Letter to Elgin County on inclusion of Natural Heritage Systems Study (ENHSS) into their Official Plan

Published November 1, 2021

By Leith Coughlin, Managing Director, Enpointe Public Affairs

Dear all,

I share this correspondence with you as I believe you may find it valuable.

Many of the point raised are applicable across Ontario as municipalities contemplate their obligations under the Provincial Policy Statement of the Planning Act regarding natural heritage systems’ identification and definition.

While this is specific to Elgin County (where I reside) the background and overall discussion are applicable everywhere.

I welcome any questions, comments, or concerns you may have.

  1. Introduction

Under normal circumstances I would be on top of the progress of the Elgin County Official Plan update; regrettably, delayed items due to the pandemic that are seasonal in nature have consumed my attention.

I provide this letter as a formal signal of EnPointe Public Affairs’ significant concerns regarding the possible inclusion, in whole or in part, of the Elgin Natural Heritage Systems Study (ENHSS) produced in 2019 into an updated County Official Plan.  The study’s methodology, empirical rigour, and scientific defensibility on ecological and legal grounds are untenable in most instances.

  1. Background

EnPointe Public Affairs has over the past six years represented a large constituency of Elgin County’s largest private landowners.  The acreage and the operations they support are crucial to this County’s economy.  Many are significant employers in the various lower-tier municipalities.  Most of the interactions on substantive issues with which EnPointe has been engaged rise to the levels of provincial and federal jurisdictions and the delegated agencies of both.  The need for involvement with Elgin County has been minimal in comparison.

  1. How Ontario Arrived at Natural Heritage Systems Studies

The evolution of natural heritage studies’ origins, as suggested best practices in environmental stewardship in Ontario, began in the late 2000s.  The push to evaluate ecologically significant features in defined regions was rooted in eco-activism voiced by large, often multi-jurisdictional environmental groups.  Significant monetary and political capital was expended by these interests between 2005-2014 to persuade the province to mandate natural heritage systems studies into provincial planning and land-use management regulations and statutes.

As you are aware, revisions to the Provincial Policy Statement (PPS) are a pentennial occurrence.  The government of Dalton McGuinty twice rejected incorporation of NHSS mandates into the PPS between 2005-2013.  The government of Premier Kathleen Wynne however adopted the twice-rejected frameworks for inclusion in the 2014 PPS.  There is scant evidence in the public record that any standards of correctness, efficacy, and/or reasonableness were afforded much weight by the province prior to the 2014 incorporation.

This reality has presented considerable (and avoidable) conflicts for municipalities ever since when attempting to adhere to the 2014 PPS.  The obligations both direct and inferred go beyond the resources and scope upon which small and medium-sized upper-tier municipalities can rely.

The February 2020 PPS retained, without amendment or revision, the 2014 NHSS mandate and stipulations.  EnPointe would be so bold as to declare the current provincial government omitted revision of the NHSS portions of the PPS in error.

Our firm is currently engaged by a multitude of interests across Ontario to provide better alternative options for the province on the NHSS mandate.  EnPointe is also scheduled to advocate on fundamental resets for the Municipal Act and the Planning Act in the latter part of 2022.

EnPointe and its clientele who take interest in these matters support correct, evidence-supported, innovative, procedure-based, and reasonable protection of Ontario’s air, soils, water, and wildlife.  Current Ontario laws and regulations do not rise to these characteristics.

Ontario’s track-record and outcomes in these domains are not positive to date and lack any reliable assessments or metrics.  Two obvious examples are found in the two largest resource and conservation expenditures in the province. The superseded Ministry of Natural Resources and Forestry and the province’s thirty-six conservation authorities have never had performance audits conducted to determine whether their conservation and environmental management goals are being achieved.

Further, in the rare instances where exceptional analysis has occurred, the results have been consistently poor.  The most telling manifested in the 2018 Auditor General of Ontario’s special report into the Niagara Region Conservation Authority.  This was the first and only time a conservation authority in Ontario had been performance audited.  The results were alarming.

I raise these nuances for context and edification.

  1. Applicability in Elgin County

It is EnPointe’s assessment that any reasonable culmination of the ENHSS can follow effectively two courses of action.

The first and most practical would be to limit any application or validity of the ENHSS to public lands only.  This would satisfy the outward intent of the PPS and maintain conformity with the County’s obligations under the PPS.

This course of action would also require, and cannot exclude, effective firewalls to prevent encroachment/encumbrances of features designated on public lands onto privately-owned lands.  EnPointe would also underscore that identification of features on private lands could neither be included nor appended as “information” to inform readers or government reviewing a new Official Plan.  This would be the simplest executable avenue and would enable Elgin to complete its needed Official Plan update.  Sorting out the conflicts obvious in the current NHSS mandate would remain a provincial burden to clarify for the next PPS.

The second avenue would be to abandon the NHSS altogether.  This presents complications for Elgin County council despite our firm’s view that this would ultimately be optimal.

Bad process begets bad policy.  Bad policy produces conflict.  Conflict costs taxpayers and stretches limited municipal resources.

I am not confident a complete rejection would be embraced by a prevailing majority of the councillors seated around County’s hemi-circle; thus, applying a limited application to public lands with no private-land encroachment I suspect would be the most practical compromise.

  1. Review Conditions and Interpretations in Elgin County

Our firm will not become engrossed in debate or public litigation with either staff or council as to whether the ENHSS can be adopted or included in piecemeal fashion.

The ENHSS is not simply a “technical” document as articulated on several occasions publicly by councillors Jones, Ketchabaw, Martyn, and Mennill since 2019.  These interpretations are incorrect and demonstrate significant misapprehension/absence of fluency in the ENHSS and the overall PPS obligations.

Another consideration mentioned by councillors Martyn, McPhail, and Purcell is to include the ENHSS as an appendix to a new official plan for “information” purposes that are undefined.

Neither EnPointe nor our clientele regard this positively; interests in Elgin would rely upon this regardless of its status as ‘authoritative’ or ‘adopted’ or ‘included.’  This view is reinforced by conduct observed in recent years even at County.

In 2015, Elgin County Council deferred adoption (never since reassessed) of the Elgin County Shoreline Management Plan (ECSMP) given the controversial nature of same and, as pointed out by multiple actors (including EnPointe), due to scientific and technical problems identified in the material.

Despite this, Elgin County planning attempted to incorporate technicalities published in the ECSMP in 2018-2019 into recommendations to council on planning considerations.  This was despite a decision three years earlier not to use the ECSMP in county planning or as an acceptable technical framework.

Analogous to the ECSMP, a tacit inclusion of the ENHSS outside public lands in Elgin County, can reasonably be forecast to set conditions for its acceptance and use.  In simple terms: if it lives it will breathe; if it is slain it will die; if it is leashed it cannot run away.

  1. Public Notification and Consultation Incomplete

EnPointe would add that there has been little obvious notification in respect of public input.

County and the seven lower tiers in Elgin maintain direct lines of communication to ratepayers via tax assessments.  EnPointe has frequently observed comments from Elgin County council about inviting public and stakeholder participation but “we hold it and no one comes” (words similar expressed by councillors Martyn and Mennill as recently as the fall 2020).

Publicity on same via print media is ineffective in reaching the majority of local residents. Few subscribe to that media any longer. EnPointe would note that finding any major indications as to County’s intent would require significant investigation by a web-user or citizen – particularly those with limited familiarity with how and available time to access municipal decisions and policies.  Notification of Official Plan updates, potential environmental encumbrances, and any zoning and permitted use(s) changes warrant direct communication with affected ratepayers at a minimum.

We appreciate that Elgin County has formalized a consultative framework.  Why this was done when several other enhanced municipal frameworks were available for adaptation in Elgin is unclear.  Any defence ultimately that ‘adequate’ notification has occurred absent a direct notification to a tax-assessed property owner simply does not hold even when the additional, Elgin-devised consultative framework is taken into account.  There is no substitute for direct correspondence and notification when increased costs, encumbrances/encroachments, and new rules arise.  Jurisdictions in eastern Ontario have felt the impact of citizen backlash in respect of these very considerations since 2015.

  1.  Next Steps and Request for Direction

EnPointe is prepared to make high-level representations on where the flaws exist on the NHSS, on the incomplete rationale behind its regulatory intent, and why controlled, limited application is warranted. We do however require your office’s direction on the intake options with staff as a substantive review and in any public process on broad comments.

EnPointe wishes to be helpful to inform County beyond what is extant to produce a correct and reasonable outcome.  We trust this correspondence will not be viewed as a collateral attack on County’s efforts.

Many of the influencers and personalities that began the ENHSS process are no longer present and the results/recommendations on the table are not organic or native to Elgin County as an institution.  The NHSS mandate is not original to Elgin and rests with the province.  Permitting the influence and impact however is well within Elgin County’s spectrum of control.

I look forward to your direction and any comments or replies you deem warranted.  All are welcome.

Leith R.A. Coghlin

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