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Impact of Bill 229 on conservation authorities, watersheds | Rizwan Khan

Friday, May 14, 2021 @ 12:41 PM | By Rizwan Khan

Rizwan Khan %>
Rizwan Khan
A little over a month after its introduction to the legislature, the government of Ontario passed omnibus Bill 229, Protect, Support and Recover from COVID-19 Act (Budget Measures), 2020 into law on Dec. 8, 2020. Schedule 6 of the bill introduced several fundamental changes to the Conservation Authorities Act (CAA) affecting both the scope of the CAA and the role of conservation authorities (CA).

On Nov. 5, 2020, just prior to Bill 229’s tabling, the government posted an environmental registry of Ontario bulletin indicating that the public consultation requirement under Part II of Environmental Bill of Rights, 1993 (EBR) would not be necessary since the bill’s proposed amendments formed part of a budget. Normally, environmentally significant amendments to legislation require consideration of input from the public unless, as noted by the government, the proposed changes form part of a budget presented to the Legislative Assembly. Amending the CAA in an omnibus bill that includes other budgetary measures meant, at least in the governments’ eyes, that the public need not be afforded its right to consultation.

As noted by the auditor general, the current provincial government has made a habit of avoiding compliance with the EBR, particularly its public consultation requirements, since it first came to power in 2018 and promptly repealed the cap-and-trade program. Circumventing the EBR has increasingly seemed designed to stifle public opposition to projects that may have a significant environmental impact. The government has since broadened these efforts to include regulatory bodies whose purpose includes the scrutiny of government action. Evidence of the government’s approach can be seen in its elimination of the environmental commissioner in 2018, the recent amendments to the Environmental Assessment Act under Bill 197, and Bill 229’s changes to the CAA.

The CAA was originally established to respond to the impact of poor land, water and forestry management in the 1940s, but following the 1954 tragedy of Hurricane Hazel, the CAA was amended to expand the powers of CAs to acquire and regulate lands for the purpose of conservation and public safety. The mandate of CAs, prior to Bill 229’s changes, was to undertake watershed-based programs to protect people and property from flooding, and other natural hazards, and to conserve natural resources for economic, social and environmental benefit. In recent years CAs have also spearheaded climate change adaptation and mitigation efforts.

It is deeply concerning then that several of Bill 229’s amendments undermine the CAA’s mandate and the ability of CAs to confront complex and evolving environmental issues. The most notable of these changes include:

1. Requiring at least 70 per cent of CA members to be municipal councillors, regardless of qualification, while also repealing CAs’ power to establish threshold qualifications for members. As a result, municipalities may not be able to appoint members of the public with relevant expertise that municipal councillors lack.

2. Limiting the statutory aims of CAs to providing programs and services that fit within one of four narrowly ascribed mandates, implicitly precluding the Integrated Watershed Management (IWM) approach currently relied on by CAs. IWM is an approach that takes a watershed basis to managing development and natural resources. The approach has allowed for the accounting of a multiplicity of interests from a diversity of stakeholders, including municipalities, landowners and businesses, in the sustainable development and use of resources.

3. Empowering the minister of environment to order a CA not to issue a development permit, either before an application has been submitted, or before a decision on an application is made. After such an order, the minister can issue a permit to the applicant instead. This power grants the minister the broad discretion to circumvent a CA’s decision-making process to permit a development project without conditions.

4. The introduction of a new appeal process for permit applicants that is a marked departure from the earlier regime. The new process provides a number of additional opportunities for an applicant to challenge a CA’s permit decision. Applicants can now appeal an unfavourable decision directly to the minister or to the local planning appeal tribunal (LPAT). The process is also longer, more complicated, less transparent and provides the minister with the discretion to ignore the basis of a CA’s permit decision.

5. The Planning Act has been amended to exclude CAs as a “Public Body.” This means CAs will be unable to independently appeal land use planning decisions or act as a party to an appeal at the LPAT, except under specific circumstances. The amendment also relegates CAs to the provincial “one window” approach to participating in provincial planning, with comments and appeals having to be co-ordinated through the Ministry of Municipal Affairs and Housing (MMAH). As the one window approach does not ensure the interest of participants will be reflected in the MMAH’s implementation of the Planning Act, IWM will likely be excluded as a consideration in provincial planning matters.

Taken as a whole, Schedule 6 of Bill 229 removes important regulatory safeguards that have served to balance the need for economic development with equally important long-term public health concerns by diminishing CAs’ ability to address natural hazard risks and climate change. While the amendments may certainly expedite economic development, they will likely come at the expense of the environment, public health and the provincial treasury when it has to address the cost of these shortsighted changes.         

Rizwan Khan is counsel with Viridius Lex LLP, lawyers who specialize in environmental and land use planning law.

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