The Minister’s decision to issue an order is discretionary, and it may be issued either before or after an application for a permit has been submitted to the relevant conservation authority.

The proposal again fails to enumerate under what circumstances or on what type(s) of application(s) the Minister may exercise such discretion. The purpose of laws and regulations is to qualify clear, fair, and reasonable standards for consistent application. Discretion is not so broad as to allow ‘exigent,’ or ‘selective’ discretion without basis in either law or regulation. For these reasons, this specific proposal is incomplete and could become problematic if subject to judicial review or via applications of inductive relief in Superior Court.

Notice of any order must be provided to affected conservation authorities, any person who applied for the permit in question prior to the order and be posted on the Environmental Registry of Ontario (ERO) within 30-days. 

This contradicts the government’s long-expressed views of reducing red-tape, waste, and duplication. The current Section 28 permit process across almost all CAs, involves the following:

Pre-consultation;
Application preparation;
Submission;
Consultation and discretionary circulation for comments to other agencies by the CA;
Peer-reviews may be requested;
Permit approved, approved with conditions, or rejected;
In cases of appeals of either approved permit with conditions or a rejected applications, appeals must first be heard by the very same CA Board that likely endorsed staff determinations on permit conditions or application rejections;
Appeals may then escalate to CA boards a second time with little prospect of modification or reconsideration;
Applicants can then proceed to the Ontario Land Tribunal or appeal to the Minister;
The latter would presume a further level of review.

In all instances, unlike in recent changes to the Planning Act and the Municipal Act, timelines are not guaranteed, applicants have no reasonable quantum of costs, and CAs are not obliged to conform to any reasonable limits on time and costs.

This proposal does not fix the original series of problematic issues. Instead the propsal introduces another level of non-specific review and potentially limitless timelines.

If an order made, the Minister has the power to issue a permit in place of the conservation authority. When making a permitting decision, the Minister is required to satisfy the same criteria concerning natural hazards and public safety that are considered by conservation authorities. This includes whether the activity is likely to affect the control of flooding, erosion, dynamic beaches or unstable soil or bedrock. It also must consider whether the activity is likely to create conditions or circumstances that, in the event of a natural hazard, might jeopardize the health or safety of persons or result in the damage or destruction of property.

This language declares that the Minister must effectively support the determinations of the CA. Not qualified, quantified expert opinion. As the Ministry possesses no additional, independent, and expertise to review and recommend determinations to the Minister, unknown Ministry staff will simply evaluate whether the CAs behaviour, process, and reasons corresponded with their own (in many cases absent) criteria. This fails to enhance administrative review and procedural fairness, exacerbates costs and timelines, and exposes original applicants to catastrophic loses.

The Minister may refuse the permit or issue a permit subject to such conditions as the Minister determines are appropriate.

As the ‘conditions’ are not enumerated where the Minister may exercise discretion that goes against CA ‘determinations’ on “the control of flooding, erosion, dynamic beaches or unstable soil or bedrock. It also must consider whether the activity is likely to create conditions or circumstances that, in the event of a natural hazard, might jeopardize the health or safety of persons or result in the damage or destruction of property.”

5. CONCLUSION AND RECOMMENDATION

These proposals amount to nothing more than a regulatory backslide that favour conservation authorities and their unqualified posture toward hazard lands against the defensible positions supported by expert analysis to the benefit of property owners.

I am a taxpaying, lakeshore property owner who has the inherent right by zoning and all applicable laws of the province to use and enjoy my property within its permitted uses and where all standards are supported by expert in the design, application, review, and development processes.

I have been prevented from any modicum of administrative fairness and reasonable procedural review. My own circumstances are now in their third year on a Section 28 permit.

The proposals in this ERO posting are irresponsible, add a further level of red-tape, increase costs on citizens, fail to establish guardrails of standards and time, and solely bolster the trend of arbitrary, indefensible, and no-risk discretion abused by CAs.

I recommend these proposals be immediately withdrawn and hazard land permitting authority be subject entirely to the determinations of qualified experts.

Significant numbers of Ontarians are impacted by these proposals. Many are broadly supportive of government reforms to return conservation authorities to return them to their original mandates of flood prevention and flood infrastructure management. These propositions are inconsistent with these goals.

We trust the government will reevaluate and amend these proposals and adopt the voluminous submissions made throughout the past four years to successive Ministers of Environment, Conservation, and Parks (2020-22) and the Ministry of Natural Resources and Forestry (MNRF) regarding reassignment of permitting responsibility under the CA Act to independent, objective, and qualified experts.

Beyond my own application, the current government’s housing objectives will be aggravated and frustrated by proposals such as these if ultimately proclaimed by the Minister.