COMMENTS ON GOLDEN HORSESHOE
GREENBELT TASK FORCE
Presented on Behalf of
Ontario Property and Environmental
Dr. James White, P.Ag., C.A.C.
May 30, 2004
Established in 1994, the Ontario Property and Environmental Rights Alliance (OPERA) is a provincial coalition of trade associations and advocacy groups with a common mandate to “protect and entrench in law, the rights and responsibilities of private landowners against arbitrary restrictions and decisions of government”.
Opera member organizations include:
Association of Rural Property Owners Georgian Triangle Development Institute
Grey Association For Democracy and Growth Halton Regional Federation of Agriculture
Lanark Landowners Association Ontario Ski Resorts Association
Renfrew County Private Landowners Association West Carleton Rural Association
York Durham Farmers Assessment Association Wood Producers of Ontario Association
A number of concerned landowners also hold individual membership.
Correspondence may be directed to: R.A. (Bob) Fowler at (519) 369-2195 or firstname.lastname@example.org
GREENBELT DISCUSSION PAPER
The Task Force and the Government of the day have solicited public participation in the future of the Golden Horseshoe Greenbelt but has provided few opportunities, little or no publicity and very limited presentation time, five minutes. Our concerns are outlined below and complement others included in an attachment that was published in the Ontario Farmer last week.
1. Time Frame
The government has decided they can establish the Greenbelt in one year. The development of the Niagara Escarpment Plan took 10 years, from the Passing of the Niagara Escarpment Development Act in June 1973 to final approval of the Niagara Escarpment Plan in 1983. If the government plans to complete the Golden Horseshoe Greenbelt Plan by December, they will create a major disaster. “Haste makes waste” has never been more true.
2. Discussion Paper Lacks Data
The Discussion Paper is simply a document based solely on the opinions of the Task Force members. There are no maps showing the exact boundaries in the report, no estimate of acreage, no estimate of number of farms, farmland, or farm incomes. This is not planning, its dreaming. I looked up some Census of Agriculture 2001 data and can tell you that for the Regions of Durham, York, Peel, Halton, Hamilton and Niagara, we know the following was true at that time.
Number of farms 7,162
Number of acres farmed 1,071,138
Average acres per farm 150
Total value of land and buildings $7,676,200,000
Average value of land and buildings per farm $1,072,000
Average value per acre $7,166
Total sales $1,404,569,000
Average sales per farm $196,114
These data do not include the greater share of the Niagara Escarpment which is north of Highway 9. They do include all the Region of Niagara. They are for only the lands defined as farm lands and thus probably significantly underestimate the number of landowners impacted.
Given the under whelming publicity given to the Task Force and the difficulties faced by private landowners who wished to participate in the well programmed afternoon consultations, I doubt if 10% of the landowners will know about this process. When the plan is approved by the Cabinet, it will be a very nasty surprise to a lot of people when they learn how much their property has been depreciated. Woodlot owners in particular are likely to be astonished to learn they may no longer sell lumber or firewood.
3. No Recognition of Property Owners
The Task Force emphasizes the benefits to urbanites of all the wonderful recreational opportunities the plan will create. There is no recognition that these recreational activities are not compatible with agriculture, the primary land use or with the private owners of these lands. They appear to assume all comers will be welcome when in fact, they will be trespassers. Does the government plan to pass legislation to make trespass legal on rural properties?
The concept of compensation is unrecognized based, we assume, on the widely held opinion of environmentalists that property rights do not exist. I suggest they create legislation that allows everyone access to all private swimming pools in urban areas and see how the owners react. Why not solve the homeless problem in Toronto by requiring every household to provide bed and breakfast services to at least one homeless person each month? It would be inconvenient but would do a lot less to depreciate the value of houses than this plan will do for rural landowners.
Now that I have your attention, let me spell it out in simple terms:
§ This land is our land.
§ We purchased it, we paid for it.
§ We pay taxes and
§ We will not share it with the government or trespassers.
§ The public use of our private property is a non-starter.
§ The present proposal is trespass and shoplifting on a grand scale, nothing less.
§ If you want to use our land, buy it.
§ Ontario has good expropriation legislation. If you want a Greenbelt, buy our land. If you cannot afford it, go away. Breaking one more promise won’t change the next election.
As the owner of a Century Farm in the Niagara Escarpment, I have strong opinions how this Greenbelt will be implemented. I applaud the Task Force for recommending local municipal control by means of by-laws. My preference is that the Greenbelt be abandoned simply because it won’t work but it will put a lot of farmers and others out of work. I am also concerned about the power of the Niagara Escarpment Commission staff, CONE and environmentalists to convince the government to use Development Control to implement and enforce the final plan. The hearing officers who reviewed the Proposed Niagara Escarpment Plan, the two who completed the first review and OMB hearing officers have made a number of comments about how the staff have implemented Development Control.
The three experienced OMB hearing officers who reviewed the NEC Proposed plan from 1980 to 1983 recommended the plan be implemented by upper level municipalities. They stated that “ The procedures used by the NEC in dealing with development control permits represents a denial of natural justice”.
This recommendation was repeated in 1993 by Mary Munroe and John McClellan the two experienced Environmental Assessment hearing officer’. who conducted the First Plan Review. They also recommended “the implementation of the development control system be reviewed with a view to designing a process that is open, timely, consistent and predictable”. Implicitly, they were saying that Development Control is none of the above.
Mary Munroe and John McClellan also stated, “In terms of land use planning and land use controls, for residents of the Plan Area, the Commission is the local municipality”. They recommended responsibility of the plan area be returned to upper level municipal governments. This was included in the original NEC Act but has never been implemented. We still have government by individuals appointed by the Cabinet.
Mr. A.J.L. Chapman, at an OMB Hearing regarding an application for a plan of subdivision by Kent & Lois McClure which was opposed by the Niagara Escarpment Commission stated:
“The Board will give no weight to the Commission’s guidelines, because, in my opinion, they are unreasonable and because they were adopted and applied in a manner that denied natural justice to landowners in the Niagara Escarpment Area.”
This was a proposal for residential subdivision which in November 1988, was judged to conform to the plan and was strongly supported by the Commission staff person they were dealing with. In May 1989, the same proposal was judged not to conform to the plan and was strongly opposed by another staff member. The Commission is reputed by a knowledgeable lawyer to have wording of the plan to justify their changed position.
5. Property Rights
The NEC and many environmental lawyers use the fact that property rights are not part of the Constitution to deny all property rights even those based on common law and the fact Canada signed the United Nations Universal Declaration of Human Rights. It states “No one shall be arbitrarily deprived of their property”.
Bill 27 allows the province to arbitrarily deprive landowners of the use of their property, their income from the sale of lumber and firewood, not only in the future and retroactively protects the Minister from all actions. A large number of court cases and planning hearings have, based on common law, reiterated the rights of owners to enjoy quiet use of their property. Unfortunately, the legislature has the power to override Common Law.
A classic example was the comment made by John White, the then Treasurer of Ontario, when asked during Second Reading of the NEC Act in 1973 why they did not purchase all the lands involved. “In my view and the view of my colleagues, this is completely unnecessary’. We can conserve through planning designations for the benefit of all our people”. Obviously, his definition of all our people did not include NEC Plan area residents. This philosophy, deeply embedded in the bureaucracy is “we don’t have to buy it because we have the power to designate it in any way we want, regardless of the landowners’ interests”. The result is that government “doesn’t buy what it can steal”.
Judge Riddell stated in 1908, the prohibition, “thou shall not steal” has no legal force on the sovereign body. We have no such restrictions upon the power of the Legislature as is found in some States. “Almost every state has property rights except Canada. China recently passed property rights legislation”.
One must recognize the power of the state to do what it wishes. Having power and being right are not the same. The tenth commandment regarding coveting and the eighth regarding stealing have long been part of the basis of our ethical system and should remain so.
Those who claim landowners have no rights should review the following:
A. The late Mr. Justice McRuer, when he was Chief Justice of the High Court, said in relation to a case between Bridgman and the City of Toronto (1951 O.R. 489 at page 496)
“Everyone has a right to use his property in any way that he may see fit, so long as he does nothing that will be a legal nuisance to his neighbours. That is a common law right, it is a question of liberty that is to be jealously guarded by the courts, and while one’s rights may be affected by proper legislative action, until that is done, one’s personal common law rights are to be strictly guarded. In the construction of any Act, either of the Legislature or of a municipal government which is limited in its legislation to the authority conferred on it, one must place a strict construction on any statute or by-law which is restrictive in its nature of the liberty of the subject or the liberty with which he may exercise those rights which the common law gives him over his property.”
B. OMB Hearing File S920062. The Hearing Officer refers to the position of Save The Rouge Valley System Inc. this way:
“There is an unstated assumption held by S.T.R.V.S. Inc. that an owner’s proprietary interests can be set aside and that these lands can be treated as public parks without the clear intent of the public authority to acquire or expropriate. The board has always viewed, with askance, the appropriateness of such an assumption. In short, the Board has not been persuaded that these lands should be left in their natural state.”
There are many more similar decisions by OMB hearing officers and judges which demonstrate our property rights under the common law. These include:
C. From the City of London Official Plan (30MBR266)
“In general, the Board does not agree with placing private lands in an open space category, particularly in the absence of detailed plans by the municipality in acquiring such lands”.
D. From Township of Nepean Restricted Area By-law 73-76 (90MBR36)
“The Board has always maintained that if lands in private ownership are to be zoned for conservation or recreational purposes for the benefit of the public as a whole, then the appropriate authority must be prepared to acquire the lands with a reasonable time otherwise the zoning will not be approved.”
E. Hauff v City of Vancouver – Restrictions of Use
“To deprive an owner of existing rights of enjoyment of his property, with a view of reducing the price payable in the event that the state may wish to buy it later is a confiscatory act which violated principles inherent in our constitutional system.”
F. Supreme Court of Canada, Cartwright, Abbott, Martland, Judson and Spence, J.J., Mar. 18, 1965 in a case involving City of Ottawa et al v Boyd Builders Ltd.
“An owner has a prima facie right to utilize his own property in whatever manner he deems fit subject only to the rights of surrounding owners, eg. nuisance, etc. This prima facie right may be defeated or superseded by rezoning if three prerequisites are established by the municipality, (a) a clear intent to restrict or zone existing before the application by the owner for a building permit, (b) that council has proceeded in good faith, and (c) that council has proceeded with dispatch.”
Those of us who own land in the NEC Plan area can tell you more than you want to hear about the Development Control system It is permanently flawed because:
1. The Commissioners are all appointed by the Cabinet. Half are nominated by the rural counties and the other half are simply friends of the government with no residency requirements. This is not democratic.
2. The number of representatives is one per county or region regardless of the area involved. Grey county with over half the land area has only one representative, the same as Simcoe which has only a small area in the plan.
3. The staff, not the Commissioners make the policies and decisions. The Commissioners almost always accept staff recommendations and they have no power to hire or fire staff regardless of their conduct.
4. The decisions tend to be arbitrary. An applicant has no by-laws to indicate what rights they have to use their land.
5. The procedures used to make decisions are arbitrary and undemocratic. An applicant has only five minutes to state their case, witnesses are not sworn, cross-examination is not allowed. The appeal process is before a hearing officer appointed by the Commission and decisions cannot be appealed.
We request the government turn responsibility for both the proposed Greenbelt and the NEC Plan Area to local municipalities. We also recommend you abandon this futile effort to put a green garrote around the Golden Horseshoe. It won’t stop development because the developers will either jump over it and cause more problems in Bradford, Bond Head, Orangeville, Kitchener and Brantford or wait until the next election. They will simply buy the election for their friends and be rewarded by increased development. Only the present farmers will be hurt by the depreciation in land values by several Billion dollars.