Law Times

Law Times • OctOber 27, 2014 Page 13 www.lawtimesnews.com www.lawtimesnews.com Development restrictions Lawyer struck by conservation authorities' 'super powers' by arshy mann Law Times W hile there are 36 conservation au- thorities in On- tario, many peo- ple don't realize their land may fall under the mandate of one of these agencies. "Conservation authorities wield a considerable amount of power," says Mark McMackin, a Toronto-based real estate lawyer. The conservation authorities are subject to the Conservation Authorities Act. It gives them broad leeway to further their mandate of conserving, restor- ing, and managing natural re- sources in Ontario. In 2013, Ontario conservation officers made almost 300,000 enforcement contacts, gave out close to 10,000 warnings, and laid natural resource charges in about 6,500 instances. Conservation authorities also have the power to engage in searches and seizures with a warrant and make arrests. When it comes to protecting wetlands and adjacent properties, conservation authorities have a broad legislative mandate. Despite that fact, some land- owners and developers may not realize they have to answer to a conservation authority before de- veloping on lands they own. "One of the big problems is that conservation authorities reg- ulate all of these lands that people don't know they regulate," says Michael Harris, a lawyer with MacIvor Harris Roddy LLP in Thunder Bay, Ont. Harris defended an applica- tion against one of his clients by the Lakehead Region Conserva- tion Authority. His client had bought a farm that bordered the Kaministiquia River in 1985. At the time, he didn't know the conservation au- thority protected his lands. "A lot of people are surprised to find out that part or all of their property falls under the regula- tion of the conservation author- ity," says Harris. In 2008, the conservation au- thority alleged Harris' client had engaged in wetland and stream development work during a pe- riod of time when that sort of ac- tivity is restricted. Despite the fact Harris' client had engaged in that sort of work in previous years, the conserva- tion authority took him to court. The conservation authority eventually got a judge to grant a permanent injunction against Harris' client to restrain him from developing that land with- out a permit. However, the judge ruled the conservation authority couldn't force Harris' client to remediate work he had done in the past be- cause it was aware at the time that he was doing it. In fact, the judge concluded it looked as if the con- servation authority had even al- lowed some of the work to happen. Harris says that during its in- vestigation, the conservation au- thority took extraordinary steps in pursuit of his client. "They even hired a plane to f ly over his property to take pic- tures," he says. Aerial photography is a tac- tic used by other conservation authorities. In Maitland Valley Conservation Authority v. Cran- brook Swine Inc., a case between a conservation authority and a company that wanted to build a liquid pig manure storage tank, the court dealt with aerial images presented as evidence. "This storage tank would be located in rural Ontario and, spe- cifically, in a location where, it is clear from the exhibits, including aerial photographs, there are obvi- ous wetlands environmental con- cerns," wrote the judge in that case. McMackin has dealt with con- servation authorities on multiple occasions. He recalls one case where his client was building a Health Can- ada-approved medical marijuana facility. His client built a bridge on protected lands without first getting the approval of the local conservation authority. Even though his client had got- ten environmental assessments done, the conservation authority wasn't happy when it found out. "They shut the whole project down," says McMackin. "It was pretty incredible in that regard." McMackin was struck by the powers conservation authorities have to make or break a project. "They have super powers, al- most bigger than game wardens or police officers in some re- spects," he says. According to McMackin, it's not uncommon for conservation authorities to seize the business records of the people and compa- nies they're investigating. Harris says it's becoming more common for conservation author- ities to intervene in various aspects of applications and permitting. "For example, a friend of mine has a small creek running through his yard and if he wants to make any changes or do any work, that's under the regulation of the conservation authority," he says. McMackin's advice to anyone developing on lands regulated by a conservation authority is to tread carefully. "Follow the letter of the law because it can be incredibly costly and incredibly onerous," he says. 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