Conservation Authority Act amendments an assault on wetlands, helpful clarification, say lawyers

In Ontario’s proposed overhaul of the province’s Conservation Authorities, critics say the government is stripping them of power and handing it to developers. But within the many changes there is also helpful clarity for municipalities and landowners, says one environmental lawyer.

Ontario has 36 different Conservation Authorities which are responsible for regulating the province’s watershed. The Ontario Government has proposed a number of amendments to the Conservation Authorities Act. The changes are in Ontario’s recent omnibus budget; Bill 229, Protect, Support and Recover from COVID-19 Act, which is currently in second reading.

While the provincial government sees their proposed changes as strengthening oversight and accountability over the Conservation Authorities, some environmental groups see the amendments as “opening the door” to the Province usurping their power, says Richard Butler, partner at Willms & Shier Environmental Lawyers LLP.

“Those are, generally speaking, the two sides to this debate,” he says.

Ontario’s proposed changes are an “all-out attack on wetlands,” says Laura Bowman, a lawyer with the environmental law charity Ecojustice.

“This is about developers who want to build in wetlands,” Bowman says.

Conservation Authorities have the power to deny permits to land developers if their plans do not pass the environmental tests set out in the regulations under the Conservation Authorities Act. The Provincial Government wants to cede itself power to override the expertise of the Conservation Authorities, she says.

“Generally speaking, Conservation Authorities are best positioned to protect wetlands, endangered species, valley lands – things like that,” she says. “Because they are the agencies with the greatest expertise in watershed protection and watershed management.”

“Although the legislation purports to require the minister to apply the same test, it really raises the question of why it is necessary for the minister to have this power. In my view, the only reason the minister needs this power is to override the expertise of conservation authorities in making conservation decisions under the regulations.”

Butler’s practice is focused on environmental litigation, including civil litigation for damages, appeals in the Environmental Review Tribunal and appeals of Conservation Authority decisions at the Mining and Lands Tribunal, as well as judicial reviews and defensive environmental prosecution.

He says that there are aspects of the proposed changes that will be welcomed by some of his clients: landowners and municipalities. There is often confusion about which regulator to deal with; the Ministry of the Environment, Conservation and Parks or the local Conservation Authority, he says.

“Most of the people that we defend on Conservation Authority charges are people that generally didn't understand that they needed to seek the approval of the Conservation Authority,” he says.

With these legislative changes, the government is trying to provide jurisdictional clarity, he says, adding, “That is, I think, what the government would say.”

Among the most contentious issue in the proposed amendments is a change to the appeal route for refused permits or permits approved with onerous conditions, says Butler.

Currently, unsatisfied applicants could seek reconsideration from the Conservation Authority, which may hold a hearing and issue a decision, and then have a full appeal before the Mining and Lands Tribunal, as a designee of the Minister, he says. The decision from the tribunal could be appealed to Divisional Court. The proposed changes would allow those who submitted a request for reconsideration by the Conservation Authority to go directly to the Local Planning Appeal Tribunal if they do not get a decision within 30 days, says Butler.

The applicant may also seek a review from the Minister of Environment, Conservation and Parks, rather than reconsideration by the Conservation Authority, he says. The Minister may hold a hearing and issue a written decision. If the Minister does not respond within 30 days, the matter goes to the LPAT.

“The contentious issue is that environmental groups see the power of the Minister to issue the decision – granting a permit, with or without conditions – as a side-step around the prior protections,” says Butler. “That is fair. However, there are also elements that add some certainty to the timing of this process that some appellants, like landowners, municipalities, will appreciate. There are also protections afforded under the Environmental Registry and a written decision by the Minister, which can presumably be judicially reviewed.”

“Some of the clients that I represent, which include private parties and municipalities, will appreciate those changes,” says Butler. “Because I think it will give some certainty to people working within the Conservation Authority system, that there's a timeline for a response. To be honest, it can be very, very different working with different authorities; how long they take to respond and how they respond. So, from some of our clients’ perspective – some municipalities and private landowners – that increased certainty of response time is welcome.”

There are also proposed amendments that would roll back the Conservation Authorities’ powers to enter onto privately owned land to investigate permit applications and compliance. Butler says that environmental groups would “fairly have concerns” over these changes.

“They want to make sure that conservation authorities are still able to do their job,” he says.