Clandestine Conservation Authority Reprimanded by Court

This article by Gordon Turcotte first appeared as a two-part series in the Landowner Magazine in the April/May 2013 and June/July 2013 editions. What follows is a summary of Mr. Turcotte’s story. For the full story, visit

This article describes the abuse of Ontario citizens by Crown Agents. It is an examination of Court-discovered “insidious erosion” of respect that provincial agencies now nurture towards the people they serve. It is about unlawful entry; illicit warrants; “clandestine” behavior and a disturbing breach of trust exhibited by agents in a position of perceived authority. What follows is an account of events experienced by landowners who simply cleared an access lane on their 200-acre vacant bush lot in rural Ontario.

On a Saturday morning in December of 2009, the two landowners stopped their work as they were confronted by a stranger coming out of the woods. Without hesitation, the indignant intruder demanded to see a work permit. Puzzled, the landowners asked the intruder for his name but were ignored. They then informed the intruder that he was trespassing on private property and requested he depart.

The following Monday morning the landowners were again confronted by two different men at the property, one of whom was surveying the land with survey gear. After subjecting the landowners to a verbal barrage of scolding and regulatory offences pertaining to the work undertaken, upon demand, the intruders identified themselves as Regulations Officers with the local Conservation Authority. Three years of harassment later, the owners were served a summons to appear in Court for committing offences pursuant to Regulations made under the Conservation Authorities Act (CAA).

The charges stemmed from a complaint-driven investigation of the access work done on the property and to this day, there is no public record of the person or persons responsible for filing the complaint.

Stressed by these events, the landowners decided to defend against the charges and retained counsel. Upon review, it was concluded to challenge the legality of the Conservation Authority’s evidence under Section 8 of the Charter of Rights and Freedoms Act and a motion to examine the events leading up to the charges was requested and accepted. At the hearing, the examining Justice scrutinized the legislation, the landowners and the Agents. The Court found that the Regulation’s Officer’s overall testimony was evasive, inconsistent and disconcerting, leaving the Court to discount the Agency’s credibility. More importantly, the Court found that the evidence admitted was illicit. Thus, the evidence was denied and subsequently all charges dropped. However, the proceeding cost the landowners approximately $10,000 in legal fees (a request to determine the cost to taxpayers is under consideration).

In delivering the ruling, the examining Justice expressed a deep concern for the seriousness of the agent’s attitude and behaviour, a direct reflection on the culture of the Conservation Authority and its governance. Numerous infractions were revealed including unlawful entry, illegal obtainment of a warrant, failure to inform and breach of the CAA. The Justice made special note of the Agent’s “clandestine” behavior and the conducting of an illegal investigation to deceive the Court system into issuing a search warrant.

It is revealing that these abuses by Crown Agents are not isolated incidents; similar cases are appearing across the province at an alarming rate. Conservation Agents are entering private property and claiming custody over private lands by quoting Section 28 of the CAA which states: “28.(1) Subject to approval of the Minister, an authority may make regulations applicable in the area under its jurisdiction…”. The problem arises in the interpretation of jurisdiction; private property is within an Authority’s watershed (jurisdiction), but not within its power and authority. When a Conservation Authority wishes to carry out a project on private property, the Act clearly states that they must enter into an agreement with the landowner.

Root Causes

To understand why we are experiencing a plethora of government agents operating ultra vires (outside authority), we need to step back a few years and examine legislative changes. Prior to 2003, changes to the Municipal Act were designed to create efficiencies in municipal government. However, after 2003, those efficiencies never materialized because the provincial government’s economic plan challenged all ministries, departments and agencies to “find new revenue models” to fund government programmes and initiatives. This ‘new economy’ directive broadened bureaucratic initiative beyond the democratic mandate of providing essential services. The directive set the stage for clandestine behaviour and coupled with legislative changes that followed, enabled the insidious erosion of rights. As a result, the administration now extracts equity from private property as a source of income.

In the landowners’ case, the problem arose when the Ministry of Natural Resources (MNR) applied a wetlands mapping ‘overlay’ to a portion of the their land. Immediately, both the Conservation Authority and Municipal Planners entitled themselves to rights and interest in that private property. Conservation Agents trespassed the land at will and the Municipality promptly treated the lands as Environmental Protection zoning. A rezoning process was instigated, despite protest from the landowners.

In their struggle to understand what was happening to their property rights, the landowners were informed by Municipal Planners that when MNR publishes a wetlands overlay, the local Council is required to rezone the lands (MNR on the other hand, informed the owners that the Municipality is NOT required to rezone the lands). Indignant, the planners then told the landowners that they could apply for an Official Plan Amendment (OPA) to change the zoning to suit their needs, accompanied by a $50,000 fee to override the EP zoning change (this despite the fact that the proposed EP zoning change had not yet passed through the planning process and unto the official plan. During that exchange, they were also told that a municipality is not bound to written law but rather governed by the Provincial Policy Statement (PPS)).
Unbelievably, the shenanigans didn’t stop there; in studying the Ontario Wetlands Evaluation System (OWES), the landowners discovered that private property now had a better chance of acquiring provincially significant designations after implementation of the Land Use Policy of 2005. For example, in their case an environmental planner who once worked for the MNR and now works for the municipality had done a desktop evaluation of their property using descriptive terms like “most certainly would be” and “likely” to facilitate Provincially Significant status. To expedite the designation, a “complexing” rule was employed to shortcut the OWES evaluation process and transfer Provincially Significant status to previously determined not-Provincially Significant areas (a.k.a. “puddle jumping”). In this mock desktop evaluation “process”, aerial surveys and a fly-over were used with no regard, consultation or permission from the landowner. It is interesting to note that the Courts have determined aerial photography and fly-overs infringe on Section 8 of the Charter of Rights and Freedoms when used as evidence at trial without authority or warrant. Further, the OWES manual instructs wetlands evaluators to obtain entry permission from landowners prior to conducting a ground-truth survey. This confers that use of aerial photos and fly-overs without prior consent is also illicit under the Trespass to Property Act.

Regardless of convention used, government mapping designations on private land does not transfer rights, title or interest back to the Crown; it is intended for information purposes. Equally, the practice of using mapping designations to cause zoning changes on private land is of itself a clandestine and insidious extortion of civil and property rights. This is because within a property’s Letters Patent, the rights to use of the land (fee simple) was disposed of by the Crown (known as a Disposition) and protection guaranteed thereof. Ownership in fee simple (which means absolute and without limitation) is further protected by the Conveyancing and Law of Property Act, which includes all economic rent and equity.

The erosion of these cornerstone rights dates back to 2004 where prior reference within the Planning Act used the wording “shall have regard to” the PPS. This promoted a cooperative approach between Queen’s Park, Ministries, Boards, Authorities and landowners. However, through the Strong Communities Act of 2004, the wording was changed to “shall be consistent with” the PPS, giving rise to Soviet-style Central Planning at Queen’s Park. Planning has now become a juggernaut throughout the province, despite the promise of efficiency and prosperity in the Places to Grow Act of 2005. The massive growth in planning has failed to produce any tangible advantage for the people of Ontario. In contrast, it has created layers of bureaucracy, analysis paralysis, economic hardship and the insidious erosion of heritage. Most everything now has to go to Court and only the wealthy (i.e. Corporations) can afford the process of upholding rights.

This sad account is a direct result of the newly forged link between the Provincial Policy Statement, the Planning Act and ‘sustainable development’ ideals (the underlying principle of which demands state dominion over all land). The negative effects witnessed here are direct cause to immediately re-establish respect between the Crown and private property owners by repealing the changes made to the Planning Act, and further repealing the Places to Grow Act (2005). For be aware – Planning Departments are very busy developing more by-laws, maps and additional constraints that accrue power and authority to the bureaucracy, the net effect of which will strip all equity, rights and interest from private property. To make matters worse, Municipal Councils are ill-equipped to confront the barrage of ‘environmental science’ used to sway public opinion that is pandering to the wealthy and special interest groups. The net effect is the degradation of our heritage of a free, equitable place to grow.

Read the full story…

Ontario. Yours to discover.