RED TAPE REDUCTION ACT, 1998 LOI DE 1998 VISANT À RÉDUIRE LES FORMALITÉS ADMINISTRATIVES
HALTON REGION FEDERATION OF AGRICULTURE
ONTARIO PROPERTY AND ENVIRONMENTAL RIGHTS ALLIANCE
CANADIAN BAR ASSOCIATION -- ONTARIO
CONTENTS
Monday 5 October 1998
Red Tape Reduction Act, 1998, Bill 25, Mr Tsubouchi /
Loi de 1998 visant à réduire les formalités administratives,
projet de loi 25, M. Tsubouchi
Conservation Ontario
Mr Jim Anderson
Halton Region Federation of Agriculture
Mr James Fisher
Ontario Property and Environmental Rights Alliance
Mr Bob Fowler
Mr Bob Woolham
Canadian Bar Association -- Ontario
Mr Glen Davis
Ms Margaret Rintoul
Mr James Parkes
STANDING COMMITTEE ON ADMINISTRATION OF JUSTICE
Chair / Président
Mr Jerry J. Ouellette (Oshawa PC)
Vice-Chair / Vice-Président
Mr E.J. Douglas Rollins (Quinte PC)
Mr Dave Boushy (Sarnia PC)
Mr Bruce Crozier (Essex South / -Sud L)
Mr Peter Kormos (Welland-Thorold ND)
Mr Gerry Martiniuk (Cambridge PC)
Mr Jerry J. Ouellette (Oshawa PC)
Mr David Ramsay (Timiskaming L)
Mr E.J. Douglas Rollins (Quinte PC)
Mr R. Gary Stewart (Peterborough PC)
Mr Bob Wood (London South / -Sud PC)
Substitutions / Membres remplaçants
Mr Ted Chudleigh (Halton North / -Nord PC)
Mr Mike Colle (Oakwood L)
Mr Tim Hudak (Niagara South / -Sud PC)
Mrs Lillian Ross (Hamilton West / -Ouest PC)
Mr Bill Vankoughnet (Frontenac-Addington PC)
Clerk / Greffier
Mr Douglas Arnott
Staff / Personnel
Mr Avrum Fenson, research officer, Legislative Research Service
The committee met at 1700 in committee room 2.
RED TAPE REDUCTION ACT, 1998 LOI DE 1998 VISANT À RÉDUIRE LES FORMALITÉS ADMINISTRATIVES
Consideration of Bill 25, An Act to reduce red tape by amending or repealing certain Acts and by enacting two new Acts / Projet de loi 25, Loi visant à réduire les formalités administratives en modifiant ou abrogeant certaines lois et en édictant deux nouvelles lois.
CONSERVATION ONTARIO
The Chair (Mr Jerry Ouellette): I'll ask the first presenter, the Association of Conservation Authorities of Ontario, to come forward. If you or your representatives could identify yourselves for Hansard, we would appreciate it. Just so you know, there's a total time allocated of 15 minutes. At the conclusion of your presentation, you may have the remainder of the 15 minutes divided equally between the three caucuses. Thank you for coming today. You may begin.
Mr Jim Anderson: My name is Jim Anderson. I'm the general manager of Conservation Ontario, formerly the Association of Conservation Authorities of Ontario, as listed on your agenda. Thank you for the opportunity to address your committee.
Ontario's conservation authorities have had a long history of discussing and debating red tape reduction measures with the government of Ontario. In 1994 we had the opportunity to initiate discussions with the government on a document we entitled Blueprint for Success. One of the major proposals in that paper was the reform of the water management regulatory system in Ontario. We suggested the system was plagued with overlap, duplication and red tape, and we recommended a one-window service delivery model for the delivery of regulatory services related to water.
After the formation of the Red Tape Commission and following up on these discussions, we made specific recommendations to that commission. The highlights of our first submission to the commission were: There is an established need for government involvement in resource-management-related regulations as an integrator-coordinator, if not more; responsibly administered local regulations provide more flexibility than other processes, yet offer the needed level of protection; there is a need to reduce costs and improve delivery of all resource-management regulations, including ours; the most suitable jurisdiction for delivering water-related regulations is the watershed.
We believe this can be accomplished through an integrated piece of legislation combining a number of related water-regulating pieces of legislation. Recognizing the challenge that this is a huge undertaking, in the shorter term we suggested that allowing the delegation of approval of each of these pieces of legislation to one agency would aid in achieving the desired results. In order to administer a comprehensive approach, existing pieces of legislation needed to be clarified, including our own.
The results of the Red Tape Commission's deliberations were contained in Bill 119. This bill reflected a strong orientation to reduce red tape. The major improvements as they related to us were the creation of a generic regulation model which would see the many conservation authority regulations replaced by one and the elimination of the tedious process of executive council approval of specific conservation authority regulations, all of which were the same; the advancement of the concept by which related water regulatory processes contained in legislation could be delegated and, through this orderly process, a one-window approach could be brought into being.
The bill was a major move forward, and because of this much discussion took place on the implementation details associated with it. Conservation authorities entered into discussions with the province on implementation improvements to that bill on the understanding that the policy concepts outlined in it would be protected. Because of the significant amount of input and discussion we had with the previous red tape bill, much of our discussion, we believe, is reflected in this, the latest bill. Our comments relate more to an improvement in implementation.
We do not offer any policy alternatives in our submission to you. However, the people at the end of the customer delivery chain -- the customer, the public -- don't necessarily distinguish between a policy-generated delay versus one associated with implementation. We would point out that we have had discussions with provincial staff and are hopeful that these suggested improvements will be considered.
The improvements we offer -- and we relate them all to section 28; for those of you who don't know, that is the section that governs flood plain regulations -- are as follows:
Subsection (7) requires that authorities' regulations must conform with the generic regulation of cabinet. The problem with conformity is that it is a very loose term and invites a challenge based on comparative interpretations of the generic regulation versus that of the authority in question. An example of this is the arguments that go on before the Ontario Municipal Board concerning the conformity between a zoning bylaw and an official plan.
The first defence of an accused will be that the regulation is invalid by reason of lack of conformity. That conformity does not have to be related to the particular offence or the area involved or the resource threatened; it can be any area. It can be a very mild lack of conformity. Because somewhere else in the bill the bill requires the minister to approve a regulation for it to be valid, the minister can achieve conformity through the issuance of his or her approval only if in his or her opinion a proposed regulation does conform.
We believe the issue of conformity, while important and necessary, can be handled in a fashion that does not invite unnecessary delay in decision. It's our recommendation that either this section be removed, because conformity can be achieved through another means, or amended to add "the minister's approval" on the tail end.
Subsection (3): Conditional permissions under this subsection are a welcome addition to the authority's capabilities and will improve and streamline the process. This improvement will allow conservation authorities to place conditions on an approval and cease the process of requiring applicants to reapply in a fashion that they might approve.
Subsection (l)(a): This subsection does not contain the requiring permission clause that subsections (l)(b) and (c) do. While the conservation authorities have the right to regulate, they do not have the right in this instance to require permission. The conservation authority can pass a regulation and hope that people follow it; if they do not, then prosecution follows.
It is our recommendation that this bill could be improved if the power-to-require-permission clause were added to this subsection. It will clearly identify a potential problem early, both for the conservation authority and the applicant.
Subsection (8): The transition provisions in the regulation suggest that the authority has two years to bring its regulation in line. This may be too little time. First, given that the act now restricts the areas to be regulated, could an authority regulation, which at the present time regulates areas arguably not within the list, be said to be valid? The provision of subsection (21) seems to suggest that the old regulation would be valid, at least for the two-year period. However, it also says that the old regulation would only be lawful under minister's approval. The net result, we think, is that one might go around in a circle on this one.
It is suggested that the transition provisions be reworded to make it clear that the regulation is a valid and enforceable regulation in the transition under the act.
Second, two years may not be sufficient time within which to organize new mapping and new regulations. The timing of the introduction of the generic regulation may afford us some additional time. It is our recommendation that the transition time to convert our present regulation to the new model be extended to three years.
Subsection (12): Delegation, notice and hearings to us seem a bit confusing. Effectively, subsection 28(12) provides that notice has to be given to all applicants in all cases except where permission is to be granted without conditions. The hearing must be before the authority or the executive committee. This section appears inconsistent with other sections which permit delegation of any powers down to an individual or group. It is our recommendation that the matters of delegation be clarified.
Finally, subsection (17): This subsection should be reworded so that the words "at that person's expense" modify both (a) and (b). Also, the section should give the court more flexibility than simply removal of a building. Site rehabilitation is as important as the actual removal of the building in question. Removal of a building on a side slope may remove the danger, but the slope may, without more rehabilitation, remain unstable. The rehabilitation of the slope may be necessary.
We have also, in our report to you, provided a series of specific legal-type recommendations to clarify subsections (17) to (19). I propose that the committee not read them. I offer them to you as part of the record.
Finally, because of our long-term involvement and interest in red tape reduction, we would like to acknowledge the amount of input and discussion we have had on improvements to our act over the last four years. We would also like to thank this committee for the opportunity to provide input to these, your latest deliberations on red tape reduction.
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The Chair: Thank you very much. That affords us approximately a minute and a half per caucus. We begin with the third party.
Mr Peter Kormos (Welland-Thorold): That's not a whole lot of time, Chair.
One of the subsections you referred to was 28(1)(a), the permission requirement. You're suggesting that if people were required to obtain permission prior to doing any of the things otherwise prohibited, that would -- expand on that, please. I haven't got a whole lot of time. If people are going to be scofflaws, they're not going to seek permission. Right?
Mr Anderson: Basically, the process of requiring permission requires that the authority and the applicant sit down and discuss the merits of the situation and reach either resolution or understand that they do not. Now that intermediate process of requiring permission is not there. Basically we have a regulation. If you end up violating that regulation, we have to move into some more legalistic determinations.
Mr Kormos: Some folks -- not me -- might argue that that's additional red tape, that the process of seeking permission could well involve a fee, but nonetheless that it contributes to red tape. I'm inclined to agree with you. How are you going to respond to those critics, though?
Mr Anderson: The secret to removing red tape, in our belief, is to communicate early in the process, upfront the process. We're in the business of resource protection; that's the purpose of these things. We'd like to communicate with applicants as soon as possible in the process, before they get into any form of commitment. By the time you get them, after they've committed a violation, they've spent money and they've got their plans set and committed. That's too late in the process for us.
Mr Kormos: I think it's a good proposal.
The Chair: We now move to the government members.
Mr Ted Chudleigh (Halton North): Very briefly, the conservation authorities in Ontario have undergone a significant number of changes in the last four or five years, and I think it brought their regulations more into tune with each other. There was a large variance in how some of the regulations were implemented across the province, and I congratulate you on getting those things coming together. Certainly they deal a little more closely now with municipalities than they have in the past.
Much along the same lines as Mr Kormos's question, I was wondering how the applications of the bylaws of a given municipality, specifically perhaps around the trespass or access-to-private-property aspects, vary from what conservation authority officers might find themselves having to do in a similar circumstance. Does it vary greatly?
Mr Anderson: My sense is that many authorities in the province have the power to inspect for the purposes of enforcing regulation, but I know of no collective process by which they set guideline standards and processes in place for the undertaking of that type of an activity. So they act on their own in that regard and design their own community-based policies regarding that.
Mr Chudleigh: Then are conservation authorities controlled or made similar by Conservation Ontario, or does each conservation authority set its own standards in that area as well?
Mr Anderson: At this time, each conservation authority sets its own standards.
The Chair: We now move to the official opposition; Mr Crozier.
Mr Bruce Crozier (Essex South): I just want to comment -- and thank you for your presentation today -- that Ken Schmidt from the region conservation authority in Essex county has kept me apprised right from the Blueprint for Success on through this process, and certainly we'll have a good look at your presentation with respect to some amendments that might be proposed.
Mr Mike Colle (Oakwood): I just have one brief question. In your last point on page 2 you say that "responsibly administered local regulations provide more flexibility than other processes." Talking about local flexibility -- I know this government likes the cookie-cutter approach, one size fits all across the province -- is there any room for individual decisions made by individual conservation authorities that meet local needs? Are they being eroded? No pun intended. Is there room for locally made decisions that fit that local conservation authority or that area?
Mr Anderson: Quite directly, while the act has changed a lot, it's still the local board of directors or its executive committee that must finally make the decision on an applicant regarding the denial of a permit. So at least the applicant has the opportunity to discuss many times the application of a regulation at the community level, including the board of directors of the authority. That is still contained in the new legislation, and that has been perhaps the reason why we feel so strongly that local regulations have flexibility but yet do offer the protection that they were designed for.
The Chair: Thank you very much for your presentation today. We very much appreciate your coming forward.
HALTON REGION FEDERATION OF AGRICULTURE
The Chair: We call the next presenters forward; if the Halton Region Federation of Agriculture could come forward.
Mr James Fisher: Members of the committee, good afternoon. My name is James Fisher. I'm with the Halton Region Federation of Agriculture. We're here today to deal specifically with Bill 25 and the section concerning the Conservation Authorities Act changes in the Ministry of Natural Resources part of the bill.
The Halton Region Federation of Agriculture represents about 450 farms in Halton. We are affiliated with the OFA, the Ontario Federation of Agriculture, which will also be making its own presentation. Our members, though, were very concerned that our voice be heard.
We have put together a package here, which I believe is in front of you. It has "Halton Region Federation of Agriculture" on top of it. I'd just like to explain it briefly to you. There's a cover letter on top. The next section is the changes we've requested to this particular part of the bill; I'll go over those in a few minutes. If you don't read anything after that, it's probably all right. The next section is some background notes that we've made in preparation, in studying this particular aspect. I would just point out that the numbers on the side correspond to the numbers in the changes of your draft of the bill. The items with the little dash in front of them are information that has been told to us or that we've derived from literature. The items with the stars beside them are our group's initial comments and concerns. The next section is for reference, and it is a direct copy of the changes to this part of the bill, the Conservation Authorities Act part of the bill. There's a copy of the current act, the relevant sections, which is good for your files, will make sure they're nice and fat, if they're not already.
The last item we included is an initiative that the Halton farmers took upon themselves two years back to develop our own statement of landowners' rights. We did this with many meetings, over a period of almost two years, where we consulted extensively with our farm membership to try to decide just what we thought our landowners' rights were and should be, and of course it got into many discussions about what good government is and what's fair and what's unfair. We include that because it is the basis of our objections. We're here because we believe in good government, not because we are looking to develop or undevelop, depending on your definition of development. We're very concerned with conservation. Our group, farmers in Halton, were the original founders of the local conservation authorities, and we still believe the conservation authorities have a role to play in today's world.
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However, conservation, as I'm sure you're all aware, is a difficult thing to regulate. It's hard to define what good conservation is. There are generally financial consequences to it. I think there is evidence around the world that centralized planning doesn't work for conservation. I'd like to ask you all to think for just a second, what agency, government ministry, advocacy group, whatever, does the most for conservation in Ontario?
Mr Crozier: I know the answer to that.
Mr Fisher: You know the answer to that. Good.
Mr Crozier: Farmers.
Mr Fisher: I wasn't including the landowners. Certainly it is the landowners who ultimately do the conservation, but I'm going to suggest to you today, and hopefully not put my foot in my mouth, that the Ministry of Agriculture and Food has achieved the most in the way of conservation in Ontario today, not with regulation but with developing programs, researching ideas and taking them to the point where they're economically feasible to implement -- crops that produce more, no-till planters, grass waterways. These people have taken it to the step where it's actually economical to implement, and it's not done with regulation. I'd like you to keep that in the back of your minds as we discuss things, because ultimately the conservation will be done by the landowner, or at least the financial aspect of it covered by him.
I'd like to touch just briefly on the changes we have requested in the second section of the handout we have given you. We have asked for changes in four areas. This is not to say that farmers are ever completely happy with anything or the rest of it, but we have highlighted four areas that we think need significant change. We would encourage, I might add, a full review of the conservation act, especially if, as the past speaker indicated, you are looking at a redistribution of who controls water in the province and such things. We would like to be very involved with that.
The first change we have requested is that the full authority hear appeals under section 28. Committee level, by all means, for the applications, but in our view the full authority should hear the appeals.
The second section we've identified, and we have suggested a way it could be corrected but any other change that meets the intent would suit us just fine, is that we would like to see regulations made under (1)(c) of section 28 as they are now be delineated at time of regulation. In other words, you need to map it, you need to say, "This property needs a permit and that property doesn't," when you make the regulation, not leave it to be interpreted at some later time as to where the boundary of the wetland or flood plain is. Everybody needs to know that.
The third area where we have requested changes is in the definitions, which I am told is a political minefield, to try to get everybody to agree on something. However, we weren't at the table when things were discussed the first time, so we would really like to put our ideas forward now. I can assure you that there are many people in my own organization and certainly across the farm community of the province who think our suggestions are mild as far as changes go here.
We have requested in the definition of "development" a "notwithstanding" clause that normal farm practices are not development.
We have requested in the definition of "water course" an absolute minimum area of drainage before they apply. We want to get away from if you dig a trench from your downspout it becomes a watercourse. It's got to be something more significant than that in order to justify the regulations.
In the "wetlands" definition, we have requested that subclause (b)(ii) be deleted. That has the effect on wetlands regulations of only regulating those wetlands that are on-line with a surface water system. It would eliminate from the CA's jurisdiction wetlands that were not on-line. We feel that has been handed down to the local planning authority and the water-taking has always been the jurisdiction of the MOE through the water-taking permit system.
The fourth area in which we have requested changes is on trespass, the new section 30.1, and we have asked that it be deleted in its entirety. We have spelled out some of our reasons in our request. We think it's more than is required to adequately administer the regulations of this act. I hope you'll have a chance to read that section. I'll answer questions on it, but I won't go over it right now.
In conclusion, our group has sent me into this wilderness called Toronto to be sure we are heard. I was pleased to recognize a tractor out front. It made me feel much more comfortable. We support good government and good regulations, and despite the scraggly appearance of the messenger, we hope you'll find support for our changes and encourage agriculture participation in discussions at an earlier stage of these bills.
The Chair: That affords us actually a little less or fairly close to a minute and a half per caucus, and we begin with the government members.
Mr Chudleigh: Welcome from the great region of Halton, an area of which I have the privilege of representing some portion.
Regarding your comments concerning the boundaries that the conservation authorities regulate within, those boundary lines are currently drawn? This isn't something that would have to be developed, they're already there on the maps?
Mr Fisher: It's my understanding that 1(c) replaces the fill line which is in your current regulations, so yes, they are currently drawn.
Mr Chudleigh: So that isn't a huge problem to make those part of future regulations, it's already there?
Mr Fisher: That's right. It has already been done.
Mr Chudleigh: On your comments concerning the appeals going to a full committee as opposed to a subcommittee, there have been a number of stories concerning various appeals, and in my experience most of it has been a matter of balance between what the conservation authority is trying to accomplish and what the farm community may need. There seems to be a lack of understanding on some committees as to what the business of farming is all about in today's world. Would you agree that if there was a stronger agricultural presence on some of these committees, many of the problems would disappear?
Mr Fisher: Absolutely. I hope we have made it clear in our presentation that we think conservation is achieved by working together as opposed to any other way, by regulation or whatever. Our concern, especially with committees, and we have had some experience with it, is that when the same four people hear the permit and then hear the appeal, even if there was agricultural representation on the board, you're not getting it heard. We would have loved to have delved into the issue of governance of the CAs themselves, but it's not in this act. We would suggest a full review of the act at some time.
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Mr Crozier: Good afternoon and welcome, particularly since it's agriculture week in Ontario. I too noticed the tractors out front this morning, and it wasn't me but it was suggested by someone out front that many city dwellers, not to define anybody in particular, might not recognize what those are. I thought that was going a bit far.
In any event, wetlands: I understand, I believe, the point you're trying to make about those wetlands that are not on-line. From your experience and those maybe of the federation around the province, are there many wetlands that wouldn't be on a watercourse? There must have been something that made you raise this question, so I'm curious what it was.
Mr Fisher: There's a significant number of wetlands that tend to be the smaller kind, and a lot of CAs haven't regulated them in the past in any way. We have a little bit of paranoia in the farm community. We get one or two, what I'll call zealous enforcement people, and the stories travel very fast and sometimes get bigger, but there's a lot of concern across the province about wetlands. There's a lot of concern about who regulates them and how they're regulated and who pays if nothing can be done. We're not advocating that all wetlands be drained. We're just advocating that it should be one authority that looks after them and the municipally elected level is our preference.
Mr Kormos: I'm particularly interested in your observations about section 30.1 and that's the search powers, which are pretty remarkable in view of the fact that a conviction here can result not only in a fine and an enhanced fine under the amendments, but also a custodial term, a jail term.
If I may -- I checked the notes provided by the ministry -- perhaps we could ask the parliamentary assistant to give us some specific rationale for section 30.1, which is pretty extraordinary. As I say, the purpose of 30.1 would be to permit authorities to enter on for, among other things, the purpose of securing evidence to obtain a conviction, to send somebody to jail. That's a warrant. That's your issue. Right?
Mr Fisher: Our issue is that there should be a warrant if they have the evidence to prosecute somebody. I would point out, though, that most people in violation don't think they've committed a violation. They're quite willing to invite the authority on their property to view it. Most people -- well, I shouldn't say most people. I don't have statistics to back that up, but I know of a number of cases where that has been the case. I know of no cases where the authority in our locality has had to resort to getting a warrant to enter a property.
Mr Kormos: Perhaps I could put that question to the parliamentary assistant and get some clarification.
The Chair: That concludes your time. Thank you very much for coming forward. We very much appreciate that. I believe Ms Ross may be able to provide that information for us as soon as details come forward.
ONTARIO PROPERTY AND ENVIRONMENTAL RIGHTS ALLIANCE
The Chair: We ask our next presenters to come forward, representing the Ontario Property and Environmental Rights Alliance. If you could come forward and identify yourselves for Hansard, we would appreciate it.
Mr Bob Fowler: My name is Bob Fowler. I'm the secretary of OPERA and one of our member organizations, the Association of Rural Property Owners in the Ottawa Valley, is here today to present our thoughts and concerns, Mr Bob Woolham.
Mr Bob Woolham: My name is Bob Woolham. I'm from North Augusta, Ontario. I operate a farm there of about 360 acres. I'm a director of ARPO and of OPERA.
We wish to provide members of this committee with advice about the Red Tape Reduction Act, schedule I, in particular the reference to the Conservation Authorities Act. We have suggestions on how parts of Bill 25 should be amended to better sustain the natural environment, conserve tax dollars, foster democracy and prosperity in our countryside and reduce red tape.
Firstly, in drafting this bill, Ontario municipalities, Ontario farm organizations and private landowner associations were not consulted, yet these are the sectors most affected. Secondly, sections of schedule I are not related to the reduction of red tape. Greater mandate, more control, extension of power: This is the thrust of schedule I, especially as it concerns the Conservation Authorities Act.
The Ontario Property and Environmental Rights Alliance, OPERA, is an organization of local community associations in Ontario whose members have serious concerns about ownership of their land and the erosion of property rights. They are worried that ownership of their land is being taken from them. They lack the resources needed to cope with the new urban and bureaucratic pressures bearing down upon rural Ontario. Our members do not hold land next to urban areas waiting for the market to ripen. Rather, OPERA simply represents thousands of private persons who usually, with their family, own some land for one reason or another in rural or farm country Ontario, usually with great pride, commitment and with hard work.
However, for some advocates, landowners are seen to be nothing more than greedy Marxist-defined capitalists whose land should be transferred to government. We are being confronted with a kind of environmental socialism. There is ample evidence worldwide to show that private ownership of land is one of the most powerful motivators in protecting and enhancing value and sustainability of land resources. That, by the way, may sound a little hysterical, but I also participate in things like the national accord on endangered species, water quality, clean water programs and several other things that are happening in this relationship we have.
OPERA's property owners pay a lot of taxes: capital gains and transfer taxes when land is sold; annual income tax on any income earned from it; and of course, annual municipal property tax, including a levy for the conservation authority. All our representations such as these today are funded privately. We do not enjoy a government subsidy like that accorded other special interest groups by government through the use of charitable tax credits for donations.
At the crux of the various issues of concern is the conversion of land use rights from private to state control, either at the owner's expense or that of the municipal ratepayers or both.
To best explain our position we will talk about wetland, although areas of natural and scientific interest, ANSIs, would serve the purpose equally as well.
In fact we would not be here today if we had not learned by accident several years ago that the Ontario Ministry of Natural Resources, without any legislated mandate to do so, had arranged to send its employees on to private land without the owner's knowledge or consent in order to determine and map what parts of his or her land might be better put to the "public good." In most cases, this was labelled "wetland," or ANSI, regardless of how the owner or other agencies might have chosen, if consulted, to designate the parcel.
This sterilization process involved advice to the municipality, thence to the official plan and on to the zoning bylaw. The process presently is winding its way through a costly OMB process.
It is remarkable that the governments of Canada and the USA agreed in 1986 to implement a policy of encouraging Canadian municipalities "to zone or otherwise prevent the destruction or degradation of waterfowl habitat." Ontario landowners thereby would be compelled gradually to donate their wetland assets in support of improving the fortunes of neighbouring duck hunters.
In Ontario, two things happened in the pursuit of wetland: At great expense a multi-million dollar wetland evaluation system was developed by the Ontario Ministry of Natural Resources, in combination with the University of Waterloo actually, in an effort to determine if a wetland in one location was more important than another. Obviously all wetlands are important and a much less costly, more straightforward alternative might have been invoked.
Secondly, more was better than less. The process was circumscribed to include wetland which was not wetland -- cleared or forested land which was flooded by water caused by beaver dams, a phenomena in many areas resulting from government initiatives in the early 1950s.
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Every landowner has a very good idea of what parts of his or her property are wetland. No one can hide natural wetland. Wetland isn't something that comes and goes. A natural wetland has been there for generations. Further, it would be academic to attempt to determine if one wetland were more valuable than another. Nevertheless, an exceedingly complex, intimidating and one-sided process was struck, with no input from municipalities, nor from landowners, nor from farm communities. Few are capable of wading through the Wetland Evaluation Manual's elaborate contents and understanding the process. While the process tends to serve more the interests of biologists, this manual was developed, it says, "primarily to serve the needs of Ontario's planning process," any effects of which are taken without compensation. OMNR owns the mandate to identify and evaluate Ontario's wetlands under the Planning Act.
Secondly, beaver-flooded land was included as wetland. This decision was wrong. Beaver-flooded lands are temporary. They come and go, and are subject to bureaucratic manipulation in terms of expansion and proliferation. Beaver-flooded lands are in a very different category and should not be considered wetland in terms of the Planning Act, nor in terms of the Conservation Authorities Act.
I'm going to leave out a couple of paragraphs because I think you can read these for yourself. You know as much as I do about the background on what the conservation authority is responsible for. I'll start on the next page.
In practice, however, a conservation authority's key mandate was concerned chiefly with implementing Ontario's flood plain planning policy statement under the Planning Act, and to managing land owned by the authority for recreational or other uses. The flood plain planning guide states: "It must be stressed that fill, construction and alteration to waterways regulations do not control land use. This is the responsibility of the municipalities and planning boards of Ontario." And so on.
In recent years, both MNR and conservation authorities have been actively promoting their competence in land use planning. Both seek more power and control in this respect, and this is exactly what schedule I sets out to do. It sets out to control and restrict land use, a function normally accorded municipalities. At the same time, more and more land use planning is being delegated by the province to municipal governments. These competing extensions of mandate sought in this bill and elsewhere are obviously very confusing for Ontario's landowners. It is OPERA's position in this respect that schedule I in its present form means more rather than less red tape.
As well, conservation authorities in recent times have sought out other programs to augment and improve their financial base: corporate donor programs, septic services and the Canada Fisheries Habitat Act, the latter two being billed back to the municipality or constituent. Taking on the Fisheries Habitat Act actually represents a downloading of a federal program on to the shoulders of Ontario municipal governments and their constituents.
Here are some of our comments and recommendations.
Clause 28(1)(b) states, "or for changing or interfering in any way with a wetland." This proposal as it stands is unreasonable and should refer specifically to natural wetlands related directly to a waterway and clarify that wetlands in the act do not include "manufactured" wetlands -- and by "manufactured," I mean that some farms now manufacture their own wetlands to clear and clean the water as it moves from the barnyard into the waterway, which works very well; I have one --beaver-flooded land on private property, agricultural drains or roadside ditches. Further, it is unreasonable to legislate that an owner of timber on wetland, ie, swamps located on private property, must also seek the permission of a CA to harvest timber. We used to call it logging.
"'Watercourse' means an identifiable depression in the ground in which a flow of water regularly or continuously occurs." This definition appears to anticipate the Canada Fisheries Habitat Act. The definition should be for a "natural watercourse" and not just "watercourse" and include "in which a flow of water flows along a defined channel, with beds and banks for sufficient time to give it substance" and be "exclusive of roadside ditches and culverts, and exclusive of ditches constructed for the drainage of cleared or once cleared lands."
It is also our position that if a CA contracts to undertake work related to some other act or regulation or code, then definitions of terms like "watercourse" should be those found there and not here.
The "wetland' definition: The definition given is particularly odious. It would severely restrict a landowner from managing land in a way best suited to his or her objectives. First, the definition of wetland should exclude beaver-flooded land, manufactured wetlands and so on and constructed or other ponds which are part of ditches used to drain agricultural or cleared or once cleared land. "Wetland" should not mean cleared land that has been replanted to trees or ornamentals. It should be made clear that "it does not mean land capable of being used for agriculture or forestry use, nor farm woodlots."
Lastly, "An officer may enter and inspect at any reasonable time, any place, structure," and so on. This particular section we find quite objectionable.
First, access to property is already provided in the Conservation Authorities Act under subsection 21(b). Second, it is unreasonable to provide new powers of entry on to private property, especially without cause. It has already been established that employees of government ministries or other agencies using power-of-entry provisions to enter private property in fact may carry out other clandestine functions likely to disadvantage the landowner. Powers of entry facing the private landowner are already extensive and excessive. Entering private property simply to look around without the consent or knowledge of an owner by an employee of a conservation authority in our view is harassment and is unwarranted in a free and democratic society such as the one in which we live.
If indeed some conservation authorities decide to take on other paying administrative tasks, such as septics, or on behalf of other government bodies, jobs such as under the Fisheries Habitat Act, then any needed access to property for inspection purposes should be secured under the terms of the relevant downloaded agreement. For example, a building inspector already has right of entry on to private property for, for instance, septics. Subsection 38(3) of the Fisheries Habitat Act states, "an inspector may, at any reasonable time, enter any place, premises, vehicle," and so on "where the inspector believes on reasonable grounds" that something happened "for any purpose related to the enforcement of this section."
In OPERA'S view, section 30.1 should be deleted. This powerful addition to the act, if it proceeds, will mean that a landowner's rights to the "peaceful use and enjoyment," under common law, will have been further stricken and reduced. These trends towards more and more rights of access on to private land and property constitute an erosion of democracy and a free culture. This trend is particularity worrisome for all landowners. Is this really the government of Ontario's intention?
This concludes my presentation on behalf of OPERA. There is some other material that I photocopied. I have other material as well in support of some of the statements I've made today.
The Chair: Thank you very much for your presentation. Actually, that only affords one question, and I believe it will be the Liberal's question.
Mr Colle: With this definition of "watercourse," the way it's stated it looks as if a ditch could be a watercourse. It is so vague and open to interpretation. You're basically saying, "Make it very specific; expand it and define it," so you don't have just anything labelled a watercourse at anybody's whim.
Mr Woolham: Yes. There's a very good definition in common law, and the one you see there is taken from common law jurisprudence.
The Chair: Thank you very much for coming forward with your presentation today. There was only time for one question, Mr Kormos. You will be the one who has the next question if there's only one.
Mr Kormos: They raised the issue of section 30.1, like the Ontario Federation of Agriculture, so I want to hear what the government's got to say about that.
The Chair: Thank you very much for your presentation. We appreciate you coming forward today.
CANADIAN BAR ASSOCIATION -- ONTARIO
The Chair: We call our last presenters for today forward, the Canadian Bar Association -- Ontario. Thank you for coming.
Mr Glen Davis: I'm Glen Davis. I'm the nominal front-runner here. The good news is that at this hour of the day, we're not referring to any section numbers or anything else. We're just here collectively, on behalf of the CBAO, to urge you to pass at least the portions of the omnibus bill dealing with the amendments to the Trustee Act. All of our arguing and representing and negotiating has gone on in the past, for several years, in fact, and all parties that we're aware of in the bar association are content that this is a good compromise and a big, big step forward in terms of Ontario law.
I just want to make a point with my material I filed: a copy of the cover of one of the two volumes, the forward and one of the pages of the index of the 522-page law reform commission report in 1984 on the law of trusts, crying out for amendment back then. The provisions in the omnibus bill reflect some of those changes with some twists, but it's a huge step forward, so we urgently welcome the introduction of this into Ontario law, which is still very old for a modern jurisdiction.
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As to my two colleagues, one represents the estates and trusts section of the Canadian Bar Association, which is a collection of solicitors interested in estates, trusts, powers of attorney, mostly dealing with things like that. The second colleague is a representative of the charities and not-for-profit section of the Canadian Bar Association.
We're here to stress the point that these amendments are not arcane, exotic things that only affect a few Ontarians; they affect everybody who makes a will, everybody who acts as executor or trustee -- which would probably include everybody in this room -- every church, every synagogue, every hospital board foundation. These are very wide-ranging parts of our law dealing with the investment of funds by trustees of all stripes and colours. So it's very important stuff to get on the books.
With that, I'll turn it over to my colleague Margaret Rintoul.
Ms Margaret Rintoul: My name is Margaret Rintoul. As Glen said, I'm the chair of the estates and trusts section of the CBAO. I'm also a practising lawyer. I'm in a small firm here in Toronto, and a good portion of my practice is estate planning.
I can tell you that it's very common to wind up with trusts that are of fairly small magnitude. We've been hoping for some long time that the proposed amendments that would allow the use of mutual funds for trust investment and the use of outside investment counsel by trustees would be passed into law. It was a great disappointment last fall when it died on the order paper, and we were quite pleased when it came back on.
We're not just talking the mega-rich and the mega-millions -- they can do the full investment portfolios -- but when you get down into the $100,000 or the $150,000 trusts that are set up under a will for a grandchild, where you've got a family member administering it, or a disabled relative for whom you're maintaining a trust, often the family member trustee doesn't have the expertise themselves to do a full investment portfolio. They have to be able, realistically, to look to investment counsel, to look to mutual funds for their investment.
We are supporting this amendment to the trustee investment provision of the Trustee Act. We'd urge you to pass it even if you don't pass anything else in the bill.
Mr James Parkes: My name is James Parkes. I'm here speaking on behalf of the charity and not-for-profit section of the CBAO. I would like to echo the comments of my colleagues from my section's perspective, which really focuses on charitable organizations in particular.
There has been a problem with the ability to invest funds that are held in trust or deemed to be held in trust. A number of these organizations are relatively small and can't afford sophisticated investment advice, and the inability to invest in diversified mutual funds, for instance, has been a serious problem, to the point that we've seen people who would otherwise want to volunteer to sit on a board of some charities decline because they've been concerned about the possible liability involved in making what the law has previously said might be improper decisions about investment.
This bill will certainly be helpful in that regard. Our section supports it and expresses a strong wish that it be passed as quickly as possible.
The Chair: Thank you very much for your presentation. That affords us approximately three minutes per caucus. We begin with the third party; Mr Kormos.
Mr Kormos: Thank you, Chair.
The Chair: No questions?
Mr Kormos: No questions. I listened to what they said.
The Chair: Very good. We'll move to the government members.
Mrs Lillian Ross (Hamilton West): I just have one question. My understanding is that this bill will allow, as you said, investing in mutual funds, which you haven't been allowed to do. Some people might say that opening up the list and providing more opportunities would create opportunities to invest in unsafe areas. How would you react to that?
Mr Davis: The bill also introduces mandatory investment criteria that trustees must advert to. A major theme of these amendments is that investing trust monies is a very serious business which often gets insufficient attention especially by lay trustees and fiduciaries of other kinds. The ability to make a poor choice of an individual stock has existed for several hundred years, so the ability to choose a mutual fund is just another opportunity to do something foolish. It doesn't change the character of the prudence that has to be brought to bear.
Mrs Ross: It just gives you more flexibility to invest in other areas.
Mr Davis: Enormously. More opportunity for smaller funds, in particular. How can one invest $50,000? You can't achieve diversification or you can't do a lot of things that you can do with a fund. The amendments cover much more than just funds, but they're all very positive.
The Chair: We move to the official opposition; Mr Crozier.
Mr Crozier: Thank you, no.
The Chair: Thank you very much for your presentation. We very much appreciate your taking the time to come before us.
At that, this committee is adjournded until Tuesday, October 6.
The committee adjourned at 1756.