The implications of amendments in Bill 229 on Conservation Authorities in Ontario

At the time of writing this article, Bill 229 was at second reading.

The jurisdiction of Conservation Authorities has expanded over time, and rights of appeal from their decisions are limited in many circumstances. If passed, Bill 229, Protect, Support and Recover from COVID-19 Act (Budget Measures), 2020 will mean substantial changes to the authority and jurisdiction of Conservation Authorities.

Overview of Conservation Authorities in Ontario:

In 1946, the Ontario Provincial Legislature created the Conservation Authorities Act, R.S.O. 1990, c. C.27 ("CAA") with a mandate of conserving, restoring, developing, and managing Ontario's water and other natural resources through the delivery of watershed-based programs and services. Today, this mandate has expanded to include the protection of people and property from flooding and other natural hazards, and to conserve natural resources for economic, social and environmental benefits in partnership with all levels of government, landowners and many other organizations.^[1]

To carry out this mandate, the Province of Ontario established local public sector organizations called Conservation Authorities on the petition of two or more municipalities under the CAA. Conservation Authorities are made up of a membership of municipal representatives appointed by municipalities.^[2] The Conservation Authorities deal with issues related to watershed management, flood and erosion control and prevention, water quality and quantity management, development, interference and alteration regulation, natural heritage protection, watershed stewardship, technical support for land use planning, as well as education and recreation.^[3]

Currently, there are 36 Conservation Authorities in Ontario created under the CAA.^[4] 31 of these Conservation Authorities serving Southern Ontario, and the remaining 5 serving urbanized areas in Northern Ontario.^[5]

Changes to the Local Planning Appeal Tribunal's Jurisdiction:

In November 2018, the Province commenced a review (the "Review") of all relevant regulations and legislation that govern Conservation Authorities. The Ministry of the Environment, Conservation and Parks engaged in consultation with various stakeholders, including municipalities, the agricultural and development sectors, environmental and conservation organizations, and landowners, about the appropriate role of Conservation Authorities. The Review culminated in a proposal to amend the CAA and the Planning Act introduced by the government on November 5, 2020 as part of Bill 229.

The Review found that Conservation Authorities have expanded their programs and services beyond the scope of their core mandate. The proposed changes to the CAA and the Planning Act are intended to restrict the scope and range of activities that Conservation Authorities are permitted to undertake, and delegate powers to other bodies to deal with Conservation Authority matters.^[6] The changes would provide additional oversight for municipalities and the province, to improve transparency, consistency in operations, and to streamline Conservation Authority roles and responsibilities in land use planning and the issuance of permits. ^[7] The Review found that there still remains a need for the core activities of Conservation Authorities. One notable change is the expanded jurisdiction of the Local Planning Appeal Tribunal ("LPAT").

1. Appeals of Municipal Levies

One concern stemming from the expanded mandate of the Conservation Authorities that was identified in the Review is the increase in municipal levies, which form just over half of the funding for the operation of Conservation Authorities.^[8]

In its current form, the CAA provides that certain municipal levy appeals are heard by the LPAT and others by the Mining and Lands Tribunal. The use of two separate tribunals to hear appeals raises concerns regarding consistency. If passed, the CAA would be amended to expand LPAT's jurisdiction to hear Conservation Authority matters, including all municipal levy appeals.^[9] The reduction in the jurisdiction of the Mining and Lands Tribunal may provide expanded appeal rights for landowners.

Further consultations on regulatory and policy proposals relating to municipal levies are set to take place in the near future. This would involve the establishment of a transition period for Conservation Authorities and municipalities to enter into agreements for municipal funding of non-mandatory programs and services. During this period, Conservation Authorities may develop and implement transition plans for the funding of non-mandatory programs and services moving forward.^[10]

2. Issuance of Permits under section 28 of the CAA

The Review of Conservation Authorities also exposed concerns with the efficiency, consistency, and affordability associated with the issuance of development permits pursuant to section 28 of the CAA, and their role in the land use planning and approval processes.

Section 28 of the CAA grants Conservation Authorities the power to make regulations applicable to an area under its jurisdiction. Landowners must obtain permission from the governing Conservation Authority for development proposed on properties located in these regulated areas, or when the type of proposed development itself is regulated, pursuant to section 28 of the CAA.^[11]

Currently, under section 28 of the CAA, Conservation Authorities have the power to refuse permission, or grant permission with or without conditions.^[12]  Where permission is refused, or an applicant objects to conditions applied to a permit, the applicant has the ability to appeal to the Minister of Natural Resources and Forestry (the "Minister") within 30 days of receiving reasons for the conditions or refusal. The Minister may then either refuse the permission or grant the permission with or without conditions.^[13] It has been rare for the Minister to overturn a decision on appeal.

The Province seeks to make the permit issuing system more efficient and affordable by streamlining these responsibilities through the Minister, as well as the LPAT. First, the Minister would be authorized to order or decide an application for a permit under section 28 of the CAA in place of the Conservation Authority. Applicants would also be able to request that the Minister review a Conservation Authority's decision to issue a permit, apply conditions, or deny a permit, within 30 days of the release of the decision.

These changes would significantly broaden the jurisdiction of LPAT inCAA matters. Currently, the appeal process under section 28 of the CAA is limited and does not involve LPAT. The proposed changes to the CAA would allow applicants to appeal permit fees charged by a Conservation Authority directly to LPAT.

The proposed changes would also extend the time permitted to appeal permit decisions. Applicants would be able to appeal the decision or non-decision of the Minister, or the cancellation of a permit directly to LPAT within 90 days. Alternatively, applicants would also have the ability to appeal a Conservation Authority's decision on section 28 permit applications directly to LPAT within 120 days.^[14]

These are positive changes for landowners, as they would provide additional avenues and more flexibility to challenge the outcome of their section 28 permit applications.

3. Land Use Planning

The proposed changes to the CAA also involve the addition of Conservation Authorities to subsection 1(2) of the Planning Act, which would make Conservation Authorities public bodies under the CAA and integrate them into the Province's one window planning approach. The ultimate result of this would be that a Conservation Authority would no longer be permitted to appeal a decision to LPAT or be a party to an appeal before LPAT. However, Conservation Authorities would still be able to participate in LPAT appeals when they are called on by the municipalities or the Province to provide advice or support.^[15]

Regulations

The Regulations implementing these legislative changes will be important, and the full impact of these legislative changes will not be clear until those Regulations are released. The government has announced that it will be releasing Regulations in the near future.

For example, one anticipated regulation will address how a matter will be dealt with if there are issues of consistency with the Provincial Policy Statement ("PPS"). PPS consistency is an issue typically addressed through land use planning appeals before the LPAT.