Property Rights v. Environmentalism
Presentation to the Policy Subcommittee of the
Goulbourn Landowners Group
It feels like rural landowners are under a
concerted assault from intrusive, inappropriate, and badly designed
legislation that threatens our basic property rights and
lifestyles. For example, the Department of Fisheries and Oceans
regulations relating to streams and drainage, the recent health
regulations concerning farmers markets, and City of Ottawa’s tree
cutting by-law. While few people would argue that some regulation
of rural life is required, there are too many examples of regulation
that is ill-thought-out, inappropriate, and abusive of rural
The wetlands designations are an excellent
example of intrusive, inappropriate, and badly designed
legislation. I’m going to talk about this issue and the way it has
affected my group, the Goulbourn Landowners Group. (We prefer the
short form, the GuLaG as it seems to be indicative of how we are
perceived by the City.) There are many other aspects to the
property rights problem, and the proponents for those aspects are
capable of speaking for themselves.
There is a perception that because we oppose
the wetlands designations, the Goulbourn Landowners Group is
anti-environment. Nothing could be further from the truth. The
Goulbourn Landowners Group is not against the environment or against
the preservation of real wetlands. Most of us who make our homes in
rural areas are environmentalists. That’s why we choose to live in
a rural environment. But because we live in and with the
environment, we tend to be more practical than some urban armchair
environmentalists, who specialize in telling other people how to
live without applying it to themselves. I could, for instance,
point to a certain councilor who proclaims herself to be an
environmentalist and protector of wetlands, but lives in a house
built on wetland in a subdivision built on wetland.
The Goulbourn Landowners Group does not see
this issue as property rights versus the environment. The main
reasons we oppose the wetlands designation are because they devalue
and freeze our properties and erase our equity. This is a
problem with the process that the City is using, not with the
For those who have not been following our
issue, let me provide a brief summary.
The City and Province have a program to protect
Provincially Significant Wetland. Once a property is designated
Provincially Significant in the City’s Official Plan, the owner is
severely constrained as to what he can do with his wetland, and his
property is devalued. There is another form of wetland, basic
wetland, that does not require a zoning amendment and has little
effect on the value of the property or the landowner’s use of his
property. The wetland regulations permit a process called
complexing, which allows basic wetland to be designated Provincially
Significant if it is within 750 metres of an existing Provincially
An application to the City of Ottawa to permit
development of the property at 6851 Flewellyn Road caused the City
to initiate a study of wetlands in the surrounding area.
The area in question is about 5 km from the
suburban area of Stittsville, and has many smaller 2 – 10 acre lots
containing residences, as well as larger lots and a few farms. For
a rural area, it has a relatively dense population.
In 2004, MNR and the City of Ottawa initiated a
study “to identify wetlands and determine their potential to complex
with the Goulbourn Wetland Complex”. A letter was sent to the
affected landowners indicating a study was underway and requesting
permission to come onto their properties to evaluate their wetland
status. The letter did not discuss the process, warn of the
potential for designation as a Provincially Significant Wetland or
of the effects on property value, etc. Most landowners figured
nothing good could come of this and ignored the letter.
The city then used aerial photographs from 2002
to identify potential wetlands. In September 2004, the City’s
biologist flew over the target properties at 1000 feet to identify
wetland plants and supplemented this with roadside surveys. In
February 2005, the City of Ottawa sent the completed study to MNR,
which designated the wetland areas as Provincially Significant
Wetland based on their proximity to the existing Goulbourn Wetland
Complex and the complexing regulations. Altogether 262 hectares
(about 650 acres) were designated.
At this point the landowners knew nothing of
this and had had no chance to object or comment.
So far as we have been able to ascertain,
there is no way to appeal MNR’s decision.
In April 2005, the City of Ottawa informed the
landowners that their land had been designated by MNR, and of the
City’s intent to update its official plan to re-zone the affected
properties as Provincially Significant Wetlands. This was an
information meeting; landowners were permitted to ask questions but
their input was not required or requested. The city outlined the
history and their ongoing plans to re-zone the affected properties.
At no point in the process do the landowners have an opportunity to
have their concerns addressed or to object to what is taking place.
The landowners can only appeal the Official Plan Amendment to the
OMB, but this will not affect the provincial designation.
There is also a buffer zone of up to 120 metres
around all designated wetlands, where land use is severely
restricted. To date, the affected landowners have not been
informed that they are in the buffer zone, or of the restrictions on
As a result of a publicity campaign, lobbying,
and the Rural Council’s support, the OPA process is now on hold
pending the results of the Rural Summit.
The City has stated that it does not intend to
compensate landowners for the devaluation of their properties.
The effect of these designations, while they
are pending and if they are approved, is to devalue and freeze our
The wetlands designations have raised so many
issues that it’s hard to keep track of them all. Even where they
are not specifically labeled as property rights, all these issues
impinge on the property rights issue. They include:
- Process. The landowners were not informed
of the project until the results of the evaluation had been sent
to MNR and MNR had designated the properties.
- Process. The City’s process does not
contain any provision for consultation or negotiation.
- Process. The landowners in the buffer area
have still not been informed by the City of the impending
- Process. The current wetlands evaluations
are the City’s response to the application for a subdivision at
6851 Flewellyn Road. Since this property was not classified as
wetland at the time of the application, the City will not be able
to prevent the development. Thus, the designation of our
properties is a pre-emptive strike by the City to prevent any
other landowners in the area from doing the same thing. Once
again, the developer will benefit and rural residents and farmers
will pay the price.
- Ethics. The City did not inform the
landowners of the wetlands process at the start, and have given
the landowners no opportunity for input of negotiation. However,
a local environmental group was apparently fully informed
throughout the process.
- Ethics. The hallmarks of the City’s and
Province’s dealings with landowners have been deception and
- Ethics. The City does not intend to
compensate landowners for the devaluation of their properties.
The City appears to look no further than its legal obligations,
ignoring issues of ethics and justice.
- Property Rights. Wetlands, real or
contrived, are of no value to the owner. Wetlands are a communal
value, and if the community insists on devaluing the landowners’
properties, the community should compensate landowners for the
- Regulation. Wetlands are evaluated using
the Ontario Wetland Evaluation System manual, Southern Edition
(OWES). This manual is a complete disaster. Its definitions of
wetland are nonsense, and it contains provisions for ‘complexing’
that allow the City to designate further properties with only the
most minimal observations.
- Implementation. The application of wetlands
regulations is applied very unevenly. Wetland adjacent to the
suburban core is released for development at the same time as
rural ‘wetlands’ are being designated to protect then from
development. The City’s record in protecting wetlands is
abysmal. The City appears only to protect wetland that no-one
wants to develop.
- Property Rights. Given the City’s record in
protecting wetlands, its claim to rezone our properties to protect
the wetlands is fraudulent and must be withdrawn.
I’d like to expand on a few of these points.
More detailed information is provided at the end of this
- The designation of a basic wetland is based
on the plant population alone. The evaluation system doesn’t care
if property is wet; doesn’t care why property is wet - e.g. city
drainage policies; doesn’t care what was there yesterday or will
be there tomorrow. The sole criteria is that 50% of the plant
species must be wetland plants (or, more specifically, plants in
the OWES manual’s very dubious list of indicator species for
wetlands, many of which will happily grow in non-wetland
In fact, problems on some of the designated properties are caused
by spring flooding and, more specifically, by the City’s failure
to provide adequate drainage. The City is draining areas to north
of the designated area, but making no provision for the increased
water flow to pass through the area. The City has a clear
legal responsibility to provide such drainage.
- The OWES manual over-designates wetland. By
basing the wetland designation on plant species alone, the system
designates many areas beyond the swamps, marshes, bogs and fens
that the manual claims to be protecting. It applies to many areas
that no reasonable person would consider wetland, including most
of the Goulbourn landowners’ properties. The City knows this and
doesn’t care. (“land doesn’t need to be wet to be wetland”, Susan
Murphy, City of Ottawa Environmental Planner)
- The evaluation system is subject to
manipulation by various parties to get the results they desire.
Increasing the size of an evaluated wetland increases its score.
By choosing a big enough wetland, the score can be manipulated to
produce a Provincially Significant Wetland. Complexing is another
variation on this theme. This is how the City manipulates the
system to designate marginal wetland that does not fit any of the
descriptions of swamp, marsh, bog or fen. Conversely, by choosing
a small enough area, the score will be below the Provincially
Significant Wetland threshold. This is how developers get
Provincially Significant Wetland rezoned for development.
- The way we have been treated by the City has
many similarities to the Mushroom Theory of management – keep them
in the dark and feed them bullshit. I don’t mean to make light of
it; this is a very serious issue that extends well beyond wetlands
designations. All citizens should have the right to be treated
ethically and equitably by the City. The process must be fair,
open and objective, and City staff must administer the regulations
without attempting to promote one agenda over another. That is a
very long way from the City’s dealings with members of our group.
The issue of ethics needs to be addressed elsewhere in the Rural
- In fact, rural landowners have a much better
record of protecting wetlands than do the City and Province, who
allow wetlands near suburban areas to be developed wholesale.
Finally, we should point out that the good
intentions (?) of the city and provincial bureaucrats are likely to
result in exactly the opposite of what they are trying to achieve.
Unfortunately, the consequences of a
Provincially Significant Wetland designation are nothing short of
draconian. Some landowners have been so concerned about the
restrictions that they have been prepared to destroy their
designated ‘wetlands’ rather than allow their life savings to be
destroyed and their rights to enjoyment and management of their own
properties to be usurped. If this goes ahead, more will follow.
The Landowners Position
I cannot emphasize strongly enough that if we
cannot resolve this problem in a way other than property rights
versus the environment, we will have failed to find a solution to
the wetlands and to the property rights problem.
We need a process that doesn't pit us against the City and force us
to choose between our financial interests (i.e. our life savings and
retirement security) and the environment. To people with pensions,
life savings and retirement security may not seem like big deal, but
those of us who have worked for small companies, or are self
employed or farmers, don’t have pensions and need our savings to
finance our retirement.
An immediate solution to the Goulbourn
Landowner Group’s problems must satisfy three criteria:
- It must not devalue our properties.
- It must not affect the reasonable use of our
properties, including the enjoyment of our current rights.
- It must be fixed now. The ongoing
uncertainty is causing a great deal of stress for some
landowners. Those in the process of selling their properties are
unable to sell them at their previous market price and are
suffering significant financial hardship.
In order to fix the system and prevent other
groups from going through this process (and to save municipalities
large sums of money), a solution should also satisfy the following:
- It should not apply to land zoned for
- It must require real consultation with the
landowners throughout the process.
- Develop a process that is fair to landowners
and does not create an adversarial relationship between the city
and the landowners.
- Provide full and fair compensation when
properties are devalued, or to buy them at a fair market price
(with the owner’s consent). If the City cannot afford to provide
compensation, it is completely unethical (but, sadly, not illegal)
for the City to proceed with wetland designations.
- Provide real incentives for landowners to
maintain their wetlands.
- Apply wetlands regulation equally to rural
and suburban properties.
- A moratorium on all existing and future
designations until the above problems are resolved.
I'd like to throw out a few of ideas for
resolving this problem:
First proposal: Withdraw the
designations until the above requirements are met.
Second Proposal: The Township of Augusta
has incorporated the following into its Official Plan:
"Whereas an individual
cannot re-designate or rezone the use of his/her private property
without the written consent and approval of the municipality, it is
a fundamental requirement that the municipality not rezone or
designate the use and opportunities of private land without the
landowners prior written approval and consent. This principal can
only be abridged for the public good, with fair, just and timely
Two other townships have also incorporated this
clause into their Official Plans. Perhaps Ottawa could show some
leadership and become the first major city to follow suit.
Third proposal: The City and Province
could change the zoning regulations to allow the owner of a property
zoned as rural residential to modify up to 25% of his/her property
without triggering environmental issues. The 25% would include the
space occupied by the house, backfilled areas, septic system,
driveway, any outbuildings, etc. This would apply to all property
zoned rural residential, whether wetland or not. The system would
guarantee that 75% of the property was left in a natural state (e.g.
wetland). This would not preclude normal rural activities such as
planting and cutting trees and maintaining or improving the health
of the land and vegetation. Land currently being used for
agricultural purposes would be exempt from the 25% restriction. On
a 2 acre property (the minimum rural severance), that would allow
the owner about 22,000 square feet and should be enough for most
people. Those who require more would have to satisfy the City that
using more would not have a detrimental effect on the environment.
If this rule were applied to all rural residential properties, there
would be no need for wetlands regulations, and several other
regulations would possibly be made obsolete. This restriction would
not prevent a landowner from subdividing his property, but each part
would have to satisfy the 25% rule or come under additional
The 25% rule obviously needs to be worked out
in detail. However, it seems to provide a balance between landowner
rights and communal interests.
Fourth proposal: Independent of other
proposals, any land currently being used for agricultural purposes
should be exempt from a Provincially Significant Wetland
designation. This exemption currently exists for any land licensed
by MNR as a quarry operation or gravel pit. Isn’t farmland at least
I should mention that not all our members
support these options. Many feel that the wetlands issue is
completely phony, and that we have no need to compromise on any
Clearly, some of these proposals require changes to Provincial
regulations. I hope that this will not be seen as a reason for
rejecting it to pursue a solution that falls entirely within the
City’s jurisdiction. It’s my view that many of the problems we have
with government are caused precisely by these sorts of
considerations; considerations that result in us solving the wrong
problems. If we don’t analyze the problem correctly, we won’t find
the right solution. If we allow the solution to be forced to fit
other requirements for the convenience of the administrators, we end
up implementing the wrong solution. In both cases, this results in
more problems down the road, which usually causes more badly thought
out regulations, more cost and more frustration. This, in turn,
results in the City hiring more administrators, and more money in
the pockets of lawyers. Let’s try to do this the right way.
If we can't find ways to fix the wetlands
process, then the Goulbourn Landowners Group will require full
compensation from the City for the devaluation of our properties,
and will be suing the City for causing our wetlands problem by
failing to maintain the drainage system. We will probably see
several more landowners remove all plants from the designated
wetland area in order to avoid the designation.
If we get to the point where compensation is
seen as a solution, the Rural Summit will have failed, because even
compensation will not unfreeze our properties.
Finally, on this issue, I’d like to emphasize
that we need a speedy resolution to this issue as it’s putting a
severe financial strain on some members of the Goulbourn Landowners
Group. At least one of our members is in the process of selling her
property. To date, she has had to reduce the asking price by over
15% of its previous market value. She cannot afford to reduce it
any further and, because she has to tell potential buyers that there
is a wetlands designation hanging over the property, she still
cannot find any potential buyers. It is intolerable that the City
should put this sort of burden on its citizens.
The following sections provide supplementary
information about several of the topics.
Wetlands Evaluation System is fatally flawed
Wetlands in southern Ontario are evaluated
using the Ontario Wetlands Evaluation System Manual, Southern
addition (OWES manual). This manual provides guidance on two
questions: what constitutes a wetland (basic wetland), and what
constitutes a Provincially Significant Wetland (PSW).
In addition to many minor problems, it has two
glaring holes – the definitions of basic wetland and PSW are
For basic wetland, the manual begins by
describing four types of wetland, marsh, swamp, bog and fen, that it
aims to protect, in terms we would all agree with. However, the
technical definition of a basic wetland is based only on the plants
growing in the area – if more than 50% of the species are wetland
species (based on a very dubious list the manual provides), the area
is wetland. Now, no-one would disagree that the four types of
wetland identified above are wetland by this definition. However,
the definition also encompasses many areas that do not fall into any
of these categories and no normal person would consider a wetland.
The authors of the OWES manual do not seem to have considered this
possibility, and the bureaucrats who administer it don’t appear to
care. An example of the latter is the quote from Susan Murphy, the
City’s coordinator for this project, that “land does not need to
be wet to be wetland” (interview with Dave Stevens on Ottawa
Morning, CBC Radio One, June 8th, 2005).
To classify an area as PSW requires a much more
detailed evaluation, including fauna and flora, hydrology and social
uses. The evaluation uses a scoring system, and if an area scores
more than a threshold level, the area is PSW. Unfortunately the
scoring system has a major flaw: each ‘community’ identified by the
evaluation contributes to the score. That means that if we take two
areas and score them individually and then as a whole, the score for
the whole will inevitably be greater than either of the individual
scores. Thus, if a wetland is not PSW, just add in some adjacent
wetland and re-evaluate. Keep doing this until the score reaches
the PSW level. This is the game that our City and Provincial
bureaucrats are playing.
Conversely, if you isolate a small enough piece
of wetland and score it by itself, it will not be provincially
significant. This is the game the developers play to get land
reclassified for development.
Janet Stavinga and others defend the
development of wetlands around Stittsville on the basis that they
were just basic wetland and not PSW, as if that were a significant
distinction. However, this is just sophistry; the Stittsville
wetlands could have been PSW had there been any political will to
The OWES evaluation system is a joke. Any
publicly administered system needs to be objective enough to prevent
manipulation by bureaucrats and developers. Such systems must also
be visibly fair and equitable.
If the City and Province intend to pursue the
classification of wetlands, one of the items that must be addressed
is a revision of the OWES system to make it fair, objective, and
limited to real wetlands.
In the current case, the vast majority of the
designated properties not Provincially Significant in their own
right; at best they are very marginal wetlands. The City and
Province have got around this inconvenience using the ‘complexing’
rules. Complexing allows a basic wetland to be deemed Provincially
Significant if it is within 750 metres of an existing Provincially
Significant Wetland. The new Provincially Significant Wetland can
then be used to complex further wetlands, using the same rules.
Potentially, one piece of Provincially Significant Wetland could be
used to extend wetlands designations from one side of Ontario to the
other without ever requiring a full evaluation of another wetland.
Complexing allows the City and Province to
designate properties as Provincially Significant, without the
inconvenience or cost of having to meet Provincially Significant
Complexing allows the City and Province to
designate marginal wetland as Provincially Significant – wetland
that would never meet Provincially Significant Wetlands standards on
its own merits.
A study by a biologist hired by the Goulbourn
Landowners Group has indicated that our properties are at best basic
wetland and would not qualify as Provincially Significant Wetland on
their own merits. None of them would be recognizable by a lay
person as swamp, marsh, bog or fen that the wetlands regulations
claim to protect.
Complexing is fundamentally unjust and must be
Uneven Application of Wetlands Designations
The motivation of the City, in designating 650
acres west of Stittsville as wetland, is to protect and preserve the
supposed wetlands, so it is reasonable to examine the City's record
in this respect.
In the Goulbourn area alone, the village of Stittsville has seen
massive development since the introduction of Municipal water and
sewer services about 25 years ago. The population of Stittsville in
that time has expanded from about 2000 25 years ago to over 10,000
today. In that time, there has been,
and is ongoing, wholesale development of wetlands in and
around the village of Stittsville.
- In Stittsville, Brown’s Supermarket and the
adjoining strip mall, at the junction of Main Street and Hazeldean
Road, is built on wetland, as is the housing development directly
east of it.
- There is currently development of wetland
north of this area, across the Hazeldean Road.
- The current controversy about expanding the
Stittsville Tim Horton's is another case in point. Does anyone
doubt that it will go ahead despite the environmental protests?
- Provincially Significant Wetland on a
property between Fernbank Road and Huntley Road is being
downgraded to basic wetland so that a development of more than 200
houses can be built on it.
- Most of the other developments around the
village of Stittsville in the past 25 years are built on
There is no reason that wetland adjacent to suburban areas should be
treated any differently than wetland in rural areas. In theory,
this is already the case but, in practice, wetland adjacent to
suburban areas is not effectively protected and gets developed. The
City must then find wetland in rural areas to designate in order to
satisfy the environmental lobbyists. However, designating more
wetland does not create new wetland whereas developing wetland
destroys it permanently.
Indeed, the new wetlands that the city is ‘creating’ to compensate
for development are contrived, rather than real, wetlands.
There is a definite dual standard here. Urban residents and
councilors are permitting the destruction of wetlands for suburban
development. Then they turn around and tell the rural residents
that ‘we’ need to preserve our environment. Perhaps the urban
residents and councilors should look in the mirror and in their own
backyards before preaching to others about the environment.
Of course, these people have ample excuses: “the land was never
officially designated as wetland”, or “the OMB made us do it”.
Nevertheless, real wetland is being destroyed. And many of these
same people are condoning and encouraging such development by living
in houses built on wetland. We have never heard of an urban
resident campaigning to do the environmentally responsible thing and
boycott such housing.
It appears that the City and Province only protect wetlands that
no-one wants to develop. Given the record of the City and the
Province in protecting wetlands, we have to conclude that wetlands
are less safe in their hands than they are in the hands of private
Until the City is prepared to protect existing wetlands in suburban
areas, it should cease and desist from harassing rural residents.
A designation of Provincially Significant
Wetland results in a drastic devaluation of the affected
properties. The value of general rural land falls by 85% from about
$2500 per acre to about $300 - $400 per acre. Farms and properties
with homes on them can be much more drastically affected. Neither
the City nor the Province is prepared to compensate the landowners
for the loss of value. Since wetlands are a communal good and of no
intrinsic value to the landowner, this is inexcusable.
The City’s planning department and politicians
have consistently claimed that there is no devaluation, or that it
is minimal. However an independent property appraiser, and MPAC,
the company who do property assessments for the City, use a value or
85% as the devaluation for property zoned as wetland.
Landowners were told by the City
representatives that the landowners need not pay property taxes on
the designated areas (acreage only, not home value) provided they
agree to maintain the wetland. The reduction in property taxes
works out to about $10/acre/year. So landowners only need to stay
on their properties for around 200 years to recoup the loss.
Farmers, who pay less tax on their acreage, will need to live on
their property for several thousands of years to recoup their
losses. Selling up before the recovery period is up results in the
landowner receiving the reduced price for his / her property and the
buyer getting the tax credits.
Once designated, the owners of Provincially
Significant Wetlands, and of all property in a 120 metre (400 foot)
buffer zone, enter a bureaucratic nightmare where an Environmental
Impact Study may be required for any change to the
wetland, no matter how trivial. This can involve the Ministry of
Natural Resources, Ministry of the Environment, Dept. of Fisheries
and Oceans, Ministry of Agriculture, and many others. The
Province’s web site (http://www.on.ec.gc.ca/wildlife/docs/legislation-e.html)
lists 13 different pieces of legislation and 9 different ministries
that a landowner should consult before making any changes to his
wetland. Any one of these organizations can demand an Environmental
Impact Study (and the chances that none will demand a study are
about zero), the costs can easily run into tens of thousands of
dollars and take years to complete.
The event that initiated the City’s wetlands
study was an application for a subdivision at 6851 Flewellyn Road,
which (without going into the issue of whether or not its wetland!)
is a very wet property. Since this property was not classified as
wetland at the time of the application, the City will not be able to
prevent the development. The OMB has consistently stated that the
regulations they take into account when they make a decision are the
regulations in force at the time the application was made.
Thus, the designation of our properties is a
pre-emptive strike by the City to prevent any other landowners in
the area from doing the same thing.
There are two problems with this:
- The evaluation process is expensive and
wastes taxpayers’ money to prevent an eventuality that might not
- The developer benefits and surrounding
landowners pay the price in the devaluation of their properties.