Canada: To Conserve And Protect? Bill 229's Impact On Conservation Authorities

Ontario has 36 conservation authorities that act as community-based management agencies who undertake watershed-based programs to protect the community from natural hazards including flooding. As the name suggests, conservation authorities also conserve natural resources for economic, social, and environmental benefits.

On December 8, 2020, Bill 229 being the Protect, Support and Recover from COVID-19 Act (Budget Measures) 2020 received Royal Assent becoming law in Ontario. Amongst other changes beyond the scope of this article, Bill 229, through Schedule 6, significantly alters the powers of Conservation Authorities (“CAs”). The changes come off the heels of a fierce public debate where the CAs, the Association of Municipalities of Ontario, and other members of civil society argued that the changes would require CAs to contravene their mandate to protect people, infrastructure and the environment. The Ontario Home Builders' Association and numerous landowner groups supported those changes arguing the changes are necessary to ensure the CAs do not stray beyond their mandate.

Some of the most substantial changes include the ability of the Minister of Natural Resources and Forestry (the “Minister”) to override the jurisdiction of a CA over a permit decision, the creation of a scheme whereby permits must be granted by the CAs if enumerated criteria are met, new routes of appeal, and changes to the composition of the CA's board of directors. The details of some of the changes are outlined below.

Greater Power of the Minister

The greatest changes brought by Schedule 6 flow from the changes to Section 28 of the Conservation Authorities Act. Section 28 outlines prohibited activities and developments that, in the normal course, require a permit from the CA. The changes to Section 28 provides the Minister the power to determine permit applications as opposed to the CA.

New section 28.1.1 of the Conservation Authorities Act allows the Minister to order a CA not to issue a permit to engage in an activity that, without the permit, would be prohibited under section 28 of the Act. After making such an order the Minister may issue the permit instead of the CA.

New section 28.0.1 of the Conservation Authorities Act creates a new scheme whereby permits must be granted by the CAs after a ministerial zoning order has been made. This new section makes the approval of a permit mandatory on the CA and makes any conditions of the approval reviewable by the Minister. The Minister also has the power to vary the conditions of the approval – or remove the conditions altogether. The LPAT also has similar powers of review of the conditions put in place by the CAs.

Critics of the changes argue that applicants may simply seek to bypass local CAs and instead work to lobby the Minister instead. Moreover, others have argued that the amendments lack transparency as the Minister is not required to hold a hearing prior to making any decision. There is also no ability for the Conservation Authority to appeal any Ministerial decision. It is unclear what parameters the Minister would use to decide whether or not to issue a permit and/or whether or not they have access to appropriate technical staff to make a decision.

New Routes of Appeals

Applicants may now appeal a CAs decisions directly to the Local Planning Appeal Tribunal if the Minister has not reviewed the decision within 90 days. The LPAT is an independent administrative tribunal responsible for hearing appeals on a variety of contentious municipal matters. LPAT members are appointed by the Lieutenant Governor in Council and typically include lawyers, architects, planners and public administrators.

In addition to the foregoing, if the Conservation Authority fails to make a determination on an application within 120 days the Applicant may appeal directly to LPAT.

Previously, the Mining and Lands Tribunal was responsible for adjudicating these issues. Moving this jurisdiction to the LPAT has led to concerns that the already overburdened LPAT may cause further delays before an appeal maybe heard.

Composition of the Board of Directors

The new section 14 of the Conservation Authorities Act requires that at least 70% of the members of a CA board of directors are municipal councillors. The Minister may grant an exception to this. In addition, the Minister may appoint additional members to the board of directors to represent the “agricultural sector” – this member will have limited voting rights.

Conclusion

All things considered, the changes brought about by Schedule 6 allow for developers and other interested parties to potentially by-pass the application process by the province's CAs. Parties, including developers and CAs, should be aware of the changes including new routes for project approval and new rights of appeal. Gardiner Robert's Municipal and Land-Use Development team is experienced in working with Ontario's CAs and developers on conservation related matters. Our team would be happy to discuss any of the changes to the Conservation Authorities Act  and Planning Act, or any other land development matter.

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.