The Docket – Conservation Authorities Part 2 – Wetlands Defined by Jeff D. Bogaerts

Published February 1, 2019

Good Morning your Worship, my name is Bogaerts, initial J. I am representing Mr. Smith, line number 1 on your Worships docket this morning.

The following is an excerpt from an actual trial transcript.

John Doe, you are charged between the 6th day of July, 2017, and the 1st day of September, 2017, at or near 12345 Highway 11, Part Lot 32, Concession 5, Not Happy Township, County of Angry, did commit the offence of changing or interfering with a wetland by removing soils or dumping fill material thereon in violation of Section 5 of Ontario Regulation 150/06, thereby committing an offence contrary to Section 28(16) of the Conservation Authorities Act R.S.O. 1990, c.C. 27, as amended, contrary to Conservation Authorities Act, R.S.O. 1990, Section 28(16).

How do you plead to this charge, sir?

JOHN DOE:  Not guilty.

COURTROOM CLERK:  Thank you, sir.  John Doe, you are charged between the 6th day of July, 2017, and the 1st day of September, 2017, at or near 12345 Highway 11, Part Lot 32, Concession 5, Not Happy Township, County of Angry, did commit the offence of undertaking development or permitting another person to undertake development, in particular, dumping or removal of material without obtaining an authorization of a development permit in or on the areas within the jurisdiction of the Grand River Conservation Authority, contrary to subsection 2(1) of Ontario Regulation 150/06, thereby committing an offence contrary to subsection 28(16) of the Conservation Authorities Act, R.S.O. 1990, c.C. 27 as amended, contrary to Conservation Authorities Act R.S.O. 1990, Section 28(16).

How do you plead to this charge, sir?

JOHN DOE:  Not guilty.

COURTROOM CLERK:  Thank you.

The names were changed for personal identification reasons. The charges read into the record are the most common charges people find themselves up against. To continue my series of articles on the Conservation Authority Act, (“CA’s”) I want to start with the charges and walk through the process of why the CA’s think they have the power over property they think they have.

I also want to use this series of articles as education for everyone, including myself, to what do we, the people of Ontario, want the CA’s to do for us and our Province.

What do I want? I want the CA’s to go back to the basics, back to the original mandate given to them by the Legislature at Queens Park, which was, in a few words, protect property from flooding. Build dams, storm holding ponds, clean up rivers, keep them clear of natural debris, such as trees blown over into creeks and rivers that act like a dam. Clean out the beaver dams, help maintain and monitor municipal drains, remove tires and other human debris. Mapping of flood plains.

What I do not want the CA’s to do, is interfere in Agriculture, building permits, boat docks, flood prevention by property owners, engineers, additions to a home, replacements of homes burned down, landscaping, changing of the original house footprint to another footprint on the same property, hunting and fishing camps, heritage designating and setback restrictions on Private Land without compensation to name just a few current interferences.

Building permits cannot be issued without the authorization of the local CA’s. There is one rumor I have not been able to substantiate, is a building inspector that was charged by a CA for issuing a building permit without the CA’s authorization. I hope this is not true. If anyone can substantiate this, please email me.

Majority of people in Ontario live in high density urban areas, tall apartment buildings and massive subdivisions with huge smart centres. Therefore, majority of people do not see the damage the CA’a are doing in areas that they are not required to be involved with. The direction that CA’s are going, is to have full control and authority over every square inch of Ontario land regardless of ownership. This is not acceptable to myself nor anyone I have had conversations with about CA’s.

Let me reiterate, CA’s are necessary in Ontario, however, they are now so out of control as to be detrimental. During the massive flooding in the Ottawa Valley in 2018, the CA’s cut their permit fees in half to help those affected by the flooding. This was more than massive flooding, it was a massive insult to property owners who were flooded. Property owners have to pay for a permit to fix their properties damaged by flooding, really! I am not talking about a building permit, I’m speaking to a CA permit. How many people who were damaged never needed a permit when their house was originally built but now, they need one to fix their home. This was a massive money grab and an opportunity by CA’s to map and control property. What I always look for when a news story is aired about flooding, is where the trucks and personal are from the local CA. I have never seen a CA truck, personal, sand trucks, sand bags, and or CA personal sand bagging during the flood. However, they are Johnny on the spot if you do anything without a permit from them on your property.

What is a “wetland”? Well let’s dig into this question, pull it apart and analyze it.

What does the law say?

The definition of a “wetland” from the Conservation Authority Act, Section 28, subsection 25.

Definitions

Section 28 (25),

“wetland” means land that,

(a)  is seasonally or permanently covered by shallow water or has a water table close to or at its surface,

(b)  directly contributes to the hydrological function of a watershed through connection with a surface watercourse,

(c)  has hydric soils, the formation of which has been caused by the presence of abundant water, and

(d)  has vegetation dominated by hydrophytic plants or water tolerant plants, the dominance of which has been favoured by the presence of abundant water,

but does not include periodically soaked or wet land that is used for agricultural purposes and no longer exhibits a wetland characteristic referred to in clause (c) or (d). (“terre marécageuse”)  1998, c. 18, Sched. I, s. 12.

There are four paragraphs that define a “wetland”. You may find another definition however the accepted definition is found within the body of the Act. Therefore, this definition that must be used.

When reading the definition, on first read, one may interpret that any one of the four paragraphs defines a wetland. This is not the case. All four paragraphs must be present for the definition to be true. Why is this? At the end of the paragraph (c), there is the word “and”. Using “and” in this manner is a “coordinating conjunction”.

A “coordinating conjunction”, joins words, phrases and clauses together. The function of “and” is to join (a), (b), (c) and (d) together into one definition. That is, all four paragraphs must be true for a “wetland” to exist. If any one or more of the four paragraphs cannot be proven, then a “wetland” does not exist on your land.

Have you had any part of your property designated as a “wetland”? Have you been told that your next door neighbour has a “wetland” and now you have to stay 120 metres back from the edge of the “wetland” to do anything on your land? If so, now is the time to start the process to determine is all four paragraphs hold true. If not, then there is no “wetland”.

Please join the Ontario Landowners Association. The next project we are embarking on is to analyze the Conservation Authority Act and bring it into what the intent of the Legislature was when it was first introduced 80 years ago. Also, what the people want it to be, not self-interest groups.

The CA’s need to have a specific job. They are not the Building Code, Endangered Species, Agriculture, Hunting and Fishing, Private Parks and Campgrounds, your Private dock at the cottage or your cottage itself and a host of other areas that is not their mandate.

The next article is “development”. What it is and what it is not.

These are all my matters before the court this morning your Worship, may I be excused? Thank-you your Worship.

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