Friday, January 17, 2003

                                                   AN OPERA UP-DATE REPORT

to

THE GEORGIAN TRIANGLE DEVELOPMENT INSTITUTE

Delivered by R.A. (Bob) Fowler, OPERA Secretary

Thank you for Institute funding support of the Ontario Property and Environmental Rights Alliance since inception of that network partnership almost 8 years ago. And for this opportunity to review the significance of OPERA activities in and for the development industry.

As most of you know, OPERA is a provincial coalition of trade associations and citizen groups with a shared mandate “to protect, and entrench in law, the rights and responsibilities of landowners against arbitrary restrictions and decisions of government”. We know of no other special interest organization where rights balanced by responsibility not only confirm its purpose but appear in its founding mission statement as well.

In assessing the effects of senior government policies that affect title and use of privately owned land, OPERA functions chiefly as a research facility, communication hub and, where indicated, a  voice of united protest. The coalition has no Board of Directors, paid staff or personal expense accounts. A volunteer Secretary reporting to bi-annual member conferences at Peterborough manages its activities. It doesn’t solicit or accept government funding, it relies entirely on member subscriptions to cover its annual budget and it seeks professional assistance pro bono from among its supporters when preparing written and oral submissions. To monitor land use issues OPERA representatives attend public meetings, government conferences and private sector workshops.     

Mail “packages” summarizing our current initiatives are distributed quarterly to member organizations and to several trade groups interested in government decrees affecting land use and market value. These include Environment Probe, Ontario and/or Canadian Cattlemen Association, Ontario Federation of Agriculture, Ontario Real Estate Association and the Land Resources Partnership, which represents about 90% of Alberta’s private landowners. Last year a newsletter called “Up-Date”and an Internet web site were introduced to strengthen OPERA’s communication network. For the month of December, 2002 some 2685 “hits” confirmed web page visits by various government agencies, universities, media, special interest groups, journalists and landowners.

So much for background. As you are well aware, a core ingredient of development activity is land, preferably land with a minimum of statutory encumbrances on title. It is those encumbrances and the processes from which they take form or substance that occupy OPERA’s time and attention. So your Association & the coalition of which it is an important part have a great deal in common.

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To illustrate that linkage lets examine 5 legislative minefields OPERA has addressed since I last visited with your Association 2 years ago.

(1st) Among other environmental issues, both government and the public at large have valid concerns about watercourses and fish habitat. These are of critical interest to the development industry as well since either designation can restrict or prohibit otherwise viable projects.  When the Ontario government substantially reduced provincial funding of Conservation Authorities it also downloaded their operational costs to local municipalities.

But, under the Red Tape Reduction Act, Bill 25, the mandate of those particular agencies was broadened from flood plain to watershed planning with a number of regulatory changes quietly inserted. One such defined a watercourse as “any depression in the ground capable of holding water”. Any Conservation Authority with a contract to enforce federal fish habitat regulations could therefore declare a site-specific drainage ditch, frog pond, roof run-off, etc., to be a fish related watercourse and forbid development accordingly.

OPERA’s oral and written argument against these and other questionable Bill 25 clauses to a Standing Committee at Queen’s Park were favorably received but we urge GTDI members to look long and often at Bill 25, especially its posted Regulations regarding Conservation Authorities.

(2cnd) In 1996 Ontario’s Ministry of Natural Resources gifted $600,000.00 to The Nature Conservancy of Canada - an offshoot of its American  parent - to “design programs that would permit the provincial government to acquire additional land for public parks”.

The Natural Heritage Information Center, based in Peterborough, was subsequently launched as a partnership of the Ministry of Natural Resources, The Nature Conservancy of Canada and the Federation of Ontario Naturalists.

This enterprise maintains a vast database, originally designed by The Nature Conservancy in the United States, to identify, monitor &, we suspect, perhaps one day more aggressively regulate all land in Ontario believed to be the potential or actual habitat for endangered plants and animals. The database relies on property data & species sightings reported from many sources including field reports filed by members of the Federation of Ontario Naturalists. Its interesting to note that, several years ago, that organization distributed a pamphlet offering to assist rural municipalities in developing Official Plans “in accordance with Heritage provisions of the Ontario Planning Act”. While the Internet web site of the Natural Heritage Information Center posts general information, there’s no mention there of the total Ontario acreage currently under its watch.

Nor are land characteristics recorded in the data bank available to developers without the requisite password or advance NHIC permission. Over the past 2 years our coalition has advocated increased NHIC transparency and accountability and, to that end, we urge all developers to carefully study relevant file documents currently appearing on the OPERA web page under “Reference Material”.     

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(3rd) OPERA actively participated in the Niagara Escarpment Plan Review from its July, 1999 announcement to its conclusion in 2001. After a number of preliminary discussions with Niagara Escarpment Commission officials, we submitted one written and two oral submissions to the appointed Hearing Officers in which the possible influence of the Review on land use planning and development across Ontario was emphasized. Two of the several concerns we raised in those submissions were: the awarding of “public body” status on the Escarpment to organizations with a conservation mandate supported by Revenue Canada charitable tax status and new Visual Landscape requirements in the Escarpment Planning & Development Act.

While land use by developers is not confined to the Niagara Escarpment, we would point out that the first of these decrees have already migrated  province-wide and we suspect the second won’t be far behind. Indeed, it seems new land planning measures that began in the Niagara Escarpment Plan Area to tighten development control have, in fact, been quietly extended to all of Ontario. Thus, only 5 months after the Niagara Escarpment Plan Review was completed in 2001, a narrowly circulated Ministry of Natural Resources Policy Proposal under EBR Registry No. PB00E6007 listed the first seven “eligibility criteria associated with Community Conservation Lands”as a basis for municipal tax exemption under the Conservation Land Tax Incentive Program. According to that document, a copy of which can be reviewed here this afternoon, there will be more eligibility criteria established as the program unfolds and all will apply to designated land anywhere in Ontario if “owned by a non-profit organization, other than a Conservation Authority”. One criteria defines affected lands as: “areas within or adjacent to a protected area such as a U.N. Biosphere Reserve, Provincial Park, National Park, Conservation Reserve or National or Provincial Wildlife Area that has natural heritage attributes that contribute to the natural heritage objectives of the protected area”.

OPERA alerted 195 southern Ontario rural municipalities to local property tax shrinkage inherent in this proposal. As indicated in one of our member mail “packages”, its implications for developers are equally disturbing. For example a GTDI member attempting to purchase land “adjacent” (whatever that means) to, say, a Wildlife Area for, say, a medical clinic may discover the site is owned by a Non-Government Organization that pays no property taxes, enjoys “public body” status with local municipalities and is almost sure to attach numerous, expensive conditions to any purchase agreement.

By the way, two of the five organizations that successfully lobbied the Ontario government for public body status on the Escarpment are Natural Heritage Information Center partners with the Ministry of Natural Resources. MNR also just happens to be the provincial ministry responsible for the Niagara Escarpment Planning and Development Act. It also transfers a lot of public money to special interest groups with which it associates and, in April, 2002, defined pre-orchestrated conditions under which some of those groups could avoid paying municipal property taxes.

(4th) We come now to OPERA’s long involvement with the federal Species at Risk Act, Bill C-5, and the effect of that legislation on private property. Like many federal statutes, this Act is enforceable under the criminal law powers of Canada’s federal government. 

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Not only are provincial statutes neatly side-lined by this means but convicted offenders under C-5 face a criminal record plus draconian penalties that include fines up to $1,000,000.00 combined with prison terms up to 5 years plus a list of subsidiary punishments that sentencing judges are encouraged to impose. The Act also specifies “strict liability” meaning guilty until proven innocent but allows “due diligence” as a defense, a provision of small comfort for anyone without sufficient resources to cover the huge investigation costs involved. Apart from its frightening legal implications, the Species at Risk Act is designed to restrict or prohibit use of any land, private and public alike, deemed to sustain the existence and/or provide the habitat of endangered plants and animals including insects and bacteria.

A formula for reimbursement of capital and operating losses arising from the legislation is excluded from the Act although it does provide that the Environment Minister may later introduce regulations that allow landowner compensation for extraordinary losses on a case-by-case basis. In 1998 OPERA was an invited participant in a National Accord Workshop where delegates of some 40 Canadian organizations began exploratory discussions of federal legislation for species protection. To that end we’ve since attended many similar conferences, frequently corresponded with federal authorities, distributed Press Releases, initiated a Canada-wide petition to federal Environment Minister David Anderson and explained landowner concerns at many public meetings. Sensitive to reservations about lack of fair compensation to landowners affected by the proposed Act, Mr.Anderson appointed Dr. Peter Pearce to review that specific issue. We were subsequently invited to talk personally with Dr. Pearce and an OPERA delegation consisting of Michael Larkin, Bob Thompson, Dr. James White and myself accordingly traveled to Toronto to meet with him.

On that occasion, our oral and written arguments for including a compensation formula in the Act itself were extensively reviewed and some were reflected in Dr. Pearce’s final report to Minister Anderson. Unfortunately, no mention was made of that extensive, and presumably expensive, Report when Bill C-5 was presented for parliamentary ratification. 

After Bill C-5 passed 2cnd reading in the House of Commons, OPERA was named an accredited witness at the Senate Standing Committee for Environment, Energy & Natural Resources and we were invited to submit to that body written and oral testimony concerning this legislation in Ottawa on November 19th last year.

In all these endeavors OPERA consistently expressed support for Bill C-5 objectives while vehemently protesting its excessive and wrong-headed implementation and enforcement provisions. Transcripts of our submissions to the Senate currently appear on our web site and Committee recommendations on the compensation issue are also found there by posted linkage to the appropriate Senate page. Developers are urged to read these documents as another example of OPERA’s efforts on their behalf.

Although Bill C-5 with no amendments as such received Royal Assent on Dec.12 and is now the law of the land, OPERA’s strong and consistent position on the compensation issue obviously resonated with the Standing Committee as reflected in its recommendations now formally attached to the Bill.

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Let me read 4 of them to you: (1) Fair market value should be a starting point of the measure of compensation (2) Monetary compensation may not always be the most appropriate form of compensation and other forms may be made available (3) It is possible that the implementation of this legislation could cause a major disruption to a person’s livelihood and reduction of their net worth. Consequently, no artificial limits should be placed on compensation (4) Completing due diligence should not be a debilitating burden on farmers and other groups. The government must set out details of what tasks will satisfy due diligence requirements and take steps to ensure that the time and cost be fully compensated  

Could federal Species At Risk legislation affect members of your Association? Absolutely. Lets imagine a developer owns or proposes to purchase raw land on which, say, a single Loggerhead Shrike is living or has been reported by a trespassing bird watcher. Loggerhead Shrikes are perching birds about the size of a robin, pale grey and white in color with a black face They are native to a vast area in North America bounded by Florida on the south and the southern half of Canada on the north. As common as robins in New York state, the Loggerhead Shrike has been declared endangered in southern Ontario, the northern limit of its range, by the Committee On The Status Of Endangered Wildlife In Canada (COSEWIC). Without talons, it impales its prey, usually smaller birds, mice or insects, on thorn trees or barbwire fences for later feeding. Hence it’s other name of “Butcher Bird”. And hence MNR protection of its habitat in Ontario, often-valuable land with human development potential but infested with wild thorn trees.

Bill C-5 decrees that any use of any land designated Loggerhead Shrike habitat, as well as any adjacent property thought to be part of the local shrike range, must accommodate the lifestyle of this feathered migrant. Further, market value reduction and/or collateral losses arising from this arbitrary sterilization of private property will not be compensated unless such losses are “extraordinary” and so proven at landowner expense to Ministerial satisfaction.

And, to re-capture any slippery developer who somehow escapes the federal Species At Risk buzz-saw, a MNR subsidiary called Ontario Bird is ready with provincial species at risk regulations of its own. Such as “any person who approaches a Loggerhead Shrike nest without a permit shall be subject to prosecution and, upon conviction, a fine not to exceed $50,000.00 and 1 year imprisonment”. Our advice to developers; “Never go near any bird nest anytime”.

(5th) In 1996 OPERA was asked to participate in several Policy Advisory Committees of the Ontario government. This entailed an important commitment on the part of several coalition members who traveled each month to attend Committee meetings at Queen’s Park. Their input into the Development Charges Act, the Niagara Escarpment Planning and Development Act, the Municipal Act and Bill 20 was consistent and productive. Indeed, changes first tabled within the PAC program have since contributed to the improved economic climate in which the Ontario development industry operates today and which had, at the time, been stalled under restrictive policies of the Bob Rae government.

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In concluding these 5 representative examples of OPERA activity, let me just add a final comment. About a year ago three OPERA people attended a land use workshop at Puslinch, Ontario sponsored by the Ontario Institute of Professional Agrologists and arranged by one of its long time members, Dr. James White, who is also an active supporter of our coalition. Entitled “Regulating Agriculture - How Much Can Farmers Put Up With”, that seminar attracted several hundred participants representing trade associations, corporations, political entities, municipalities and political parties.

Guest speakers covered a wide spectrum of concerns arising from excessive government regulation that demeans free enterprise, ignores citizen rights and circumvents due process of law in the name of environmental benefit or, that failing, the so-called “public good”. In our opinion, the development industry in Ontario is also a prime target for bureaucratic intervention and we hope the Puslinch audience included some GTDI members who’ve since reported on the scope and content of that informative and revealing workshop.

This afternoon we’ve briefly examined a few regulatory impingements that can frustrate legitimate land development in Ontario. Apart from overlapping federal legislation, there are at present over 3000 separate provincial statutes that affect ownership, use and value of private property in this province. Many of those proscriptions are impartial, useful & necessary. Others are less so. Still others are clearly unsympathetic to human progress, democratic rights and economic activity. Some favor major players in the immensely profitable environmental industry and a few seem associated with attempts to introduce global governance without the consent of the governed.

Nevertheless, despite the frequency and complexity of government land use intervention, the OPERA coalition, with the help, encouragement and generous support of your Association, will continue to speak for the rights and responsibilities of private landowners across Ontario. To that end, an OPERA business card distributed here this afternoon carries the usual contact numbers and our web page address where many of the issues we’ve recently addressed can be found.   

You’ve been a kind & patient audience. If there are any questions, I’ll try to answer them now.