HomeMy WebLinkAboutPLN 27-21Report to Council
Report Number: PLN 27-21 Date: May 25, 2021
From: Kyle Bentley
Director, City Development & CBO
Subject: Changes to the Conservation Authorities Act and the Planning Act
Arising from Bill 229, Protect, Support and Recover from COVID-19 Act
(Budget Measures) -File: L-1100-055
Recommendation:
1.That Report PLN 27-21 of the Director, City Development & CBO, regarding theimplications for the City of Pickering on the changes to the Conservation Authorities Actand the Planning Act arising from Bill 229, Protect, Support and Recover from COVID-19Act (Budget Measures), be received.
Executive Summary: The Province has been reviewing the Conservation Authorities Act (CA Act) since 2015. In June 2019, the More Home, More Choice Act, 2019 (Bill 108), made a
series of amendments to the CA Act regarding programs, services and enforcement
provisions. Most recently, significant amendments were made to the CA Act through Bill 229,
Protect, Support and Recover from COVID-19 Act (Budget Measures), which received royal assent on December 8, 2020. Related changes were also made to the Planning Act.
At Pickering’s Council Meeting of February 22, 2021, Council requested that staff report back on the implications of the legislative changes to the City (as per Council Directive Memorandum
–Resolution #524/21).
As such, staff have reviewed the amendments to the CA Act and the Planning Act, and concludes there are no direct implications on the City as a result of these changes. Staff has prepared a chart with the key legislative changes to the CA Act and Planning Act and have
provided comments on them for Council’s information (see Staff Comment Chart, Attachment #2).
Financial Implications: The recommendations of this report do not present any financial implications to the City of Pickering.
Report PLN 27-21 May 25, 2021
Subject: Changes to the Conservation Authorities Act and the Planning Act Page 2
Discussion:
1.Purpose
This report responds to Resolution #524/21 from the February 22, 2021 Council meetingregarding Correspondence from the Director of Planning, Regional Municipality ofDurham, dated January 22, 2021, regarding Bill 229, Protect, Support and Recover fromCOVID-19 Act (Budget Measures) – Changes to the Conservation Authorities Act and
the Planning Act (see Directive Memorandum – Resolution #524/21, including
Correspondence (Corr. 10-21) – Covering Letter and Commissioner’s Report#2021-INFO-1, dated January 8, 2021, Attachment #1). In addition to receiving thecorrespondence, Pickering Council referred the correspondence back to staff to reviewand report back on the impacts to the City of Pickering of the legislative changes.
2.Background
Since 2015, the Province has been reviewing the Conservation Authorities Act (CA Act).Of particular concern was the core mandate of conservation authorities, and to improvepublic transparency, consistency, and accountability in the operation of conservationauthorities (CAs). A series of amendments were made in 2017.
In June 2019, the More Home, More Choice Act, 2019 (Bill 108), made another series of
amendments to the CA Act. Some amendments were not proclaimed including the sectionsspecifying the 4 areas of core mandatory programs and services of a CA, and sectionssetting out conditions for the provision of non-mandatory programs and services for amunicipality by a CA.
Following these 2019 amendments, the Province continued to consult on the core
mandate, and matters of transparency, consistency, and accountability with CAs. Thiswork culminated in Bill 229, with included changes to the CA Act and a related changeto the Planning Act. Bill 229 received Royal Assent on December 8, 2020. Amendmentsrelating to the mandated and non-mandated services of a CA, although further amendedby Bill 229, remain un-proclaimed.
3.Comments
Bill 229 was posted on the Environmental Registry of Ontario (ERO) on November 5, 2020.The Bill was associated with a Provincial financial/budgetary statement, so the EROposting was for information purposes only and not to elicit comments.
Nevertheless, a number of public agencies and stakeholders, including the Region of
Durham, submitted comments to the Province. Regional Council provided comments tothe Province on Bill 229 through Report #2020-P-26, dated November 25, 2020 (seeRegional Report #2020-P-26, Attachment #3). The Region’s Report was written whilethe Bill was being debated in the Legislature. At that time, Pickering staff had reviewedthe contents of the Region’s Report and generally concurred with the concerns outlined
in Sections 6.2 and 7 of the report.
Report PLN 27-21 May 25, 2021
Subject: Changes to the Conservation Authorities Act and the Planning Act Page 3
However, prior to the proposed legislation passing third reading and Royal Assent, the
Province made a series of final changes to Bill 229. The Regional Commissioner of
Planning and Economic Development provided an overview of the changes to Bill 229 in Report #2021-INFO-1 (which was the subject of Corr. 10-21).
As most of the changes were directed at how CAs conduct business, the recourse applicants have with decisions CAs make, and improved clarity about their funding,
staff finds there to be no direct implications for the City. A summary of the key changes to the CA Act and the one change to the Planning Act, and staff’s comments regarding associated impacts to the City of Pickering, are contained in a Staff Comment Table (see Attachment #2).
Attachments:
1. Council Directive including Correspondence (Corr.10-21) – Covering Letter and Commissioner’s Report #2021-INFO-1 2. Staff Comment Table
3. Regional Report #2020-P-26
Prepared By: Approved/Endorsed By:
Déan Jacobs, MCIP, RPP Catherine Rose, MCIP, RPP
Manager, Policy & Geomatics Chief Planner
Kyle Bentley, P. Eng. Director, City Development & CBO
DJ:ld
Recommended for the consideration of Pickering City Council
Marisa Carpino, M.A.
Chief Administrative Officer
Attachment #1 to Report #PLN 27-21
Legislative Services Division Clerk’s Office Directive Memorandum
March 1, 2021
To: Kyle Bentley Director, City Development & CBO
From: Susan Cassel City Clerk
Subject: Direction as per Minutes of the Meeting of City Council held on
February 22, 2021
Corr. 10-21 Gary Muller, Director of Planning The Regional Municipality of Durham
Re: Bill 229, Protect, Support and Recover from COVID-19 Act (Budget Measures) – Changes to the Conservation Authorities Act and Planning Act
Council Decision Resolution #524/21
A copy of the original correspondence is attached for your reference.
Please take any action deemed necessary.
Susan Cassel
Copy: Chief Administrative Officer
1.That Corr. 10-21, from Gary Muller, Director of Planning, the RegionalMunicipality of Durham, dated January 22, 2021, regarding Bill 229, Protect,Support and Recover from COVID-19 Act (Budget Measures) – Changes to the
Conservation Authorities Act and Planning Act, be received; and,
2.That Corr. 10-21 be referred to the Director, City Development & CBO, forreview and a report back to Council on the associated impacts to the City ofPickering no later than the April 26, 2021 Council Meeting.
REc ,IT eC vY eOr:-P/CKERfN oJanuary 22, 2021 GJAN 2 Fi 2021
CLERK'S OFFICEMs. S. Cassel
City Clerk
City of Pickering
One The Esplanade
The Regional Pickering, ON L 1V 6K7 Municipality
of Durham
Planning and Economic Re: . Bill 229, Protect, Support and Recover from COVID-19 Act Development Department
Planning Division
(Budget Measures) - Changes to the Conservation Authorities Act and Planning Act, File: L 14-45
605 Rossland Rd. E. Level4 Ms. Cassel, enclosed for your information is a copy of Commissioner's
PO Box623 Report #2021-INFO-1 that was provided to Regional Councillors on Whitby, ON L 1 N 6A3 Canada January 8, 2021.
905-668-7711 Should you have any questions or wish to discuss the report, please 1-800-372-1102
Fax: 905-666-6208 contact Colleen Goodchild, Manager Policy Planning and Special
planning@durham.ca Studies, at 905-668-7711 ext. 2580.
durham.ca Yours truly,
Brian Bridgeman, MCIP, RPP
Commissioner of Planning and
Economic Development Ciary Muller
Gary Muller, MCIP, RPP
Director of Planning
GM/mr
Encl.
100% Post Consume
If this information is required in an accessible format, please contact 1-800-372-1102 ext. 2564
The Regional Municipality of Durham
Information Report
From : Commissioner of Planning and Economic Development
Report: #2021-INFO-1
Date: January 8, 2021
Subject:
Bill 229, Protect, Support and Recover from COVID-19 Act (Budget Measures) -
Changes to the Conservation Authorities Act and Planning Act, File: L 14-45
Recommendation:
Receive for information.
Report:
1. Purpose
1.1 On December 8, 2020, Bill 229, Support and Recover from COVID-19 Act (Budget
Measures) received Royal Assent. The purpose of this report is to provide an
update on the final version of Bill 229, in particular Schedule 6 related to the
Conservation Authorities Act and Planning Act.
2. Previous Reports and Decisions
2.1 The following Regional staff reports related to conservation authority matters have
been provided to Council over the last three years:
• Bill 139, Building Better Communities and Conserving Watersheds Act,
2017, and associated supportive documents, Report #2017-INFO-79.
• Proposed amendments to the Conservation Authorities Act and associated
regulations, Report #2019-P-27.
· • Durham's Response to Bill 108, Ontario's Housing Supply Action Plan,
2019 and related Regulatory Proposal Changes, Report #2019-A-22.
Page 2 of 5
• Bill 229, Protect, Support and Recover from COVID-19 Act (Budget
Measures) -Changes to the Conservation Authorities Act and Planning
Act, Report #2020-P-26.
• In relation to the above report, Regional Council at its meeting on
November 25, 2020 passed a resolution requesting that Schedule 6 to Bill
229 be removed.
3. Overview of Changes
3.1 Changes were made to Bill 229 during its review by the Standing Committee of
Economic and Financial Affairs in early December, prior to the legislation passing
third reading and Royal Assent. The following sections provide highlights of the
changes made to Schedule 6 -Conservation Authorities Act (CA Act) and
consequential amendments to the Planning Act.
3.2 Section 14 of the CA Act was amended to ensure that at least 70 per cent of the
members of a conservation authority (CA) board that are municipal councillors.
3.3 Section 14 was also amended to provide the Minister with authority to exempt
CAs from the 70 per cent rule.
3.4 While the first version of Schedule 6 of Bill 229 included the ability for the Minister
to appoint an additional member to a conservation authority Board from the
agricultural sector, the final version of Bill 229 included restrictions of voting power
for the agricultural representative. They will not be able to vote on matters related
to:
• enlarging an authority's area of jurisdiction ;
• a decision to amalgamate a CA with another CA;
• a resolution to dissolve a CA; and
• budgetary matters.
3.5 The final version of Bill 229 removed the proposed clause that directed municipal
representatives on CA Boards to act on behalf of their municipalities, and not on
behalf of the CA. Concerns had been raised regarding the implications of such a
clause, that such a clause would severely limit a Board member's fiduciary
responsibility to the authority.
3.6 Section 17 of the CA Act has seen further amendments related to the appointment
of chairs and vice-chairs and rotating amongst municipalities. The amendment
Page 3 of 5
ensures that a member appointed to the CA Board by a particular participating
municipality cannot be appointed to succeed an outgoing chair or vice-chair
appointed to the CA Board by the same participating municipality. The Minister
now has the ability to grant permission to the CA/municipality to allow a Chair or
Vice-Chair to hold office for more than two consecutive terms, and for the rotation
to be augmented.
3.7 Section 28 (Permits) of the CA Act was further revised to add a provision related
to permits issued where there is a Minister's Zoning Order (outside of the
Greenbelt Plan Area). The change requires a CA to grant permission to an
applicant to carry out a development project if a Minister's Zoning Order has
authorized the development. As revised, the CA's permission may be granted
subject to conditions specified by the CA, to mitigate effects on control of flooding,
erosion, dynamic beaches or pollution or conservation of land, health and safety
as a result of the damage or destruction of property. The conditions may be
subject to a review by the Minister, or they may be appealed to the Local Planning
Appeal Tribunal. Where CA permission is granted, the permit holder must enter
into an agreement with the CA, where circumstances warrant, in order to
compensate for ecological and other impacts that may result from the
development project.
3.8 The "Entry Without Warrant" sections of the CA Act were revised to clarify wording
related to notices and conditions; however, the changes further restrict when CA
officials can enter a property without a warrant to check for compliance. The
restriction requires reasonable grounds that the contravention is causing, or is
likely to cause, significant damage in addition to the other conditions that were
being imposed.
3.9 The permissions in the CA Act related to issuance of Stop Work Orders and
enforcement tools were re-introduced through Bill 229, including penalties for
offences under Section 28 of the Act. These changes still require supporting
regulations that have yet to be released.
3.10 Additional regulations to be developed under the CA Act were added, including
but not limited to:
• prescribing budgetary matters;
• respecting the process CAs must follow when preparing a budget and
the consultations that are required;
Page 4 of 5
• providing for rules and procedures governing meetings at which
budgetary matters are discussed, including the quorum for such
meetings and the rules respecting voting on budgetary matters;
• governing transitional matters related to Bill 229 itself, particularly
related to permits for development projects enacted by MZOs; and
• governing Minister's reviews and appeals to LPAT of Section 28 permits
and specifying circumstances in which a review may not be requested,
or an appeal may not be made.
3.11 Section 26 of the Planning Act was further amended to allow for CAs to continue
to participate in LPAT proceedings when an appeal is related to a prescribed
natural hazard risk, or if the CA is an applicant for land division {consent) in a
matter under appeal. A transition policy was also introduced that permits CAs to
continue as a party to an appeal until the appeal is disposed of.
4. Relationship to Strategic Plan
4.1 This report aligns with/addresses the following strategic goals and priorities in the
Durham Region Strategic Plan:
a. Under the goal of Environmental Sustainability, Priority 1.3: to protect,
preserve and restore the natural environment, including greenspaces,
waterways, parks, trails, and farmlands;
b. Under the goal of Environmental Sustainability, Priority 1.4: demonstrate
leadership in sustainability and addressing climate change.
4.2 This report also aligns with/addresses the Durham Community Climate Adaptation
Plan, which focuses on building resilience to climate change impacts.
5. Conclusion
5.1 On December 8, 2020 Schedule 6 to Bill 229 was approved by the province
despite a request by Regional Council that it be removed from the Bill. Upon
review, a number of the new changes to the Conservation Authorities Act are fair
improvements. However, the changes that are of concern are related to those
that allow the Minister of Natural Resources and Forestry to assume control over
the CA's permit granting function and the ability to appeal permit decisions to the
Local Planning Appeals Tribunal. It is too early to know how these changes will
impact development in Durham Region. Staff will continue to monitor and report
back as may be necessary.
Page 5 of 5
5.2 Regional staff will also work with the Region's five conservation authorities to
determine changes to current practice as a result of the changes to the CA Act
under Bill 229.
5.3 A copy of this report will be provided to the Area Municipalities for their
information.
5.4 This report has been prepared in consultation with Corporate Services -Legal
Services.
Respectfully submitted,
Original signed by
Brian Bridgeman, MCIP, RPP
Commissioner of Planning and
Economic Development
Page 1 of 6
Staff Comment Table Attachment #2 to Report #PLN 27-21
Key Changes to the Conservation Authorities Act Implications for the City of Pickering
1. Objects
The objects of CAs have been revised from:
“providing programs and services designed to further the conservation,
restoration, development and management of natural resources other than oil, gas, minerals and coal” to:
“providing programs and services only if they are prescribed by regulation for delivering programs and services they currently are
authorized to deliver under the Conservation Authorities Act over the
area over which they have jurisdiction, namely:
• Programs and services related to the risk of natural hazards;
• Programs and services related to the conservation and
management of lands owned and controlled by the CA;
• Programs and services related to the CA’s responsibilities and functions as a source protection authority under the Clean
Water Act, 2006; and
• Programs and services related to the CA’s responsibilities and functions under an Act prescribed by regulation.”
When proclaimed, and subject to new regulations not yet available, this amendment
has the effect of focusing the scope of CAs
mandatory programs and services. CAs will be able to continue to provide non-mandatory municipal programs and services. However, if financing by the participating municipality is
necessary for a CA to provide that non-
mandatory program or service, the CA and the municipality must enter into an agreement that meets the criteria set out in the Act and regulations.
2. Agreements for Non-Mandatory Programs and Services
The Minister of Natural Resources and Forestry (MNRF) is enabled, by regulation, to establish standards and requirements for the delivery of non-mandatory programs and services.
The City has been aware since the 2017
amendments to the CA Act that, at some point in the future, an agreement between each CA and the City for the delivery of non-mandatory programs and services at a fee for service basis will be established.
Page 2 of 6
Key Changes to the Conservation Authorities Act Implications for the City of Pickering
3. Aboriginal or treaty Rights
A legal provision has been added to the Conservation Authorities Act
related to aboriginal and treaty rights under the Constitution. Such a
non-derogation provision would recognize that nothing in the Act would rescind or diminish the existing aboriginal and treaty rights recognized and affirmed by Section 35 of the Constitution.
No implications for the City.
4. Powers of Authorities
The authority of CAs to expropriate lands has been removed, but a CA
could still request the Province or a municipality to expropriate lands.
Where expropriation of land for a CA project is
required, the expropriation would need to be
undertaken or authorized through an agreement with the relevant municipality. TRCA indicated that this provision is rarely used, and as such it has no concerns with the removal of this power.
5. Duty of Authority Member
The final version of Bill 229 removed the proposed clause that initially directed municipal representatives on CA Boards to act on behalf of their municipalities and not on behalf of the CA (such clause would have severely limited a Board member’s fiduciary responsibility to the
CA).
This is a positive return to the previous wording of the CA members’ duty. Since there is no change to the specific clause, there is no implications for the City.
6. Requiring Permit in Regulated Area to be Issued where Minister’s Zoning Order in Place
CAs are required to issue a permit for development where a Ministerial
Zoning Order has been granted on lands outside of the Greenbelt, with
the CAs’ permit issuance being subject to conditions specified by the CA. The conditions may be subject to a review by the Minister, or may be appealed to the Local Planning Appeal Tribunal (LPAT).
No implications for the City. However, staff recognizes the important role of CAs in processing applications within regulated areas
and applying their expertise.
Page 3 of 6
Key Changes to the Conservation Authorities Act Implications for the City of Pickering
7. Members of the Authority
Section 14 of the CA Act was amended to ensure that at least 70 percent
of the members of a CA board are members of a municipal council but
the Minister, upon application by a participating municipality, may grant permission to select less than 70 percent of its appointees to a CA from among the members of the municipal council, subject to such conditions or restrictions as the Minister considers appropriate.
No immediate action is required from the City. Current members will complete the remaining duration of their appointments.
8. Authority Membership
The MNRF is enabled to appoint a member to the CA from the agricultural sector, but the agricultural representative will not be able to vote on matters related to: enlarging a CA’s area of jurisdiction; a decision to amalgamate a CA with another CA; a resolution to dissolve a CA; and budgetary matters.
No implications for the City.
9. Chairs and Vice Chairs of Board
CA chairs and vice-chairs are required to rotate every 2 years between different municipalities, and a member appointed to a CA Board by a particular municipality cannot be appointed to succeed an outgoing
chair or vice-chair appointed to the CA Board by the same participating municipality.
However, in terms of Section 17 of the CA Act, the Minister, upon application by a CA or participating municipality, may grant permission to the CA or participating municipality to, subject to such conditions or
restrictions as the Minister considers appropriate:
• appoint a chair or vice-chair for a term of more than 1 year or to hold office for more than 2 consecutive terms; or
• appoint as chair or vice-chair of the CA a member who was appointed to the CA by the same participating municipality that appointed the outgoing chair or vice-chair.
Where the City has a council member that holds a chair or vice chair position on the CA Board, this change would have implications in terms of any proposed re-appointment to such position
by the Minister.
Page 4 of 6
Key Changes to the Conservation Authorities Act Implications for the City of Pickering
10. Levy Appeals
All municipal levy appeals will now be heard by the LPAT (The CA Act
previously provided that certain levy appeals were heard by the LPAT
and others by the Mining and Lands Tribunal).
It is too early to know if this new requirement will expedite or cause greater delays in decisions regarding municipal levy appeals,
given LPAT’s increased mandate and current workload.
11. Planning Act Appeals
CA may no longer appeal land use planning decisions independently
or to act as a party to an appeal at the LPAT except where the appeal
relates to a prescribed natural hazard risk or if the CA is an applicant for land division in a matter under appeal.
The CA’s appeal and party status rights for existing hearings remain intact (i.e., for the Pickering Harbour Company hearing).
The City can still consult a CA regarding the specifics of an appeal or request a CA to provide expertise on behalf of the City at the
LPAT.
12. Provincial Oversight
The MNRF has the ability to issue an order to take over and decide an application for a permit under section 28 (Permits for works in Regulated Areas) of the CA Act in place of the CA (i.e., before the CA has made a decision on the application).
It is too early to know the implications for the City.
13. Provincial Oversight
Where the minister has taken over a permit application or is reviewing a permit decision by a conservation authority, allow an applicant to appeal directly to LPAT where the minister fails to make a decision
within 90 days.
No direct implications for the City, except that the newly introduced permit appeal process to LPAT may cause even more delays and red tape in the development approval process.
Page 5 of 6
Key Changes to the Conservation Authorities Act Implications for the City of Pickering
14. Provincial Oversight
Allow an applicant, within 30 days of a conservation authority issuing a
permit, with or without conditions, or denying a permit, to request the
minister to review the conservation authority’s decision. In addition to the provision to seek a minister’s review, provide the applicant with the ability to appeal a permit decision to LPAT within 90 days after the conservation authority has made a decision.
Same as number 13 above.
15. Fees for Programs and Services
Provide permit applicants with the ability to appeal permit fees charged by a conservation authority to LPAT.
Where a permit is cancelled, allow the permit holder to appeal the cancellation to LPAT within 90 days.
Allow applicants to appeal directly to LPAT where a CA fails to make a
decision on section 28 permit applications within 120 days.
Same as number 13 above.
16. Accounting Practices
CAs are required to follow generally accepted accounting practices. No implications for the City.
Page 6 of 6
Change to the Planning Act Implications for the City of Pickering
1. Exclusion of CAs as Public Body
Section 1(2) of the Planning Act is amended to remove the CAs as
“pubic bodies” under the legislation. This means the CAs will not be
able to independently appeal or become party to an appeal as a public body for Planning Act matters to the LPAT.
Requests to appeal by the CAs will now be coordinated through the Provincial “One Window” approach, with comments and appeals
coordinated through the Ministry of Municipal Affairs and Housing. This is usually used for Official Plan Reviews and Amendments.
It is not clear whether the CAs will retain their ability to appeal a decision that adversely
affects land that it owns.
The City can still consult a CA regarding the specifics of an appeal or request a CA to provide expertise on behalf of the City at the
LPAT.
Attachment #3 to Report #PLN 27-21
If this information is required in an accessible format, please contact 1-800-372-1102 ext. 2564
The Regional Municipality of Durham
Report
To:
From:
Report:
Date:
Regional Council
Commissioner of Planning and Economic Development
#2020-P-26
November 25, 2020
Subject:
Bill 229, Protect, Support and Recover from COVID-19 Act (Budget Measures) –
Changes to the Conservation Authorities Act and Planning Act, File: L14-45
Environmental Registry of Ontario Posting #019-2646, Conservation Authorities Act,
R.S.O. 1990, Bulletin
Environmental Registry of Ontario Posting #013-5018, Modernizing conservation
authority operations - Conservation Authorities Act
Recommendation:
It is recommended to Regional Council:
A)That Report # 2020-P-26 be endorsed and submitted to the Minister of Environment,
Conservation and Parks, and the Minister of Natural Resources and Forestry as
Durham Region’s response to Schedule 6 – Conservation Authorities Act, including
the consequential amendment of the Planning Act, of Bill 229, Protect, Support and
Recover from COVID-19 Act. Key recommendations are that the province:
i)Reconsider the passing of Schedule 6 of Bill 229, Protect, Support and Recover
from COVID 19 Act;
ii)Work with the conservation authorities and municipalities to address their
concerns related to the proposed amendments to the Conservation Authorities Act
and the Planning Act, and then make a subsequent determination whether these
changes need to be made;
4
Report #2020-P-26 Page 2 of 13
iii)Fund any non-mandatory programs or services that the Ministry of Natural
Resources and Forestry puts forward in regulation, for the province’s purposes, so
that the funding commitment does not become the responsibility of the CA
municipal funding partners;
iv)Have the CA Act specify that municipally elected officials appointed to the
conservation authority Board of Directors must be representatives from the
municipal corporations who are responsible for providing the funding to the
conservation authority;
v)If Bill 229 with Schedule 6 is passed, provide a transition period until December
2022 to enable coordination of CA-municipal budget processes; and
vi)Recognize the province’s long-standing partnership with the conservation
authorities and provide conservation authorities with the tools and financial
resources they need to effectively implement their watershed management role.
B)That a copy of this report be forwarded to Durham’s MPPs, Conservation Ontario,
the Region’s five partner conservation authorities and the area municipalities.
Report:
1. Purpose
1.1 The purposes of this report are to:
•provide background information on the Conservation Authorities Act and
associated Planning Act changes introduced on November 5, 2020 through
Bill 229, Support and Recover from COVI-19 Act (Budget Measures);
•acknowledge the various Items of Correspondence received regarding this
topic from the conservation authorities in Durham; and
•Recommend a Regional position regarding the Conservation Authorities
Act and Planning Act changes contained within Bill 229.
2.Previous Reports and Decisions
2.1 The following Regional staff reports related to conservation authority matters have
been provided to Council over the last three years:
•Bill 139, Building Better Communities and Conserving Watersheds Act,
2017, and associated supportive documents, Report #2017-INFO-79.
5
Report #2020-P-26 Page 3 of 13
•Proposed amendments to the Conservation Authorities Act and associated
regulations, Report #2019-P-27.
•Durham’s Response to Bill 108, Ontario’s Housing Supply Action Plan,
2019 and related Regulatory Proposal Changes, Report #2019-A-22.
3. Background
3.1 The Conservation Authorities Act (CA Act) was passed in 1946 in response to
extensive flooding erosion, deforestation and soil loss resulting from poor land,
water and forestry management practices. The stated purpose of the CA Act is to
provide for the organization and delivery of programs and services that further the
conservation, restoration, development and management of natural resources in
watersheds in Ontario. The Act outlines the process to establish, fund, dissolve,
amalgamate and operate a Conservation Authority (CA). The Act has been
updated several times.
3.2 The purpose of a conservation authority is to deliver a local resource
management program at the watershed scale for both provincial and municipal
interests. In addition to this core purpose, conservation authority programs
contribute to achieving outcomes of many provincial and municipal (both upper
and lower tier) priorities including: protection from flooding hazards, ensuring
healthy Great Lakes, sustainable growth, protection and restoration of natural
heritage (biodiversity), outdoor recreation, health and tourism, outdoor and other
environmental education curriculum, water quality and quantity, as well as,
environmental monitoring and reporting. There are 36 CAs in Ontario, the majority
of which are in southern Ontario.
3.3 There are five CAs within Durham Region. The names of the five CAs together
with approximate areas within Durham where the CAs have jurisdiction, the
names of the Regional Council representatives who sit on the respective CA
Boards (19 in total), and the local councillors who sit on the respective CA Boards
(6 in total) are listed below:
•Toronto and Region (TRCA) – Pickering, the majority of Ajax and a portion
of Uxbridge, (Councillors Dies, Ashe and Highet);
•Central Lake Ontario (CLOCA) – Whitby, Oshawa, portions of Ajax and
Pickering, and the western portion of Clarington, (Councillors Lee
Marimpietri, John Neal, Nicholson, Pickles, Leahy, Mulcahy, Roy, Mayors
Barton and Mitchell; Councillor Chapman is the Chair of the CLOCA
Board);
6
Page 4 of 13 Report #2020-P-26
−Clarington is represented locally by Councillors R. Hooper (Vice-
Chair), J. Jones and C. Traill
•Ganaraska Region (GRCA) – the eastern portion of Clarington, (Councillor
Joe Neal);
−Clarington is represented locally by Councillor M. Zwart
•Kawartha Region (KRCA) – the majority of Scugog, portions of Brock and a
small portion of Uxbridge, (Councillor Smith);
−Clarington is represented locally by Councillor R. Hooper
−Scugog is represented locally by Councillors D. Kiezebrink and A.
Ross
•Lake Simcoe Region (LSRCA) – the majority of Brock and Uxbridge, and
the western portion of Scugog, (Mayors Bath-Hadden, Drew and Barton).
3.4 Regional staff have a close working relationship with each of the five CAs within
Durham. In 1996, the province delegated the Provincial Plan Review function to
Durham through a Memorandum of Understanding. To carry out these
responsibilities, the Region subsequently entered into a Partnership Memorandum
with its five CAs to coordinate the discharge of their responsibilities with respect to
natural heritage and hazard land protection. The Partnership Memorandum has
been updated and renewed twice since that time.
3.5 CAs also play key role in the implementation of source protection planning in
partnership with municipalities that supply water to reduce risks to drinking water.
These roles were established in the Clean Water Act in 2006. All five CAs in
Durham are engaged in their roles as a Source Protection Authority.
3.6 In 2007, Regional Council approved an accountability framework related to
Regional Funding of Conservation Authorities. Currently the Region provides
funding to the five CAs under the following programs:
•Operating Programs – expenses are apportioned to single/upper-tier
member municipalities within the watershed based on their respective
relative share of assessed values as outlined in legislation.
•Special Benefitting – funding for projects/initiatives that do not benefit all
single/upper tier municipalities within their watershed. Costs are
apportioned only to the municipalities in the watershed that benefit from the
specific project/initiative.
•Land Management – while not required through legislation, the Region,
beginning in 2018, opted to provide annual funding to each of the five
conservation authorities for land management costs.
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•Special Funding – Conservation Authorities have the opportunity each year
to submit a special funding request for expenses outside of those listed
above. These special funding requests are reviewed individually and
considered through the Region’s annual business planning and budget
process.
•Fee for Service – The Regional also provides funding to various
Conservation Authorities for specific fee for service initiatives.
3.7 The Conservation Authorities Act has been the subject of review since 2015.
3.8 Through the Made-in-Ontario Environment Plan released in November 2018,
the Province committed to a further review of CAs.
3.9 In June 2019, the More Homes, More Choice Act, 2019 (Bill 108) included
amendments to the Conservation Authorities Act. Many of the amendments from
Bill 108 regarding programs and services and enforcement provisions are yet to
be put into effect through regulations. These regulations are expected to clarify
the scope of CA mandates including enhanced enforcement powers to address
un-proclaimed provisions and ongoing community concerns.
3.10 Through Bill 108, the CA Act was expected to be amended by:
a. Defining the four core mandatory programs and services by regulation, as
follows:
•Programs and services related to the risk of natural hazards.
•Programs and services related to the conservation and management of
lands owned or controlled by the conservation authority.
•Programs and services related to the conservation authority’s duties,
functions and responsibilities as a source protection authority under the
Clean Water Act, 2006.
•Programs and services related to the conservation authority’s duties,
functions and responsibilities under an Act prescribed by the regulations.
b.Allowing other programs and services outside of the four core areas to be
prescribed as mandatory programs and services.
c.Requiring, after a specified date, that municipal financing of a non-mandatory
program and service can only continue, where the conservation authority has
entered into a financing agreement with its participating municipalities.
d.Establishing a transition period and process for conservation authorities and
municipalities to identify, through an inventory, which of their programs and
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services are mandatory and then to enter into agreements for the non-
mandatory programs or services that are financed in whole or in part at the
municipal level.
e. Enabling the minister to appoint an investigator to investigate or undertake an
audit and report on a conservation authority.
f.Clarifying that the duty of conservation authority “board” members is to act
with a view to furthering the objects of the conservation authority (i.e., the
range of activities the conservation authority is allowed to undertake).
Conservation Authorities Act Review
3.11 Over the past 18 months, the province undertook further consultation on the core
role of CAs in:
a.preparing and protecting against the impacts of natural hazards;
b.maintaining and managing conservation lands; and
c.drinking water source protection under the Clean Water Act.
3.12 Following provincial multi-stakeholder consultation held in February 2020, the
Ministry of Environment, Conservation and Parks issued an online survey to the
public (survey closed March 13, 2020), that solicited input on the conservation
authority model as it related to transparency, permitting, oversight, Board
composition and partnership. The survey also asked for feedback on mandatory
programs and services within the areas described above. Regional staff
submitted a response to the survey on March 13, 2020 (see Attachment #1).
Feedback gathered through the public survey has not been made public to date.
3.13 The province moved forward with a proposal to further define the core mandate of
CAs through Bill 229, Protect, Support and Recover from COVID-19 Act (Budget
Measures) on November 5, 2020, resulting in changes to both the Conservation
Authorities Act and Planning Act. At the time of writing this report, Bill 229 was
being debated at its Second Reading. The changes are expected to receive third
reading in the legislature imminently.
3.14 Later this fall, the province intends to further consult on regulatory proposals
(mandatory programs and services, section 28 natural hazards, section 29
conservation authority lands, agreements and transition) under the CA Act which
will be posted on the Environmental Registry for public consultation.
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4.Bill 229, CA Act Changes
4.1 Key proposed amendments to the CA Act under Bill 229 are to:
a.Revise the range of activities CAs can undertake to reflect the categories of
programs and services that the CA is currently authorized to deliver under the
CA Act for its jurisdiction namely:
•Programs and services related to the risk of natural hazards.
•Programs and services related to the conservation and management of
lands owned or controlled by the authority, including any interests in
land registered on title.
•Programs and services related to the authority’s duties, functions and
responsibilities as a source protection authority under the Clean Water
Act, 2006.
•Programs and services related to the authority’s duties, functions and
responsibilities under an Act prescribed by the regulation.
b.Enable the Minister of Natural Resources and Forestry to, by regulation,
establish standards and requirements for the delivery of non-mandatory
programs and services.
c.Remove the authority for CAs to expropriate land. CAs could still request
either the Province or a municipality to expropriate land.
d.Require participating municipalities to appoint municipal councillors as CA
members and that municipally appointed members generally act on behalf of
their municipalities. This proposal is a change from the un-proclaimed Bill 108
provision that stated members were to act with a view to furthering the objects
of the CA.
e.Enable the Minister to appoint a member to the CA from the agricultural
sector. This has been a longstanding request from our agricultural
community. However, other interest groups and Indigenous groups have not
been granted this type of appointment.
f.Require that CA chairs and vice-chairs rotate every two years between
different participating municipalities.
g. Require CAs to follow generally accepted accounting principles.
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h. Require CAs to make key documents publicly available online (e.g., meeting
agendas, meeting minutes, municipal member agreements, annual audits), if
this is not current practice.
i.Require CAs to submit to the Minister, a copy of any agreements related to
participating municipalities appointments to its Board of Directors.
j.Remove the transition provision for CAs to develop administrative by-laws.
k.Authorize the Minister to issue a binding directive to a CA, and/or, with the
approval of the Lieutenant Governor-in-Council, to appoint a temporary
administrator to assume control of all of a CA’s operations, following an
investigation, where it is revealed that a CA has failed to comply with any
provincial law. Further, the Minister would be authorized to issue binding
directives to the administrator.
l.Change the jurisdiction of appeals of CA decisions and municipal levies to be
heard by the Local Planning Appeal Tribunal (LPAT), as currently in some
circumstances, certain appeals are heard by the Mining and Lands Tribunal.
m.Enable the Minister to delegate some duties and powers under the CA Act,
for example, to a ministry official.
n. Authorize the Minister to issue an order to take over and decide an
application for a permit under section 28 of the CA Act in place of the CA (i.e.
before the CA has made a decision on the application).
o.Allow an applicant, within 30 days of a CA issuing a permit, with or without
conditions, or denying a permit, to request the Minister to review the CA’s
decision.
p.Where the Minister has taken over a permit application or is reviewing a
permit decision by a CA, allow an applicant to appeal directly to LPAT where
the Minister fails to make a decision within 90 days.
q.In addition to the provision to seek a Minister’s review, provide the applicant
with the ability to appeal a permit decision to LPAT within 90 days after the
CA has made a decision.
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r.Where a permit is cancelled, allow the permit holder to appeal the
cancellation to LPAT within 90 days.
s.Allow applicants to appeal directly to LPAT where a CA fails to make a
decision on section 28 permit applications within 120 days.
t.Provide permit applicants with the ability to appeal permit fees charged by a
CA to LPAT.
u.Amend the un-proclaimed “warrantless entry” provisions from Bill 108 to
change the circumstances when an entry to land may be exercised by a CA
so that such circumstances are similar to entry powers now in effect in section
28 of the Act.
v.Remove the un-proclaimed provisions from Bill 108 for CAs to be able to
issue stop work orders and retain the current enforcement tools, such as
laying charges and potential court injunctions.
w.Add a legal provision to the CA Act related to Aboriginal and Treaty Rights
under the Constitution to state that nothing in the Act would repeal or detract
from the existing Aboriginal and Treaty Rights recognized and affirmed by
section 35 of the Constitution.
5.Bill 229, Planning Act Changes
5.1 A supportive amendment to the Planning Act is also proposed through Bill 229
that would add CAs to subsection 1 (2) of the Planning Act. This amendment, if
passed, would exclude the CAs in the definition of public bodies under the
Planning Act. This change would restrict the CA’s ability to appeal certain
planning decisions to LPAT, or become a party to an appeal before LPAT.
6.Concerns raised by Durham’s partner conservation authorities related to
Bill 229
6.1 Durham’s partner CAs have raised several concerns related the proposed
changes to the CA Framework. These concerns are detailed in their respective
Items of Correspondence included in the November 25, 2020 Regional Council
agenda.
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6.2 The concerns include, but are not limited to the following:
Overall
a.Without having regulations to support the legislative amendments to the CA
Act and Planning Act, there may be unintended consequences, inefficiencies
and ineffective outcomes.
Programs and Services
b.The programs and services are subject to standards and requirements that
may be prescribed by future regulation. Without the benefit of having the
regulatory proposal, it is unknown if the regulations could restrict what CAs
are able take on for their member municipalities, or to further the purpose of
the Act.
Appointments/Board of Directors
c.Removal of the responsibility for CA Board members to represent the
interests of the CA is contrary to the watershed management approach and
fiduciary duty principals, which is the foundation of corporate governance.
d.Term limits of only two years restricts the CA’s ability to align these terms with
the terms of municipal elected officials and could pose issues where
municipalities sit on multiple CA Boards.
Section 28 Permit Changes and Appeal Process
e. Changes to the CA role in regulating development permitting, and planning
application appeal processes, could add costs and ultimately have significant
impacts on Ontario's ability to provide flooding and natural hazards
management/ protection and drinking water protection.
f.The permit appeal provisions that would be considered by the Minister of
Natural Resources and Forestry and/or the LPAT could create more costs,
delays and red tape, resulting in decisions that would not benefit from local
watershed data and expertise.
Enforcement Tools
g.The amendments weaken a CA’s ability to enforce regulation and could
directly impact a CA’s ability to: address permit compliance objectives; and
address significant impacts to natural hazards and features.
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Planning Act Changes
h.The amendments limit a CA’s ability to be an independent party at the LPAT
to protect landholdings, fulfill mandate and ensure watershed science and
data are being applied to planning and land use decisions.
7.Regional Comments
7.1 CAs are local watershed management agencies that deliver services and
programs to protect and manage impacts on water and other natural resources in
partnership with the federal and provincial governments, municipalities,
landowners and other stakeholders. CAs have an important role in supporting the
conservation, restoration, development and management of natural resources,
and protecting Ontarians from floor risk and other water-related natural hazards.
7.2 Ontario’s Flooding Strategy, released by the province in March 2020, outlines key
roles for municipalities and conservation authorities in identifying and managing
flood risk based on evidence and science, and for directing development away
from flood-prone areas. The changes proposed in Bill 229 could undermine the
leadership and local decision-making role that the province assigns to
municipalities and CAs in its Flooding Strategy.
7.3 It is recommended that the province reconsider the passing of Schedule 6 of Bill
229, Protect, Support and Recover from COVID 19 Act. Schedule 6 introduces a
number of changes and new sections to the CA Act and Planning Act that would
significantly limit the conservation authorities’ role in watershed management and
the mitigation of flooding impacts on communities (e.g. through their role the
development permitting process and engaging in the review and appeal of
planning applications). These changes would reduce environmental oversight of
development proposals and could lead to increased environmental hazard risk,
including flooding.
7.4 The province should also be requested to work with the conservation authorities
and municipalities over the next few months to address their concerns related to
the proposed amendments to the CA Act and the Planning Act, and then make a
subsequent determination whether these changes need to be made.
7.5 It is recommended that if any non-mandatory programs or services that the
Ministry of Natural Resources and Forestry are put forward in regulation for the
province’s purposes, these programs and services should be funded by the
provincial government, so that the funding commitment does not become the
responsibility of the CA municipal funding partners.
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7.6 With regards to municipal representation on CA Boards, it is recommended that
the CA Act specify that municipally elected officials appointed to the conservation
authority Board of Directors must be representatives from the municipal
corporations who are responsible for providing the funding to the conservation
authority.
7.7 If Bill 229 is passed in its current form, including Schedule 6, it is recommended
that a transition period until December 2022 be provided to enable coordination of
CA-municipal budget processes.
7.8 Lastly, the province should be requested to recognize their long-standing
partnership with the conservation authorities and provide them with the tools and
financial resources they need to effectively implement their watershed
management role.
8.Relationship to Strategic Plan
8.1 This report aligns with/addresses the following strategic goals and priorities in the
Durham Region Strategic Plan:
a.Under the goal of Environmental Sustainability, Priority 1.3: to protect,
preserve and restore the natural environment, including greenspaces,
waterways, parks, trails, and farmlands;
b.Under the goal of Environmental Sustainability, Priority 1.4: demonstrate
leadership in sustainability and addressing climate change
8.2 This report also aligns with/addresses the Durham Community Climate Adaptation
Plan, which focuses on building resilience to climate change impacts.
9. Conclusion
9.1 The Region of Peel is considering a similar resolution to express their concerns
with the proposed changes to the CA Act and Planning Act at their November
Council meeting.
9.2 This report has been prepared in consultation with the CAO’s Office – Strategic
Initiatives, Works Department, Finance Department, and Corporate Services –
Legal Services.
10. Attachments
Attachment #1:CA Act Survey, Regional staff response, March 13, 2020
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