This is Part 5 of Davies Howe LLP’s Bill 23 blog-series, which focuses on the Bill’s changes to the Conservations Authorities Act (the “CAA”). Bill 23 received royal assent on November 28, 2022; however, many of the Bill’s changes to the CAA will not come into effect until a later date.
Bill 23 has introduced a series of legislative and proposed regulatory changes affecting conservation authorities. The Province has stated that the purpose of these changes is to accelerate housing development approvals while continuing to protect people, communities and critical resources.
- Consolidation of the individual regulations of conservation authorities into a single regulation;
- Limiting the role of conservation authorities in granting development permissions;
- Focusing conservation authorities’ role in development application review;
- Removal of the terms “conservation of land” and “pollution” from considerations relevant in permitting decisions;
- Increasing ministerial powers in granting permissions and limiting conditions that conservation authorities may impose on permissions;
- Fee freezes; and
- Streamlining process associated with disposition of conservation authority-owned lands.
Consolidating Conservation Authority Regulations
Currently, a conservation authority is permitted to make regulations applicable to its jurisdiction area to regulate development, interference with wetlands and alterations to shorelines and watercourses. These regulations are subject to the approval of the Minister of Natural Resources and Forestry (the “MNRF”) and generally outline when an authority will grant a permit to regulate development that may interfere with wetlands or perform site alterations to shorelines and watercourses. This has resulted in each of the 36 conservation authorities across Ontario creating their own individual regulations.
Through Bill 23, on a day to be proclaimed by the Lieutenant Governor in Council (the “LG”), each of these regulations will be revoked, and an authority will no longer be able to make its own regulations applicable to its jurisdiction area.
Instead, the Province intends to prescribe a single, new regulation to govern all 36 authorities. Notably, this change effectively re-enacts the section 28 permitting process introduced by Bill 139 – Building Better Communities and Conserving Watersheds Act, 2017, which never came into force.
Limiting the Role of Conservation Authorities in Development Permissions
On a date to be proclaimed by the LG, a new subsection will be introduced to the CAA which proposes to exempt certain development authorized under the Planning Act from requiring a permit under the CAA. This change applies to municipalities prescribed by regulation. A subsection was added to the CAA which grants the LG the authority to prescribe this regulation, including rules governing transitional matters resulting from the new exception.
Exemptions for prescribed municipalities may be subject to conditions and restrictions, also set out by the LG in the regulation. The LG is not obligated to prescribe such conditions and restrictions; however, if the LG does precisely prescribe conditions or restrictions, these criteria must be satisfied to obtain the exemption.
In addition, if a conservation authority refuses a permit where it is the authority in charge of issuing such permit, an applicant may appeal such decision or conditions imposed as part of the permit to the MNRF or to the Ontario Land Tribunal (the “Tribunal”). If the conservation authority does not decide on the application within 90 days after a compliant application is made, the applicant may appeal such non-decision to the Tribunal. Currently, the applicant may not appeal the authority’s non-decision until 120 days have passed. This will change on a day to be proclaimed by the LG.
Focusing Conservation Authorities’ Role of Development Application Review
On January 1, 2023, a conservation authority’s role will be restricted to providing municipal programs or services within its jurisdiction that are related to reviewing and commenting on a proposal, application or other matters that are not made under a prescribed Act. To implement this change, the MNRF has been provided the authority to make regulations prescribing Acts.
The new regulation proposes to prescribe the following Acts under which, a conservation authority would no longer be able to provide municipal programs or services related to reviewing and comment on proposals or applications made under:
- The Aggregate Resources Act;
- The Condominium Act;
- The Drainage Act;
- The Endangered Species Act;
- The Environmental Assessment Act;
- The Environmental Protection Act;
- The Niagara Escarpment Planning and Development Act;
- The Ontario Heritage Act;
- The Ontario Water Resources Act; and
- The Planning Act.
In addition, and as discussed in Part 1 of this blog-series, Bill 23 amended the Planning Act (effective January 1, 2023) to limit the right of conservation authorities to appeal. When acting as a public body, a conservation authority will not be able to appeal a land use planning decision under the Planning Act unless the matters are related to natural hazards policies in provincial policy statements issued under the Planning Act.
Removal of Consideration of “Conservation of Land” and “Pollution”
Previously, when conservation authorities evaluated applications and made permitting decisions, the CAA prescribed certain factors that they must consider, which included any effects the development project was likely to have on the control of flooding, erosion, dynamic beaches or pollution or the conservation of land.
Bill 23 replaced the consideration of the effects on the “control of pollution” and on the “conservation of land”, with the effects on the “control of unstable soil or bedrock”. The other criteria remain the same.
Increasing Ministerial Powers
Bill 23 introduced amendments now in effect on the issuance of permits by conservation authorities where the lands are subject to a Ministerial Zoning Order (“MZO”) or a Community Infrastructure and Housing Accelerator (“CIHA”). As was the case prior to Bill 23, conservation authorities are required to issue permits to lands subject to MZOs. However, this now also applies to lands subject to CIHAs.
The amendments also further restrict the conditions that a conservation authority may impose on such permits by expanding the MNRF’s regulation making authority to, among other things:
- Prescribe conditions on a permit issued;
- Limit conditions on a permit issued;
- Exempt lands or development projects from specific requirements, including entering into compensation agreements with the conservation authorities; and
- Limit the commencement of a development project until a compensation agreement has been entered into with the conservation authority.
On January 1, 2023, a new section of the CAA comes into effect which will permit the MNRF to temporarily prevent conservation authorities from increasing their fees for development permits. This amendment permits the MNRF to direct an authority to “freeze” the amount charged for fees under section 21.2 of the CAA for its programs and services, including reviewing and commenting on planning and development related proposals as well as for permits issued by conservation authorities.
Disposition of Land
Pursuant to the CAA, a conservation authority has the power to acquire any land that it may require by purchase, lease or otherwise, and to sell, lease or otherwise dispose of such land that it acquired. However, if the land was acquired using a provincial grant granted to the authority by the MNRF, the disposition of such land is subject to the approval of the MNRF unless:
- The disposition is for provincial or municipal infrastructure and utility purposes;
- The Province or municipality, or the provincial or municipal agencies, boards, or commissions affected by the dispositions have approved it; and
- The Minister is informed of the disposition by the authority.
This process was amended by Bill 23 in an effort to streamline administrative land disposition, potentially making it easier and cheaper for conservation authorities to dispose of excess lands that may be suitable for housing or other types of development.
Effective on January 1, 2023, the amendments will permit a conservation authority to dispose of MNRF- granted land as long as it provides notice to the MNRF of the proposed disposition at least 90 days before such disposition. No notice is required if the above criteria a), b) and c) are met. If an authority is required to consult the public and post a notice of the consultation on its website, the authority’s notice to the MNRF must describe how the comments received during the public consultation were considered by the authority prior to the disposition.
Finally, if the MNRF receives notice from the conservation authority, it may, within 90 days after receiving notice, direct the authority to apply a specified share of the proceeds of the disposition to support programs and services provided by the authority that support their core mandate as outlined in Ontario Regulation 686/21 made pursuant to the CAA.
The above-outlined amendments introduced by Bill 23 to the CAA will change a conservation authority’s role in the development application process significantly.
If you wish to discuss how this impacts your development application, please do not hesitate to contact the team at Davies Howe LLP.
To learn about Bill 23’s changes to other Acts, check out parts 1-4 of the series as well as the forthcoming part 6, which outlines the final amendments to the Bill made by the Standing Committee before the Bill received royal assent.