Improving Ontario…

Improving Ontario Conservation Authorities

Conservation Authorities Core Mandate

Thank you for the opportunity to comment on this very important topic and the initiative of the Conservative government to review the priorities of CAs

We have been following the submissions of a recognized and published legal researcher and author and consider them to be honest and accurate . Part of the core mandate she discussed was the responsibility of the CAs to assist the farm property owners in draining their fields for food production. This was largely accomplished by helping to prevent flooding of public lands which then spilled over onto private properties.

This submission is about how far the CAs have strayed from their original core mandate to what appears to now be their main objective. That objective being : to acquire rights, title or an interest registered on ever more private property in the form of a “ Conservation Agreement “ easement that is binding “in perpetuity “.

The following URL attachment is a “Greenland Securement Strategy “ agreement between Halton Region and their local Conservation Authority in effect since 2009 under the previous Liberal Government policies. There are many more of these Agreements throughout the province which may be differently worded but of the same basic template and intent.

https://www.halton.ca/Repository/Greenlands-Securement-Strategy

This is a skilfully written document which, when considered in its whole, contains a legally questionable strategy.
Here are some of excerpts pertaining to the Strategy document attached.

(1). page 8.  2.0 Vision and Key principles, last paragraph-….

“in particular, it is the policy of the Region to:…..obtain, through the development approval process and as permitted by legislation, parts of the Greenland System and adjacent areas……

(2). page 9.  2.2  Key Principles (excerpt).  
“The prime objective of the program is to secure ownership of lands…….including farmland. ….Land securement refers to the acquisition of land or interest in land, through a variety of methods including, but not limited to conservation agreements’….

(3). page 11.  3.0  Eligible Lands.  Last paragraph, primary criteria through to page 12, including secondary criteria.  (This could include almost any rural property.)

(4). page 14.  4.1.1  Fee Simple.  Last paragraph ....recognizes 'Fee Simple’ is total control of the….. rights of the property.

(5). page 15.  4.1.2  Conservation Agreements =' Conservation easements, are legally binding agreements, registered on title and running in perpetuity.’

(6). page 19.  4.2  Land Protection Tools
                4.21 Planning Process …….’This process is reactionary as it only occurs once a landowner makes an application (for permit),  In order to receive approvals, (i.e. permit) the proponent (i.e. landowner) must convey land or a conservation agreement for conservation or parkland.’..

(7). page 30.  6.2  Proposed Program Implementation.
page 31.         Landowner contact includes:……d. Drop-in on properties ….that are ecologically significant to engage the landowner in securement and/or stewardship programs.  (my opinion-this may or may not be taken out of context as a standalone suggestion, separate from suggestions a-g. This may lead a conservation officer to infer that he is encouraged to randomly approach a property owner on his property without regard for trespass concerns.)

(8). page 34.  6.4  Timelines and Expectations     ‘The region will target landowner contact of 250 landowners…..
                7.0  Conclusions and Recommendations …’By strategically targeting specific landowners…….in the securement of ecologically significant natural areas and farmland …..’

(9). page 47  Appendix 2   Conservation Agreements   ….be registered on title and a binding on future purchasers….

Our Observations and thoughts on the process are as follows:

Conservation authorities dictate conservation zoning changes to the municipality.  The zoning change proposals are supposed to be made public by posting on their web site and local newspapers.  The property owner is not personally notified of the hearings and impending change to his property.  Usually nobody objects as they are unaware of the proposed meetings. Consequently the zoning is passed under “implied consent” - for lack of objections.  
In summation, the CAs wish to acquire land through free donations, easements on title , or the least desirable option being to purchase at fair market value.
Anything that will devalue the property or make it less desirable will be a benefit to their eventual acquisition.

scenario 1.  Property owner activity doesn’t change but the zoning change may put the property owner into a violation.  As witnessed in a recent court case, a great deal of questionable pressure is exerted by the CA to find a “resolution”, i.e. conservation agreement .

scenario 2.  A property owner does apply for a permit.  The municipality refers the property owner to the CA for approval before the municipality will even consider the application.  The CA apparently try to make an “agreement” before they will grant an approval.  These agreements target property rights.  

The CA agreements are registered on the property deed “ in perpetuity “ and allow CA personnel and anyone accompanying or assisting them to come onto your property at any time to ensure that you are abiding by the rules of the “Agreement”. In other words, the private property is no longer private as the CA have established a permanent easement.
Part of the process is that the property owner must himself register the “Agreement “ on his title to demonstrate that the “Agreement “ was consensual - for court purposes.
Being registered on title means that the CA would then have a “vested “ interest in the property and can now claim a “right” to be included in any alterations thereto - as in the term “ having a right, title, or interest “.

Actual Example

In a recent court case, the farm owner was charged with “interfering with a wetland “ and failing to obtain a permit. The initial charge was for 9 offences at $10,000 each and removal of any added fill in order to remediate the property. At one point during the lengthy court case - when the prosecution was apparently concerned about the outcome - the Conservation Authorities offered a plea agreement. In exchange for a guilty plea, the farm owner would :
(1) pay a single $500 fine,
(2) be allowed to keep the fill in place as it apparently did not affect the wetland and lastly -
(3) enter into a Conservation Agreement -(which was likely the main objective of the prosecution from the beginning.

The final outcome of the case was a guilty verdict that the Justice of the Peace delivered , but probably did not write without considerable consultations with senior judiciary. The sentence included an order that the property owner must enter into a Conservation “Agreement “ and place it on their title within 30 days. When the farm owner refused to do this until after an appeal was pursued - the prosecution filed the “Agreement “ on the farmers title prior to the expiration of the 30 days, and contrary to objections from the property owner.
The question arises - How can a Justice of the Peace have the authority to impose an easement on a private property as part of a sentence?
This incident is a fine example of how far the CAs have strayed from their core mandate.... to assist property owners in draining their fields to make their land more productive for farming.

During the course of this trial, the defence referred to the permit is during process as amounting to extortion.

Law Dictionary Definition

Extortion Definition:
Forcing a person to give up property in a thing through the use of violence, fear or under pretense of authority.

In R v ....., Chief Justice ..... of Canada's Supreme Court wrote, in 1999:
Extortion criminalizes intimidation and interference with freedom of choice. It punishes those who, through threats, accusations, menaces, or violence induce or attempt to induce their victims into doing anything or causing anything to be done. Threats, accusations, menaces and violence clearly intimidate. When threats are coupled with demands, there is an inducement to accede to the demands. This interferes with the victim's freedom of choice, as the victim may be coerced into doing something he or she would otherwise have chosen not to do."

If the CAs methods of land securement boarder on extortion, then the participation of the Municipalities might qualify the “Strategy “ as a conspiracy to commit fraud through extortion.

At the very least, it could be considered to be an expropriation of property rights and uses without compensation. There have been costly consequences to Municipalities for these constructive or disguised expropriations as confirmed by the Supreme Court of Canada in .....vs St Johns
High court ruling will leave St. John's on hook for expropriation costs | CBC News
https://www.cbc.ca/news/canada/newfoundland-labrador/expropriation-lync…

And what is the source of this Conversation Authority initiative?

Perhaps a recent publication from the Huffington Post - 05 May 2019 is worth considering.
https://www.huffingtonpost.ca/2019/05/03/gerald-butts-trudeau-snc-laval…

Excerpt
OTTAWA —
"The proudest day that I've had in politics was, ironically, last year during the Ontario provincial election, when it was revealed that the... leader of the Progressive Conservative Party and now premier had been recorded promising prominent developers in the Greater Toronto Area that he would open up the Greenbelt for development. And once it became revealed that that promise had been made, he had to walk it back by supper time that day."
In politics, he said, you have to try to stay focused on things that are going to be enduring.
"That may not be apparent when you're ... taking two million acres of farmland and sensitive ecological land [and] making sure they couldn't be developed." That was very contentious, he said, "but I think it's gonna be very difficult to change...”

Suggestions - Opinion

(1) The only fair method for government to acquire private property would be to purchase it at fair market value - as and when it comes up for sale
(2) The government, as the new owner, could designate/ zone / restrict / or encumber the property title at will and then release it for sale as desired, at the resulting market value
(3). The government could sell real estate inventories as an efficient way to reduce the huge inherited provincial debt
(4). Real Estate that is unencumbered by easements and restrictive Zoning will retain a much higher taxable market value

Returning Conservation Authorities to their Core Mandate

The forgoing submission was to show how far CAs have strayed from their Core Mandate. The following are suggested remedies.
(1) Remove CAs from enforcement thereby relieving themselves and government of costly litigations.
(2) Remove CAs from the permitting process. This would save the redundant time, effort, cost, and delay of a function that is competently performed by local Municipal planning staffs. As a result, the CAs would be spared the appearance of acting in a fraudulent manner to obtain easements on private property.
(3). Remove the claimed mandate of “responsibility for public safety” over private property.
(4) Return CAs to their original core mandate which would focus on flood prevention of public lands. This would better serve the public interest and benefit private property owners impacted by spillover from public waterways, ditches, creeks, rivers and lakes.

There is currently a mounting concern about flooding of private properties due to Climate Change. It would be beneficial to the CAs if they were to be seen as focussing all their resources on that portion of their core mandate. An increase of support for both the CAs and the present government would be likely.

Again, thank you for the opportunity comment on this issue.
Should the veracity of any statements be in question - please contact us for details that may have been unacceptable under the terms of this written submission.

Regards