This article first appeared in the Landowner Magazine and is reprinted with their permission. It is a great example of the importance of having your Crown Land Patent.
There are 180 species at risk in Ontario. The Endangered Species Act, 2007 is determined to protect those species. The Ministry of Natural Resources (MNR) glossy, colour photo brochure sums up their attitude under “Enforcement”. It reads: “It is illegal to harm or kill threatened or endangered species or damage or destroy their habit. It can result in fines of up to $250,000 for an individual or up to $1 million for a corporation.”
The following is the journey that was taken by Mr. Bev Keall in dealing with the MNR and the assistance that he was given by Brock Napier of the Muskoka Landowners. Both Bev Keall and Ron Renaud are long time quarry operators near Mactier, ON. They both had copies of the contract MNR wanted them to sign. It was early in 2010. The reason for this contract was that about 12 years earlier, when the 400 extension highway was being built, 3 species at risk were discovered in that area: The Blanding Turtle, the Eastern Hog-nosed Snake and the Eastern Massasauga Rattlesnake. The contract outlined in details, their obligations, should they sign.
Brock suggested that a meeting with the MNR would help clarify some questions and this happened on Feb. 9, 2010 in Parry Sound. Although the MNR produced a map of the area’s 2 quarries with dots representing the species found, the MNR admitted that they had not visited the site to verify that the species were still there. Despite this, “I stand by my report” was the frequent answer to some troubling questions as to whether any species were actually on the quarry sites. MNR stated that they could not go on the property without a warrant or permission of the land owner. This was confirmed in their glossy flyer “Municipal activities and the Endangered Species Act (ESA)” which states that “the ESA does NOT authorize MNR staff to enter private land to look for species”. However, if you sign the agreement, they can enter to see if you are complying with it.
After this meeting and reading the contract carefully, Brock advised Mr. Keall that he should not sign the contract. Brock outlined the 3 good reasons for this decision: First, the protection from his Crown Patent Contract which gave him ownership of his land forever with no mention of reserving it for the endangered species. Next was the fact that the MNR did not have any authority to enter private land to look for species. They needed those signed contracts. Lastly, Brock told Mr. Keall that he would have the support of the Ontario Landowners and the Muskoka Landowners.
The MNR were not happy to hear that Bev Keall would not sign the agreement. They threatened the two men with legal action if they did not sign by June 2010. The MNR made a site visit to Bev’s quarry in the summer of 2010 and requested he sign the contract. Bev pulled out his Crown Patent and told him to get off his property. He NEVER heard from the MNR again.
Mr. Ron Renaud contacted a lawyer and the lawyer suggested that he sign the contract, which we understand, he did.
The 13 pages that they had to wade through before getting to the 6 page mitigation plan and agreement part, would make a sane man crazy. Starting with Article 1- “Definitions” and plowing through to Article 16 – “Compliance with Laws” one was left wondering how many man hours and dollars were spent putting together this piece of work. If anyone had any intention of climbing aboard their endangered species train, to help save some animals, that report would have been enough to make them turn and run.
I think the warning bells went off for me when I read in detail how the quarry operators had to ensure that all personnel that worked on the site, including drivers, would have to receive training in identifying the adults, juveniles, neonates and eggs of these endangered species. The quarry operators would have to update their skills on the general biology of the species and any potential threats to it and how to minimize these threats. In the event that any species must be relocated, these qualified members had to also be trained in how to safely handle reptiles and a qualified member would have to be on site at all times when an area was in use. If by chance one of these species was still in the area after 10 years and was spotted, the quarry operator must immediately contact the Ministry by phone or email and stop operations if the animal was in danger. The turtles and snakes, having passed humans on the importance scale, must be allowed to meander on their way in their own time, so one must not disturb them. This unexpected free time would allow the operators of the quarry to get some coffee and sit back and read the paper.
The contract goes on to explain that if a species is injured or found injured the Ministry must be contacted or if unable to reach them, the operator shall obtain veterinary care. The quarry operatory shall also erect reptile-impermeable fences around stockpiles that contain material that may be suitable for nesting. The fences shall be in place for the duration of the nesting season but an opening for removing material can be made if necessary.
When all the training, fencing, observing, recording, removing and trips to the vet are done, you will have the “Monitoring and Reporting Requirements” to complete. The quarry operators shall submit an annual report to the Ministry on or before a specified date affirming that the activities undertaken were in accordance with all the provisions of the Agreement. They are required to monitor the undertaking of the activities at the locations and to assess the effectiveness of a particular plan. Finally, there is the Summary Report which summarizing the effectiveness of all these measures.
The good news is that the Endangered Species Act, 2007 does recognize the importance of this voluntary stewardship by farmers and landowners and states in its brochure that they seem to already know that farmers and landowners are good stewards of the land. One can only hope that they will remember this good stewardship when they hand out the $250,000 fine for cutting our hay before the end of July.
Update: Sadly, Mr. Bev Keall died in the spring of 2012 on March 27, at the early age of 69. Part of his legacy to his family is to know your rights and stand up against government intrusion onto your private property. Mr. Keall was a fine example to all of us as to what we can do together with the help of the Ontario or Muskoka Landowners Associations.