Developers and landowners should review new or existing permit applications that involve conservation authorities' consent or approval, in the wake of new legislative changes that will affect certain permitting powers and related appeals processes.
On November 5, 2020, the Ontario government introduced a number of changes to the Conservation Authorities Act (the "Act") that will significantly impact the role of conservation authorities when it comes to issuing and appealing permits. These changes were introduced as Schedule 6 to the omnibus bill titled Bill 229, Protect, Support and Recover from COVID-19 Act (Budget Measures), 2020 ("Bill 229"), which has recently received Royal Assent.
Key changes include:
- certain conservation authorities' abilities being re-delegated to the Minister of Natural Resources and Forestry (the "Minister");
- the creation of certain "mandatory permits", which conservation authorities must issue if the enumerated conditions are met; and
- a new appeals process that impacts, and possibly complicates, the permitting process.
Who are Conservation Authorities?
Conservation Authorities ("CAs") are local management agencies that deliver services and programs to protect water and other natural resources, often working with the government and landowners to do so. There are thirty-one CAs operating in southern Ontario and five in northern Ontario.
Re-Delegation of Powers
The amendments introduced by Bill 229 will change the activities that CAs have typically engaged in. The revisions will likely have a significant impact on CAs' core programs and services.
One of the more contentious aspects of Bill 229 concerns its amendments to section 28 of the Act, which would grant authority to determine permit applications to the Minister in place of a CA. Section 28 of the Act describes certain prohibited activities and developments in areas that could be prone to flooding and erosion. In the prior version of the Act, permits for developments that affect these areas were appealable to the Minister, if the CA refuses a permit or issues a permit subject to certain conditions.
The new amendments allow the Minister to review a CA's decision regarding issued or refused permits, and after conducting such a review, to confirm or alter the decision, or take any action the Minister considers appropriate, including issuing the permit. After making such an order, the Minister may issue the permit instead of the CA. Some authorities have commented that these added powers could be used to bypass CAs to go straight to the Minister for approval. Further, the amendments also allow for a decision of the Minister to cancel a permit to be appealed to the Local Planning Appeal Tribunal (LPAT).
Notably, the new amendments make certain permit applications mandatory, in that if the applicant meets the enumerated criteria, the CA must issue the permit.
For example, Bill 229 adds new section 28.0.1, which applies to applications submitted to CAs for permission to carry out development where certain zoning orders have been made, the lands in question are not located in a Greenbelt Area as designed under section 2 of the Greenbelt Act, 2005, and any other requirements as may be prescribed. The amendments make it mandatory for a CA to approve of such development, if these three enumerated conditions are met. Further, even if a CA imposes other conditions on these mandatory permits, the applicant can seek Ministerial review of any such conditions. The Minister may then confirm, vary or remove the conditions altogether, or take any other action that the Minister sees fit. The permit holder may also seek recourse from any additional conditions from the LPAT in place of the Minister. As such hearing, the LPAT may also vary, remove or add to the conditions as it deems appropriate.
New Appeal Powers to LPAT
In addition to granting applicants with alternatives to seeking and appealing their permit applications, the new provisions also allow applicants to appeal a CA's decision to the LPAT if the Minister does not conduct a review within 90 days. Furthermore, if the CA fails to make a decision with respect to an application within 120 days after the application is submitted, the applicant may appeal the application directly to the LPAT.
Currently, the Mining and Lands Tribunal is responsible for adjudicating these matters under the Act. While shifting this function to LPAT may result in increased delays and added "red tape" before these matters can be heard, it may also introduce a development approval "lens" into an otherwise technical appeal process.
Composition of Boards
Bill 229 also amends the composition of CA boards. Firstly, the revisions ensure that at least 70% of CA appointees are selected from among the members of a municipal council. Additionally, Bill 229 will allow municipalities to apply to the Minister if they wish to select less than 70% of their appointees from members of the municipal council, subject to any conditions or restrictions the Minister considers appropriate.
Other Notable Changes
Finally, it is worth noting that new amendments to the Act would allow the Minister to take certain actions after reviewing a report on an investigation into a CA's operations. The changes would allow the Minister to order the authority to do anything to prevent or remedy non-compliance with the Act, and also to recommend that the Lieutenant Governor in Council appoint an administrator to take over the control and operations of that authority.
The amendments affecting sections 27 and 28, respecting the LPAT's replacement of the Mining and Lands Tribunal, and the permitting and appeals' processes described above, came into force on December 8, 2020. The other discussed changes come into force on a day to be proclaimed by the Lieutenant Governor.
In light of the changes to permitting/approvals that Bill 229 will introduce, developers and interest parties that deal with permitting applications should re-evaluate applications that involve CAs, as they may be submitted for another party's approval, or alternatively may be appealed through a different authority. Fasken's Planning and Development Team would be pleased to review any such applications and/or questions you may have.
 Bill 229, Protect, Support and Recover from COVID-19 Act (Budget Measures), 2020, 2nd Sess, 42nd Leg, Ontario, 2020.
 Conservation Authorities Act, R.S.O. 1990, c. C. 27, s. 28.