May 23, 2001
WRITTEN SUBMISSION
from
THE
to
THE HEARING OFFICERS
Mr. Knox Henry (Panel Chair)
Mr. David Pearson
for
THE 2001
Introduction
The Ontario Property and Environmental Rights Alliance (OPERA) was established in 1994 as a coalition of seven voluntary, not-for-profit ratepayer associations concerned about ownership of real estate and its social, economic and environmental benefits. OPERA’s objective is “to protect and entrench in law the rights and responsibilities of private landowners against arbitrary decisions and restrictions of government”. This mandate gives equal status to “rights” and “responsibilities” and projects the shared belief of our member organizations that land rights are directly connected to land responsibilities and vice versa. We are unaware of any public agency or environmental special interest group that includes a similar promise of accountability and balance in its mission statement.
With that brief introduction, OPERA would like to address selected statements appearing in the six Discussion Papers and proposed Amendments in the current
Comments
Some of our member organizations actively participated in the first Plan Review which lasted from 1990 to 1994. Based on our experience in relation to the establishment of Terms of Reference for the Hearings now at hand, the results of the first Review and our member’s involvement in the approval Hearings for the Plan from 1978 to 1984, we are apprehensive about the outcome of the current proceeding.
Our concerns do not arise from the Hearing process per se but, rather, from the limited scope of this Review. The present Hearings examine only six issues when, in fact, a Review implies assessment of the whole program, the procedures used to implement it, their impacts on the Plan area and the performance of the Niagara Escarpment Commission (NEC) and its staff. The present Review does not consider findings of the 1990-94 Hearing Officers, many of which were ignored or substantially modified in the Recommendations to Cabinet from the supervising Ministry in 1994.
The original Plan Hearings ending in 1984 and the Hearing Officer’s Report from the first Review ten years later both recommended downloading Plan implementation to the local level using compatible zoning by-laws rather than a Development Control system. After both these Hearings, on the published recommendation of the NEC, this basic advice was ignored. Thus we still have a process that Hearing Officers described on Page 52, Vol.1 of their 1983 Report as follows: “the procedure used by the NEC in dealing with Development Control Permits represents a denial of natural justice, even though such was perhaps not intended”.
The Review Hearing Officers in 1993 recommended that “the Cabinet affirm its commitment to facilitate implementation of the
In their 1993 Report, Ms. Mary Munro and Mr. John McClellan, Hearing Officers for the first Five Year Review wrote:
“ ... it is time to ... allow the province to ... delegate implementation of the Plan to the municipalities. This should eliminate the current dual system of control”. (Executive Summary, Page 1)
“the Commission made little effort to use ... the expertise found in other Government ministries ... resulting in serious flaws in the Review’s information base”. (Page ES 8)
“subjective interpretations, presented as statement of facts ... formed the basis of many of the Commission’s proposed revisions” (page ES 4)
“we would caution policy makers against relying too heavily on the Commission’s evidence, which we often found to be less than objective” (Page ES 4)
“we find most disturbing the fact that the Plan Review embodies no vision for the
“an outside study’s ... sound recommendation for a small independent Review team was not adopted. Instead, the review was conducted by Commission staff, who appeared to have difficulty in appreciating points of view different from their own”. (Page ES 3)
In addition to the limited scope allowed for this Review and the manner in which the
In 1990, the whole
A. Conservation of ecosystems and biota of particular interest
B. Demonstration areas for ecologically sustainable land and resource use
C. Logistic support for research, monitoring, education & training related to these issues
These are obviously commendable goals but two United Nations policy statements that contradict them are clearly intimidating for private landowners. World Biosphere Reserves are mandated in the “Man and the Biosphere” program which, in turn, is part of Agenda 21 (Appendix 1), a detailed planning document for the 21st century, authored by the United Nations in partnership with powerful non-government organizations, that proposes international management of the world’s resources. Two key Recommendations of that Agenda, the basis for an international treaty known as the Convention for Biological Diversity signed by
7. Evaluate the natural products and services of the Biosphere reserve and use these evaluations to promote environmentally sound and economically sustainable income opportunities for local people. (bolded underline added)
8. Develop incentives for the conservation and sustainable use of natural resources and develop alternative means of livelihood for local populations, when existing activities are limited or prohibited within the Biosphere Reserve. (bolded underline added)
The implications are obvious. It is government that is supposed to determine what are
“environmentally sound and economically sustainable income opportunities for local people”. And it is government that is supposed to “develop incentives and alternate means of livelihood for local people when existing activities are limited or prohibited”. These edicts go far beyond the three roles stated by the NEC and are clearly applicable to the whole Escarpment Biosphere Reserve, not merely its public park component.
Equally worrisome is the probability that a World Biosphere Reserve designation is simply an opening tactic to impose on an unsuspecting public Orwellian land use philosophies recorded in the Report of Habitat: United Nations Conference on Human Settlements, convened at Vancouver in June, 1976. The Preamble to the Section on Lands in that document is quoted verbatim in attached Appendix 2.
This Preamble is a strident attack on private ownership of land. Further, the idea that public control of all land is essential poses a clear threat to every private landowner. This philosophy is consistent with the continuing devaluation of private property by international, national and provincial legislation. It bespeaks ultimate expropriation of use of private assets, if not the assets themselves, to the state by regulation without compensation as an environmental imperative. It implies globalization of national and provincial resources without advance public knowledge, consultation or consent. And, as a published recommendation of the United Nations, it calls into question the real purpose of unilaterally designating enormous tracts of land, public and private alike, as UNESCO World Biosphere Reserves.
SPECIFIC ISSUES
Introduction:
We wish to comment on the six issues presented in the NEC Discussion Papers and the Plan Review Document which lists the proposed Plan Amendments. In each case, we will comment first on the Discussion Paper and then on the proposed Amendments.
(1) Estate Wineries:
OPERA does not have adequate expertise to comment on all aspects of this complex issue. We have reviewed responses to the Discussion Paper submitted by the
(2) Rural Tourism:
We support rural tourism commercial uses in the Escarpment Rural Area which are consistent with municipal Official Plans. It has long been our position that the areas designated Escarpment Rural can and should be removed from the overall Plan.
The proposed Amendment seems designed to restrict the number of restaurants, banquet and conference facilities. These businesses, in our view, are consistent with maintaining the economic and social viability of rural areas but, apparently, are being limited to preserve the natural environment and open landscape of the Escarpment. This issue is outlined on Page 75 of the Discussion Paper for Estate Wineries.
The argument is made that restaurants are not required to be located in the rural area. It is further argued that such enterprises conflict with maintaining or changing natural streams and water supplies. These arguments contradict NEC support for intensive recreational developments in Escarpment parks, an issue discussed in a later Paper. Such restraints on business are inconsistent with major developments to attract tourists to the Plan Area such as Interpretative Centres at
(3) Signage Policies:
The Plan Review document proposes that billboard advertising signs on the Escarpment, as opposed to directional or facility signs, will be constrained beyond sign restrictions already listed in the development guidelines for the Plan and/or in existing provincial and municipal regulations.
The Commission recognizes that sign control is normally a municipal responsibility but, apparently, it doesn’t believe local municipalities are able and willing to enforce signage regulations on the Escarpment. In view of the plethora of provincial, provincial, regional and local sign restrictions that already exists, OPERA’s is of the opinion that special NEC authority to install yet another level of sign control would be costly, inappropriate and unnecessary.
It is interesting to note that a sign already erected by the NEC on a road allowance in at least one Escarpment municipality, identifies the area as part of a World Biosphere Reserve and is said to be larger than the proposed billboard limit of nine square feet. We believe exclusion is appropriate for signs relating to heritage, historical or cultural properties as has been proposed for directional, emergency and no trespassing signs.
(4) Environmental Monitoring:
Environmental Monitoring was favourably endorsed by the Plan Review completed in 1994. We assume a report covering monitoring results achieved over at least the last 7 years is now available. If so, OPERA suggests it should be distributed to the current Review panel and all interested participants without delay. If not available, we assume that no environmental monitoring has taken place since the
How and under what parameters environmental monitoring has been, or will be, applied is not clearly specified in the Discussion Paper or proposed Amendments. This activity, in our view, should not be carried out on privately owned Escarpment land without, in each instance, advance knowledge and consent of its legal owner. We are concerned that, in interpreting and administering provincial regulations on private property, the restrictions of the Trespass Act have too often been ignored in the past.
Under Appendix 1 of the Plan Review Document, we note it is expected that environmental monitoring will “also assist the NEC in meeting its obligations as a designated United Nations World Biosphere Reserve; namely in the areas of management for biodiversity, research, monitoring, demonstrations of environmentally sustainable development and education”.
OPERA is vigorously opposed to the suggestion that any agency of the
We request that the NEC identify, at the earliest opportunity, the provincial legislation, the organizations and the individuals responsible for establishing the
(5) Intensive Recreational Development in Escarpment Parks
and Status of Land Trusts:
Public Body Powers
Discussion Paper 5 prepared for this part of the Review recommends, on Page 7, that the Niagara Escarpment Plan not be changed to provide for land trusts and conservancies and similar non-profit agencies to be defined as public bodies or treated in a similar manner for the purposes of lot creation and the assembly of land for Nature Preserves. Only the
Ominously, a clearly worded Amendment to do exactly what was NOT recommended is included as Appendix 1 to Discussion Paper 5. On Page 25 of the Plan Review Document the Amendment on Nature Preserves provides for severance by conservation organizations for the purpose of establishing a Nature Preserve, provided no new building lot(s) is created.
OPERA strongly opposes the extension of public agency status to non-government agencies. These un-elected organizations, which report only to themselves, receive government subsidies at taxpayer expense and increase local taxpayer’s rates to compensate for property tax exemptions on “conservation lands”. They in effect pay no property taxes on the land they control. To award them severance privileges not available to other landowners is undemocratic and dangerous. The actions of some of their American associates are widely documented in contemporary literature and on any number of Internet web sites.
No agency not directly responsible to
Intensive Recreational Development in Parks
For the past 25 years, powerful agencies of the
This Discussion Paper now links the NEPOSS (
Environmental Monitoring
Enthusiastic support for naming the Escarpment a World Biosphere Reserve appears on Page 15 of the Discussion Paper but we’re not told precisely how and when and on whose authority management of this important
OPERA shares with a number of North American organizations and many private landowners, some serious reservations as to the origins, purpose and long term objectives of the World Biosphere Reserve program. We are not persuaded that the NEC is mandated to expend public funds in marketing the claimed benefits of that program. Nor do we subscribe to the view that a working association with an international advocate of property confiscation by regulation serves the interests of the
On Page 15 as well we find reference to a “growing interest among Escarpment-area citizens and public interest groups to participate in Biosphere-related activities transcending the boundaries between public lands and private lands”.
OPERA believes this provocative statement, presented in a public document without even the pretense of explanation or verification, cries out for searching enquiry. How many “Escarpment-area citizens” and which “special interest groups”? What’s a “Biosphere Reserve related activity”? Is “transcending boundaries” another name for trespass and/or expropriation without compensation?
OPERA considers this comment to be in poor taste and, for private landowners, very intimidating. A core tactic of the Biosphere Reserve program and its supporting lobby groups appears to be expropriation-without-compensation by regulatory means of privately owned Escarpment land thus creating a public resource belonging to the state or selected non-government organizations. We totally reject that initiative and strongly protest the inference that no distinction exists, or should exist, between public and private lands.
(6) New Plan Maps, Plan Errata & Plan Text
The new plan maps are generally acceptable although we note the dimensions of some designated areas have been changed. Because landowners within the Plan area may be unaware of these changes we suggest the new maps are publicly displayed at central locations along the Escarpment.
OPERA finds proposed Amendment 17, which states “the expansion/enlargement of an existing pond is not permitted in the Escarpment Natural Area, unless it is a farm pond”, to be arbitrary and unjustified. The Commission has already had two Escarpment pond studies completed by consultants at public expense, neither of which supported this prohibition.
The Amending document related to this Discussion Paper makes frequent reference, as do other Review guidelines, to harmonization of local Official Plans with the
We have been told that these maps include no reference to an Escarpment Development Secondary Plan already monitored by the NEC and approved by the host municipality under its Official Plan. We trust this is an administrative oversight and not an example of harmonization between the NEC and local Official Plans.
Conclusion
On behalf of OPERA member organizations and private supporters, we appreciate this opportunity to record our concerns and, where indicated, our endorsement with respect to the
It is our hope and expectation these preliminary efficiencies signal a 2001 Niagara Escarpment Plan Review distinguished by openness and fairness and, above all, by respect for the views and advice of the Hearing Officers involved. Given those parameters, we feel sure landowner concerns will not be overlooked in the process.
Constituents of OPERA’s member organizations on the Escarpment include many private owners of rural land. Their voice is often lost in the constant stream of regulations and recommendations flowing from various government agencies and/or professional “stakeholders” funded, wholly or in part, from the public purse. These powerful players have no personal financial, social or historical investment in the privately owned Escarpment lands on which they wish to impose ever more restrictive prohibitions in the name of ecological preservation or, that failing, “the public good”.
Accordingly, we trust the wisdom and impartiality of the Review Hearing Officers will respect the interests of resident landowners who voluntarily protect the
This Submission E-Mailed in WordPerfect format by R.A. Fowler, OPERA Secretary, to NEHOstaff@oeb.gov.on.ca May 23/01 with Summary. Form of Submission faxed to (416) 314-4506
If you have any questions or comments, please 
Mr. R. A. Fowler, Secretary.
or write
O.P.E.R.A. c/o R.A. Fowler, Secretary P.O. Box 483,