Ontario Government Proposes Easements on Private Property to Support Ontario Trails by Shirley Dolan

Shirley Dolan
Shirley Dolan

Historically, property owners and recreational organizations such as snowmobile clubs have negotiated deals whereby private property is used for the enjoyment of the members of that organization. Now the government wants to get involved! Bill 100, Supporting Ontario’s Trails Act was introduced to the legislature by the Hon. Michael Coteau, Minister of Tourism, Culture and Sport in May 2015. It is now in second reading where it will be debated. If it passes second reading, it will be referred to a Committee, and likely passed into law sometime this year. This Bill proposes to formalize agreements between property owners and recreational organizations through easements – easements that will be registered on title. That means that while you still own the property, use of the property will be controlled by the organization, and to a certain extent, by the government, through regulation.

Those who support the Bill are quick to point out that the property owner does not have to sign an agreement to allow an easement; they can continue with the owner / organization agreements. If this is the case, then what is the purpose of the Bill? It offers nothing for the landowner and everything to the “eligible body”, the organization that will control the easement. If there is nothing in the Bill for the landowner, then why would they want to sign an easement agreement?

It seems that this Bill was many years in the making. Yet many of us were taken by surprise when we learned about it. Many landowners, after having a look at the Bill, have chosen to close their trails and others have promised to do the same if the Bill is not withdrawn.

Section 12 of the Bill defines the easements. There is a list of the “eligible bodies” that may enter into the easement agreement with the landowner and these include conservation authorities, municipalities, aboriginal communities, a school board, a charitable foundation, and entities from the Unites States such as conservation land trusts. The Bill also states that the easement can be assigned to another eligible body, and there is nothing in the Bill to say that the owner has to be notified or considered when the easement is assigned.

Supporters of the Bill say it can be fixed in Committee. The Liberals hold a majority in all Committees; they introduced the Bill. What is the likelihood that the concerns of landowners will lead to real improvements before the Bill is passed? Once it has passed and an easement is signed, the owner could possibly end up in court should any disputes arise.

In a recent court decision, the Virginia Supreme Court sided with a small Virginia winery in a dispute with a high-powered national land trust regarding a conservation easement. The problem started when the vineyard decided to build a farm building to house a creamery, a bakery, and a tasting room on their 200-acre property. Environmentalists expressed concerns that the plans violated the conservation easement on the property, and the property owners were subsequently charged with 14 violations of the conservation easement. In the end, the court ruled overwhelmingly in favour of the winery, but not before years of litigation and financial burden. Too often, the Ontario Landowners Association has seen this type of scenario played out when government agencies seek to control private property through easements, designations, and policy statements. Even when the landowner wins in court, they still lose considerable time and money going through the process.

Some landowners are calling for the withdrawal of Bill 100 and the Ontario Landowners Association agrees that it should be withdrawn.