Canada: A Watershed Moment? Ontario's Bill 229 To Impact Conservation Authorities' Powers
Developers and landowners should review new or existing permit applications that involve conservation authorities' consent or approval, in the wake of new legislative changes that will affect certain permitting powers and related appeals processes.
On November 5, 2020, the Ontario government introduced a number of changes to the Conservation Authorities Act (the "Act") that will significantly impact the role of conservation authorities when it comes to issuing and appealing permits. These changes were introduced as Schedule 6 to the omnibus bill titled Bill 229, Protect, Support and Recover from COVID-19 Act (Budget Measures), 2020 ("Bill 229"), which has recently received Royal Assent.1
Key changes include:
- certain conservation authorities' abilities being re-delegated to the Minister of Natural Resources and Forestry (the "Minister");
- the creation of certain "mandatory permits", which conservation authorities must issue if the enumerated conditions are met; and
- a new appeals process that impacts, and possibly complicates, the permitting process.
Who are Conservation Authorities?
Conservation Authorities ("CAs") are local management agencies that deliver services and programs to protect water and other natural resources, often working with the government and landowners to do so. There are thirty-one CAs operating in southern Ontario and five in northern Ontario.2
Re-Delegation of Powers
The amendments introduced by Bill 229 will change the activities that CAs have typically engaged in. The revisions will likely have a significant impact on CAs' core programs and services.
One of the more contentious aspects of Bill 229 concerns its amendments to section 28 of the Act, which would grant authority to determine permit applications to the Minister in place of a CA. Section 28 of the Act describes certain prohibited activities and developments in areas that could be prone to flooding and erosion.3 In the prior version of the Act, permits for developments that affect these areas were appealable to the Minister, if the CA refuses a permit or issues a permit subject to certain conditions.
The new amendments allow the Minister to review a CA's decision regarding issued or refused permits, and after conducting such a review, to confirm or alter the decision, or take any action the Minister considers appropriate, including issuing the permit. After making such an order, the Minister may issue the permit instead of the CA. Some authorities have commented that these added powers could be used to bypass CAs to go straight to the Minister for approval.4 Further, the amendments also allow for a decision of the Minister to cancel a permit to be appealed to the Local Planning Appeal Tribunal (LPAT).
Notably, the new amendments make certain permit applications mandatory, in that if the applicant meets the enumerated criteria, the CA must issue the permit.
For example, Bill 229 adds new section 28.0.1, which applies to applications submitted to CAs for permission to carry out development where certain zoning orders have been made, the lands in question are not located in a Greenbelt Area as designed under section 2 of the Greenbelt Act, 2005, and any other requirements as may be prescribed. The amendments make it mandatory for a CA to approve of such development, if these three enumerated conditions are met. Further, even if a CA imposes other conditions on these mandatory permits, the applicant can seek Ministerial review of any such conditions. The Minister may then confirm, vary or remove the conditions altogether, or take any other action that the Minister sees fit. The permit holder may also seek recourse from any additional conditions from the LPAT in place of the Minister. As such hearing, the LPAT may also vary, remove or add to the conditions as it deems appropriate.