Hansard excerpt (6): Conservation Ontario presentation at Oct. 17, 2017 OMB Reform hearing

This post features an excerpt from the Hansard transcript of the Oct. 17, 2017 OMB Reform hearing at Queen’s Park.

My notes of the above-noted hearing are featured at a previous post entitled:

Oakville mayor, Mississauga deputy city solicitor, and former Toronto chief planner speak out at Oct. 17, 2017 OMB Review hearing

In the text below, I begin with my own notes, after which I conclude with the Hansard transcript, of the presentation by Conservation Ontario.

Please note: I have posted the text in adherence to the Copyright provisions regarding Hansard texts.

A previous post features the following overview of the Conservation Ontario presentation

At 4:40 p.m., Kim Gavine, General Manager, Conservation Ontario, spoke. Hassaan Basit and Bonnie Fox were also on the speaker’s list, for the organization; I don’t recall if they spoke.

Kim Gavine notes she is representing Conservation Authorities.

Refers to a case of damage to wetlands. Costly injunctions followed. Smaller Authorities can’t afford the cost of injunctions.

Notes liability risks from climate change are growing. Indemnity (as in Saskatchewan) is required. Is over all very supportive of the Conservation Authority initiative [in the proposed legislation].

Q: Thank you for the outline you have provided. Can you police rogue members?

A: We don’t have that ability. We have no oversight of their operations.

Q: There have been complaints with regard to some Conservation Authorities. Some people have asked the Province to play a more central role. Any suggestions? What powers [could be be placed in the Bill,] or [are in the Bill], so that an outside Authority could take action? [The square brackets refer to the fact that I am not clear, from my notes, just what the question was.]

A: We are open to improvements. Refers to public sector accountability. If the Bill is passed, the Province could step in.

Q: Are there any circumstances that would justify the Province taking over an Authority?

A: If I were a Conservation Authority I could answer. Our Council meetings address such questions. It’s not been discussed at Council.

Q: Did you ask the government to help with things [that were of concern]?

A: Refers to looking for more modernized decisions. We didn’t address powers of entry. TRCA did. There is support, in Bill 139, for powers of entry. To protect life and property. In extreme circumstances.

Q: Question refers to the ability of the Province to [give direction] related to additional authority. [Question also refers to qualifications. My notes unclear at this point.]

A: We have not taken a position.

What is in place works well. Boards serve their purpose. There may be times, when any good model doesn’t work. The model works in most cases.

Q: The reputation of Conservation Authorities is at stake. Refers to the topic of abuse of power. Of not carrying out mandate. Lawyers and medical bodies are in a position to discipline their members. Other bodies can be disciplined.

Reference is made to question of protection, by residents, of wetlands. Question of situation where a Conservation Authority has [had a negative impact].

A: There are tools to protect against that.

The Conservation Ontario handouts on Oct. 17, 2017 included a page with two photos concerned with property access, that the Toronto and Region Conservation Authority required, in order “to recommend immediate remedial action to remove an unstable cantilevered deck from the highly erosive Scarborough Bluffs.”

Below is the Hansard transcript of the same presentation

The Acting Chair (Ms. Cindy Forster): We’ll now move on to Conservation Ontario: Kim Gavine, Hassaan Basit and Bonnie Fox. Good afternoon. You’ll have 10 minutes. If you could please state your names for the record.

Ms. Kim Gavine: Good afternoon. My name is Kim Gavine. I’m general manager with Conservation Ontario. With me today are Hassaan Basit, the chief administrative officer with Halton Region Conservation Authority, and Bonnie Fox, our planning and policy manager at Conservation Ontario.

We represent the 36 conservation authorities. We are before you today to provide comments and suggest amendments to schedule 4 of Bill 139, which pertains to the Conservation Authorities Act. These proposed amendments were circulated to our members and discussed at our September 25, 2017, council meeting. As well, these proposed amendments have been discussed with Ministry of Natural Resources and Forestry staff, and their constructive feedback is acknowledged.

Conservation Ontario supports the leadership demonstrated by the province in addressing the need to modernize the Conservation Authorities Act, and encourages the government to move forward with the passage of this bill. Conservation authorities play an important historical and successful role in addressing many of today’s environmental and resource management challenges, particularly in light of the growing impacts of climate change and rapid urbanization.

Overall, we are very pleased with the proposed changes to the act, and we appreciate that the province acknowledges the broader watershed management role of conservation authorities and the effect it has on protecting the sustainability of our important natural resources.

We also welcome the proposed improvements to governance and accountability. These will provide a baseline standard for all conservation authorities, improving the transparency and effectiveness of our operations.

Our comments today focus on two key areas that are intended to strengthen the proposed amendments in schedule 4 of Bill 139: (1) enforcement and offences provisions and related issues, and (2) liability protection for conservation authorities.

My comments will provide you with an overview of what we’re requesting today. Of course, more details are available in our written submission, which has been handed out to you.

Conservation authorities regulate development and other activities in areas of water-related natural hazards, such as flood plains, shorelines, wetlands and hazardous lands, in order to protect people and prevent costly property and infrastructure damages. In order to do so, the Conservation Authorities Act provides a number of regulatory and enforcement tools.

We have been waiting for some time for modernization of the enforcement provisions. Conservation authorities have been struggling to find efficient ways to address significant non-compliance issues in the absence of the legislative tools required to fulfill their mandated legislative roles. They desperately need the new tools, such as the stop-work orders and increased fines being proposed in Bill 139.

Without these, costly injunctions, legal proceedings and countless staff time are being allocated to address issues that could otherwise be handled effectively with the timely enactment of the proposed enforcement provisions in part VII.

Stop-work orders help conservation authorities to address illegal work threatening natural resources. An example is to quickly prevent the illegal filling-in of wetlands. Wetlands provide many benefits, but one of the ones you will be most familiar with is their ability to prevent flooding. They absorb and store excess flood waters, slowly releasing them over time.

Despite this, wetlands continue to be filled in across Ontario. One way that conservation authorities currently try to prevent this work is with injunctions. However, it takes time and money for them to actually get the injunction, and while they are doing so, many contractors continue to work. By the time the conservation authorities finally get the injunction, the damage has often already been done and can be irreparable.

Even if contractors are fined afterwards, many see this just as a cost of doing business. The $10,000 fines that are currently imposed need to be much more significant in order to have an impact.

Attachment 1 of our written submission provides a number of photos of a provincially significant wetland in the Grand River watershed that was illegally filled in. The Grand River Conservation Authority spent $28,000 on a court injunction to stop the activity. In this case, the use of a stop-work order might have been sufficient to prevent extensive damage to the wetland and would have prevented the need for a costly injunction.

The Sault Ste. Marie Region Conservation Authority is also battling work currently under way in an important wetland in their watershed. They are a smaller conservation authority and cannot afford the legal costs of an injunction. Consequently, an important wetland continues to be destroyed as we speak.

Another recommendation we are suggesting in our submission is that amendments be made so that part VII’s “Enforcement and Offences” clauses can come into force quickly. Training of conservation authority staff and updates to regulatory compliance implementation guidelines can be delivered within three months of enactment. Ultimately, this will help to reduce taxpayer burden, provide better customer service to watershed residents and modernize the act to be consistent with comparable pieces of legislation.

Another area we would like to address in Bill 139 is around the appeal mechanism for stop-work orders. It is recommended that an amendment to the appeal mechanism for the stop-work orders be directed either to the courts or directly to the minister, who could appoint a hearing officer instead of the conservation authority board. Option 1, being directed to the courts, is currently used for the building code, and option 2, going directly to the minister, is used for the Endangered Species Act. An amendment in support of one of these options would provide for a fair and impartial process for people who request an appeal of the stop-work order.

The appeal mechanism, as currently proposed, could potentially place the conservation authority board or executive committee in a conflict position for two important reasons. First of all, the proposed right to a hearing before the authority board or executive committee may lead the applicant to question whether the hearing was fair and impartial. Secondly, authority boards or their executive committees are the decision-makers when it comes to permissions granted under section 28 of the act. Subsequent decisions based on a proposed development could be perceived as being swayed by a previous stop-work order hearing pertaining to that particular property or individual. In both cases, this will lead to an appeal to the minister in circumstances where a stop-work order has been confirmed.

Finally, to maximize the effectiveness of and further modernize part VII, it is recommended that provisions be included to support orders to comply and/or take remedial action, court orders on title following conviction and officers defined by regulation. Of course, more detail on this is provided in our written submission.

The last item I want to bring to your attention is around liability protection for conservation authorities. As we experience stronger and more frequent storms and flooding, the liability risk for conservation authorities and their government partners grows. Conservation authorities are mandated responsibility for this role on behalf of the province, and should be provided some form of statutory immunity for the goodwill operation of this essential flood-erosion infrastructure. The province of Saskatchewan provides this form of indemnity for a similar agency, and we’ve provided their wording as an example in our written submission.

I wish to thank the standing committee for the opportunity to speak with you and to make a written submission. You can review more detailed explanations of our recommendations in that written submission.

As I mentioned at the beginning of my remarks, overall we are very supportive of the province’s initiative to modernize the Conservation Authorities Act, and your consideration of our suggested amendments is greatly appreciated. We look forward to working with the province and our watershed stakeholders to implement this new legislation.

The Acting Chair (Ms. Cindy Forster): Thank you for your presentation. We’ll move to government member Mr. Bradley.

Mr. James J. Bradley: I’m not a member of this committee, but I’m delighted to be here today. First of all, I want to thank you for outlining the role and responsibility of your authority members. Does your organization have any provision to police your members or to take any action on members who are rogue in terms of the role that they’re playing, instead of the role that they’re supposed to be playing, such as suspending the membership or ending the membership of any authority which does not comply with your policies and principles?

Ms. Kim Gavine: We do not have that ability, Mr. Bradley. We actually work for the conservation authorities. We have no oversight of their operations.

Mr. James J. Bradley: So you would not, then, have taken any action against any rogue authority, since you don’t have that authority?

Ms. Kim Gavine: Correct.

Mr. James J. Bradley: There have been complaints in certain parts of the province about some authorities. There has been much controversy taking place, and people have asked that the provincial government play a more central role in dealing with it, because your authority obviously doesn’t have that authority, or haven’t decided as an organization to exercise it because you don’t have it. Do you have any suggestions as to what powers could be placed in this bill to ensure that an outside authority would be able to take action against an authority that is clearly not living up its mandate?

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Ms. Kim Gavine: I’ll start by answering that and suggesting that, in my presentation, I said that we are open to improvements around openness and transparency. I think that conservation authorities do take many steps in terms of public sector accountability, best management practices, templates and things of that sort, where they can do thing on their own. It’s my understanding that, if the bill was passed, there would be an opportunity perhaps for the province to step in.

Mr. James J. Bradley: In fact, you are correct in saying that there are provisions within the legislation, as it exists, for the province to be active in terms of dealing with local authorities that may not be living up to their mandate. Can you think of any circumstances, in your mind, that would justify the province taking significant action against an authority, such as taking over the authority?

I know how you guard your independence and I know this is a difficult question for you because you’re representing authorities. But do you see anything that could be placed in the legislation that would be valuable in permitting a government, as people have asked, to be able to, for instance, appoint a supervisor of an authority if, in the opinion of the government, after receiving input from people in a specific area, they would then take such action?

Ms. Kim Gavine: Perhaps if I was a conservation authority, I might be able to answer that question. But as Conservation Ontario, who represents the collective—these types of discussions are brought forward to our council meetings, where positions are taken. The notion of the creation of someone who would be able to step in and take over has not been discussed at council, so I would not be prepared to provide an answer on that.

The Acting Chair (Ms. Cindy Forster): Thank you. We will move on to Mr. Hardeman or Mr. Miller.

Mr. Norm Miller: Yes, thank you.

The Acting Chair (Ms. Cindy Forster): Mr. Miller.

Mr. Norm Miller: Thank you for your presentation. First of all, I guess I wanted to ask about warrantless entry. Did you ask the government to increase the rights to warrantless entry? If so, what situations brought about that request?

Ms. Kim Gavine: We were looking for more modernized provisions. We provided the photos to give you some examples of some of the situations that we’re dealing with. I’m going to pass it over to Bonnie Fox to provide more details around that.

Mr. Norm Miller: Sure, thanks.

Ms. Bonnie Fox: In our submission, we didn’t get into details around powers of entry. I believe that Toronto and Region Conservation Authority did. But regardless, in the review of Bill 139, there was full support across the conservation authorities with what was being proposed with regard to powers of entry.

There are examples of where that is something that is an important tool for us to have for protecting life and property. If there’s a hazard situation or an environmental degradation occurring, if there are extreme circumstances, then that is something that could be used.

Mr. Norm Miller: But under the current rules, you do have the ability to have warrantless entry; you just have to give a reason. Am I not correct with that?

Ms. Bonnie Fox: Yes. I think, with the proposed amendments, it’s basically a modernization of that and making it consistent with what municipalities are able to do with some of their enforcement officers.

Mr. Norm Miller: We just had a presentation from AMO, the Association of Municipalities of Ontario. One of the issues they had was with regard to the province’s ability—and I’ll read from their submission: “may make regulations governing the composition of conservation authorities and prescribing additional requirements regarding the appointment and qualifications of members of conservation authorities.”

AMO doesn’t like that. They feel, seeing as they’re the main funder, that they should be able to appoint members and this shouldn’t be required. Do you have thoughts about that aspect of the bill?

Ms. Kim Gavine: Conservation Ontario has not taken a position on the appointment of members. Again, it’s our understanding that there could be a regulation that could be created regarding that. Perhaps I’ll pass it over to Hassaan to talk about some of the experiences that you have with your local municipalities.

Mr. Hassaan Basit: Thank you for that. Of course, everybody is familiar with the model of governance for conservation authorities, and for us, it works quite well. We have bylaws; we have policies and procedures. Our board serves their purpose. Their governance, responsibilities, transparency and accountability—we feel it’s a good model.

I understand that there are times when any good model perhaps doesn’t work, and we’re sensitive to that as a conservation authority—one of 36—but I do feel that in most cases, it’s a good model and it works. It certainly works at Halton.

The Acting Chair (Ms. Cindy Forster): Mr. Hatfield.

Mr. Percy Hatfield: Thank you for coming in. When is your next meeting of Conservation Ontario?

Ms. Kim Gavine: Of council?

Mr. Percy Hatfield: Yes.

Ms. Kim Gavine: December 11.

Mr. Percy Hatfield: Would you consider putting on that December 11 agenda, for a discussion item, the issue that Mr. Bradley has raised?

Ms. Kim Gavine: Perhaps.

Mr. Percy Hatfield: Perhaps. Thank you for that.

I think the reputation of conservation authorities is somewhat at stake here, if serious claims are levied that there’s an abuse of power or someone is not carrying out the mandate that all conservation authorities have. It seems to me that if you have a medical society, they can discipline, and lawyers can be disciplined.

I’ll just read—it’s perhaps another avenue here—an email that just came in from a Toni Chahley:

“Please amend the Conservation Authorities Act to require conservation authorities to consider submissions from the public with respect to developers’ proposals to destroy provincially significant wetlands; and allow citizens to appeal conservation authority decisions that allow developers to destroy provincially significant wetlands to the Mining and Lands Commissioner. If developers are allowed to appeal decisions that protect wetlands, citizens should be allowed to appeal decisions that permit wetland destruction.”

What do you think about that?

Ms. Kim Gavine: I’m going to pass this over to Hassaan.

Mr. Hassaan Basit: Thank you, MPP Hatfield. The conservation authority does protect wetlands. It is part of our regulation. We have policies in place to protect those. If a wetland that is regulated by a conservation authority is impacted, then we have avenues to pursue that.

Mr. Percy Hatfield: But if a local conservation authority board is impacting it, what authority do you have to do it then?

Mr. Hassaan Basit: When I look at the amendments that are proposed to the CA Act in front of us, I do see that there are a lot of tools in there to protect us against that. There is an acknowledgement, an overall narrative and some specifics with regard to conservation authorities playing a role on a broader systems basis.

Yes, we have the hazards program, but there are areas, such as watershed-based planning, such as support for provincial priorities in the areas of the new wetland conservation strategy, natural heritage systems and climate change.

So I do feel that there are tools that are in these enabling legislative amendments that will allow us to serve our function more thoroughly, moving forward.

The Acting Chair (Ms. Cindy Forster): Thank you so much for your presentation.

[End]