Appeal No. CA 007-92
Mining and Lands Commissioner
Friday, the 11th day
of February, 1994.
The Conservation Authorities Act
In the matter of
An appeal to the Minister under subsection 28(5) of the Conservation Authorities Act against the refusal to place fill to facilitate the development of an industrial subdivision on Part of Lot 9, in Concession IX, in the City of Vaughan.
611428 Ontario Limited
- and -
Metropolitan Toronto and Region Conservation Authority
Upon hearing the parties to the appeal and upon reading the exhibits filed;
- This tribunal orders that the appeal from a refusal of the Metropolitan Toronto and Region Conservation Authority to give permission for the placement of fill to facilitate the development of an industrial subdivision on Part of Lot 9, in Concession IX, in the City of Vaughan, is hereby dismissed.
- This tribunal further orders that no costs shall be payable by either party to the appeal.
Reasons for this order are attached.
Dated this 11th day of February, 1994.
Original signed by L. Kamerman
Mining and Lands Commissioner
24th floor, 700 Bay Street
Appeal No. CA 007-92
Mining and Lands Commissioner
Friday, the 11th day
of February, 1994.
The Conservation Authorities Act
In the matter of
An appeal to the Minister under subsection 28(5) of the Conservation Authorities Act against the refusal to place fill to facilitate the development of an industrial subdivision on Part of Lot 9, in Concession IX, in the City of Vaughan.
611428 Ontario Limited
- and -
Metropolitan Toronto and Region Conservation Authority
The matter was heard in the Court Room of this tribunal, 24th Floor, 700 Bay Street, Toronto, Ontario, on February 22, 23, 24 and 26 and March 1, 4, 5, and 8, 1993.
Mr. Stanley Makuch
Counsel for 611428 Ontario Limited
Mr. Jonathan Wigley
Counsel for Metropolitan Toronto and Region Conservation Authority
611428 Ontario Limited (the "appellant") applied to the Metro Toronto and Region Conservation Authority (the "MTRCA") on December 4, 1990 for permission to place fill on Part of Lot 9 in Concession IX, in the City of Vaughan. A hearing was held by the board of the MTRCA on March 13, 1992 resulting in a refusal to issue permission which was confirmed in writing by the executive on March 14, 1992. On March 13, 1992 the appellant wrote to the Minister of Natural Resources (the "Minister") to appeal the decision of the MTRCA pursuant to subsection 28(5) of the Conservation Authorities Act, R.S.O. 1990, c. C.27.
The powers and duties of the Minister under subsection 28(5) have been assigned by Revised Regulation of Ontario 795/90 to the Mining and Lands Commissioner (the "tribunal"), pursuant to clause 6(6)(b) of the Ministry of Natural Resources Act, R.S.O. 1990, c. M.31. Part VI of the Mining Act, R.S.O. 1990, c. M.14 applies to the proceedings before the tribunal with necessary modifications, as set out in subsection 6(7) of the Ministry of Natural Resources Act.
The appellant owns 6.1 hectares of land on the west side of Rainbow Creek. The application involves the placing of 67,000 cubic metres of fill on an area of 3.5 hectares, being wholly within the jurisdiction of the MTRCA, pursuant to Ontario Regulation 293/86 ("O. Reg. 293/86"), Schedule 3, which applies to the Humber River watershed. It is in respect of this 3.5 hectares, which is located on Part of Lot 9, Concession IX, in the City of Vaughan (the "subject lands"), for which the appeal was made.
The subject lands are located between the flood line and the fill line delineated on Map M.T.R.3-30 (Ex. 9), pursuant to Schedule 3 of O. Reg. 293/86. The subject lands were referred to alternatively as a valley feature, a minor tributary valley, a first order stream valley and misfit stream throughout the hearing.
Immediately to the west of the subject lands is the proposed extension of Highway 427. Should this extension proceed, the means of access to the subject lands will become problematic. Immediately south, and containing a watercourse, is what was referred to as the Roybridge Lands, in respect of which the MTRCA has received an application to place fill (Ex. 15A, B and C). It was suggested by the MTRCA that the only means of access to the subject lands would be from the Roybridge Lands, possible only if the watercourse on the latter were filled.
- Is the appeal hearing before the tribunal a new hearing or is it a true appeal? Ancillary to this issue is whether the decision of the MTRCA can be overturned only where there is an error of fact or an error of law as opposed to whether the tribunal can substitute its own decision for that of the MTRCA.
- Does the placing of fill proposed by the appeal affect the conservation of land? Ancillary to this issue is the scope of the meaning of "conservation of land", including what factors may properly be taken into account.
- Will the permission to place the fill proposed in the appeal cumulatively effect the watercourse in question?
- Can the conditions proposed by the appellant be attached to permission to place fill, or is there no authority given either to the MTRCA or the tribunal for the conditional granting of permission?
The following is a list of the witnesses who gave evidence at the hearing, with a summary of their evidence, including their Witness Statements. Further relevant evidence, as necessary, is set out under the topical headings below.
On behalf of 611428 Ontario Limited:
Dr. Bruce Alan Brown, principal of Brown Associates Limited, is a professional engineer with a doctorate in geochemistry and member of the Planning Institutes of both Canada and Ontario. Dr. Brown referred to the Rainbow Creek Town of Vaughan Phase I Master Drainage Plan, prepared by Cosburn, Patterson, Wardman Limited, Consulting Engineers (Ex. 6) which was prepared as a precursor to land use planning documentation, which determined that for the entire Rainbow Creek, 3360 hectares of land would be necessary for storm water management and erosion control within the watershed. Referring to Part of Drawing 2, being the Rainbow Creek Master Drainage Plan, Woodlots/Erosion Sites (Ex. 18, included in Ex. 6), Dr. Brown states that the subject lands are described as old field, not characterized as top of the bank lands, and therefore, not subject to erosion.
Photographs taken January 28, 1993 show the main channel of West Rainbow Creek to be 2 to 3 metres wide in a wooded valley, the Roybridge Lands to have similar vegetation and the subject lands to have grasses and sedges (Ex. 19, items 1 through 9). Dr. Brown testified that the 1:100 year flood is contained by the toe of the slope of the main valley. He described the differences between the three areas in terms of slope and vegetation, with the subject lands having the least discernable slope. Up to five years ago, the subject lands had been ploughed. There was no discernable watercourse shown on the subject lands, although there had been one at one time in the past. It was captured and flows into the creek upstream of the subject lands, so that the source which carved the subject lands has been eliminated.
There is a small amount of flow on the subject lands which would have to be captured and piped to the main channel of West Rainbow Creek. Part of this flow would come from the proposed Highway 427 and part would come from the surface run off from the subject lands themselves. While the subject lands are encompassed by the fill line of the MTRCA, Dr. Brown testified that these lines were not intended to be absolute, and have a 50 foot margin to ensure that all possibilities are captured. Dr. Brown suggested that O. Reg. 293/86 does not prohibit outright the placing of fill, but sets out under which circumstances the placing of fill may be approved. It was Dr. Brown's evidence that the fill lines set out on the MTRCA Flood Plain and Fill Regulation Line Mapping, Sheet No. 30 M.T.R.3-30 (Ex. 9) do not indicate top of the bank lines, and that nowhere on the subject lands is there a top of the bank feature. It was also his evidence that there is no permanent or semi-permanent watercourse or well defined swale on the subject lands. Due to his opinion that the subject lands are not part of the West Rainbow Creek main valley system, no erosion or slope stability concerns were raised and due to the gentle slope of the subject lands, it was Dr. Brown's opinion that the fill line was not appropriately drawn.
In Dr. Brown's opinion, the relevance of designations made on Official Plans is that the process is designed to weigh conflicts in land use. An Official Plan is a master document which takes into consideration all aspects of land use, including greenspace and socio-economic concerns. The subject lands were designated as industrial in Official Plan Amendment 250 (Ex. 4A) ("OPA 250"), having been the ubdivision process. It is his evidence that the lands were not designated as open space under the policies of the Official Plan Amendment 343 (Ex. 4B) ("OPA 343"), which received Council approval on November 20, 1990, but has not been approved by the Minister of Municipal Affairs. The Open Space Designation in OPA 343 provides for protection of significant environmental features, as set out in clause 2.1.3.b), "To conserve and manage quality landscape features, including significant watercourses, wet lands, valley lands, wood lots and environmentally sensitive areas." Dr. Brown testified that it is his opinion that the proposed fill on the subject lands does not include any features listed as protected under the Open Space Designation, nor does it extend below the slope of the bank of West Rainbow Creek.
Dr. Brown testified that there are no vegetative communities of ecological significance found on the subject lands, that they do not provide habitat for wildlife and are not subject to erosion. He contrasted this with the main valley of West Rainbow Creek, which he testified was a significant valley feature, having several characteristics listed in the Open Space Designation. Permission to fill the subject lands, in his opinion, with planting of trees along the newly created slope and the creation of a pond or wetland, would provide enhanced enclosure and privacy to the main valley, thus encouraging diversification of species. Dr. Brown testified that the buffer created between the main valley and the urban industrial area proposed on the subject lands will improve environmental conditions and water quality. He stated that the fill line usually denotes flexibility, while the top of bank is carved in stone. The criteria to determine top of bank includes a break and slope, where the table land plunges. On undulating lands, there is a great deal of ambiguity in determining whether there is a top of bank feature. However, those lands which have a steep slope and distinct vegetation have greater value than the undulating lands with no discernable differences in vegetation.
Dr. Brown stated that OPA 343 does not include all top of bank features, which reflects the intent of the Town of Vaughan. When the land flattens to 10 or 15 degrees, it cannot be considered a valley feature. The main channel of West Rainbow Creek itself is small, and it must be recognized that at some point it loses its significance. According to Dr. Brown, OPA's 250 and 343 were not intended to encompass all streams and stream valleys, regardless of significance. He pointed to OPA 343 as not being indicative of a prohibition against the placing of fill.
The refusal to give permission for filling of the subject lands would result in sterilization of a larger portion of lands designated as industrial. To compensate for the loss of lands so designated would result in urban sprawl in this area which functions as the headwaters of the Humber River. It is Dr. Brown's evidence that greater portions of land would have to be urbanized to compensate for this loss, which would have a much larger effect on the cumulative impact on the watershed than expected by the MTRCA in its reasons for refusal.
Dr. Brown stated that the temporary and permanent measures advocated by the appellant, including the storm water detention and retention pond, could alleviate any concerns of the MTRCA. He suggested that any contamination anticipated through the procedure of placing of fill would be no greater than that experienced through the plowing of the field. The proposed measures would not simply mitigate, but would control impact on the watercourse below, through the control of the base flow of water, sediment control from perforated piping, snow and silt fences, straw bales, geotechnical filters, a detention pond to precipitate out clay. The newly created slopes would not be left un-vegetated. The appellant proposed to vegetate the area by hydroseeding and placing within trees and shrubs within the newly created slope to ensure stability. This would create a more enclosed main stream valley, which would enhance all the functions which the valley currently provides.
Dr. Brown testified that the subject lands were currently in the early stages of succession and provide no significant habitat. The introduction of Highway 427 would close off the upper reaches of the subject lands. As there would be nowhere for wildlife to go, the lands would provide no open space function. Also, Highway 427 would add salt and noise to the subject lands. Currently zoned as agricultural in Town of Vaughan By-Law 106-91, being a consolidation and update of By-Law 1-88 (Ex. 5), Dr. Brown stated that Vaughan cannot determine the plan of subdivision until the fill issue has been determined. Only then can the size and shape of proposed lots can be finalized.
Dr. Brown concluded his evidence by stating that OPA 250 was designed to encourage the efficient consumption of land. If the appeal is not allowed, there can be no prestige industrial lot associated with the large level area which the proposed fill would create. This would be contrary to the highest and best use of the lands described within the plan and would result in greater urban sprawl, including greater costs of servicing associated with such sprawl.
Under cross-examination, Dr. Brown stated that the bottom of the subject lands nearest the main stream valley is a transitional area, being wet, evidenced by the type of plant growth. While he agreed that most headwaters should be kept as greenspaces, the subject lands should be an exception, providing no significant environmental function. Mr. Wigley suggested that Highway 427 would not proceed without first obtaining an environmental assessment. Dr. Brown agreed that Hurricane Hazel is the standard for the regional storm for the area, as set out in the regulation, which would result in sub-watershed drainage down the valley formed by the subject lands. Dr. Brown agreed, when referring to cross-sections of the subject lands, that there is a 6 metre embankment at the bottom, corresponding to section 5.5, but suggested that its steep profile is the exception on these lands. While slopes were compared to those on the Roybridge Lands, Dr. Brown suggested that the existence of a watercourse could make a difference, having a difference in function. Mr. Wigley suggested that the only access to the subject lands would be from the south, pointing out that the MTRCA had received an application concerning the Roybridge Lands (Ex. 15A, B and C). Dr. Brown was uncertain about access. Mr. Wigley suggested that one could not tell from OPA 250 what the designation on the subject lands is, as it would only be at the subdivision stage that the Town of Vaughan would determine what is and is not a valley. Paragraph 2.1.3.f) of OPA 343 was read by Mr. Wigley, which indicated that protection of the natural environment would be given higher priority over all other aspects of land uses. Dr. Brown stated that the Town gives environmental use a high priority, but not necessarily the highest. The top of the bank is determinative of stream and valley features, which requires judgement. Dr. Brown indicated that this judgement was subject to the right of appeal exercised at this hearing.
Dr. Brown reiterated that he believes the drawing of the fill line is incorrect. Having been drawn from interpretation of aerial photographs, they are subject to 15 metre errors. Dr. Brown stated that 85 percent of this particular watershed falls within the fill lines, which he has never seen before. Mr. Wigley suggested that OPA 343 does not show the detail ascribed by Dr. Brown. Dr. Brown was of the opinion that it applied only to the main channel of the creek, while Mr. Wigley suggested it applies to all fingers of the creek. Mr. Wigley suggested that by allowing fill to be placed on the subject lands, pressure would be created to allow fill to be placed on the Roybridge Lands. Dr. Brown stated that he did not know the details, but the characteristics of the subject lands were unique in this watershed. Dr. Brown disagreed that the principle of conservation of land should apply to the subject lands, stating that the Town of Vaughan would only preserve those areas which merit it and not every feature. While the main channel of the creek is significant, the side valley is not.
The 1977 photograph of the subject lands (Ex. 14A) shows some channel delineation from the top of the feature. Dr. Brown suggested that the hairlines seen on the photograph do not connote drainage, as the land could drain elsewhere. There may be some recharge or subsurface function. However, just because some water passes through the grade does not mean that it all does. The proposed appeal shows a water detention pond which replicates the detention and recharge function of the land in its natural state.
Dr. Cameron Mitchell Kitchen, President of Ecoplans Limited since 1979, has a doctorate in geography and is an adjunct professor in Environmental Studies at the University of Waterloo. He is a member of the Planning Institutes of both Canada and Ontario and of the Ontario Society for Environmental Management.
Dr. Kitchen visited the subject lands and surrounding valleys to the north and south with two of his staff, a plant ecologist and a botanist respectively. Having walked the entire site, a plant list and description of wildlife was produced. Dr. Kitchen determined the anticipated cumulative impact on the watershed of filling the subject lands. Produced as result of his investigation were a Resource and Vegetation Map with transparency showing the proposed placement of fill (Ex 24 and 24A), a group of six photographs and cross sections (Ex. 25, photographs being 1 through 6 and cross-sections being A & B) and aerial photographs taken in 1978 and 1992 (Ex. 26A and B).
Dr. Kitchen described the subject lands as a minor tributary valley or small side valley which may have developed during an earlier period of stream development of the West Rainbow Creek watershed. The shape of the valley form was described as a broad "u", with steepness found at the mouth and flattening out at the north end. Having walked the length of the valley, Dr. Kitchen characterized it as discontinuous, with much of it being man-made. There was no defined channel, but apparently conveyed overland sheet flow. There were some small depressions or pools. There was evidence of intermittent rather than continuous flows. However, at the mouth, there was a more permanent flow. Dr. Kitchen stated that it was evident that a farmer had formed a ditch through the valley whose remnants were broken down and filled in.
Whatever its earlier role and function, the creek flows have now been diverted to the main channel of the West Rainbow Creek. The upper part of the minor tributary valley has been "captured", so that flows are now diverted upstream from the subject lands into the main valley. In Dr. Kitchen's opinion, the subject lands are a misfit stream, meaning that they are larger than is necessary to convey existing flows which would occur in this tributary. It was his opinion that the original drainage which flowed into the valley no longer flows along this route, as the valley is too large for the current flows observed.
The vegetative cover in the valley was described as vegetative old field succession, likely being an abandoned farm which was in the process of restoration to wood-type growth. Between two to five years ago, the succession had been interrupted.
Dr. Kitchen testified that the subject lands contain a small discontinuous channel which has water flowing for only a small part of the year and at the northern end of the channel. Beyond the subject lands, it disappears into a ploughed field. There are no permanent ponds or pools at the south end of the subject lands, although short-term spring ponding does exist which may provide habitat for terrestrial species which require water for breeding. This type of habitat can be found in the main valley.
Dr. Kitchen gave evidence on the vegetation which was found on the subject lands. It is in the early phases of succession meadow, with the older vegetation found in old field/pasture succession having been removed. This has led to some slope erosion of the valley walls. Wildlife found on the subject lands is limited to those species found in open grassed areas. The subject lands, in Dr. Kitchen's opinion, do not have significant botanical species or provide significant wildlife habitat. The valley formed by the subject lands does not function as a link between distinct natural areas, and essentially provides a diversion from the natural wildlife linkage formed by the main West Rainbow Creek valley. The area is not an Environmentally Significant Area, Area of Natural or Scientific Interest or a wetland. All concerns of the MTRCA can be resolved, in Dr. Kitchen's opinion, through stormwater management practices and measures to mitigate erosion and sedimentation.
Andrew Francis Brodie, President of Andrew Brodie Associates Inc. is a professional engineer with a Masters of Business Administration. In Mr. Brodie's opinion, the subject lands could be built upon without the proposed placing of fill, as long as provision is made for the conveyance of ground and surface waters, with designed controls of the quality and quantity of water flowing into the main channel of the West Rainbow Creek. The subject lands are not subject to flooding and their development would not increase erosion. In Mr. Brodie's opinion, the impact on the conservation of land would be minimal. In the Rainbow Creek City of Vaughan Phase 1 Master Drainage Plan, prepared by Cosburn, Patterson, Wardman Limited, Consulting Engineers, dated December 1, 1991 (Ex. 6), drainage measures needed to allow urbanization are set out. Measures recommended are 1) a water quality control pond for runoff from a 25 mm. one hour storm; 2) quality control detention to limit the total discharge to 40 litres/second/hectare for the 1:5 year storm; 3) on-site detention to limit the discharge on each lot to 180 litres/second/hectare for the 1:100 year storm; 4) controlled release rooftop hoppers to limit flows from rooftops to 40 litres/second/hectare; and 5) erosion and sediment control measures during the period of construction.
In Mr. Brodie's opinion, the use of proposed drainage design measures by which off site runoff would be conveyed to a perforated pipe through the site, while runoff from the site would be conveyed to a detention pond in the valley, but above the regulatory floodline, would be sufficient to meet the requirements of the Master Drainage Plan. The uptake of nutrients could be achieved through the construction of a wetland habitat at the bottom pond. Selective planting could also improve conditions along the main channel of the creek.
Brian Roderick Gray, P.Eng., is Vice President, Geotechnical and Geo-Environmental Engineering with Peto MacCallum Ltd., Consulting Engineers. Mr. Gray characterized the subject lands from a site walk conducted on July 15, 1992, as a minor depression with sparse tree cover on the southern slope. There was evidence of recent clearing on the northern slope, with areas showing burned tree limbs, areas devoid of vegetation or mixed weed growth. The slopes gently incline, with the northern slope adjacent to the main channel of the West Rainbow Creek valley steepening to a 40 degree slope. Referring to the proposed application, it was Mr. Gray's opinion that the placing of fill could be accomplished by using conventional construction techniques and equipment, resulting in a depth of fill of up to 6 metres in places. Mr. Gray did not feel that the placing of fill would cause a significant change in the water table of the surrounding lands, but would have a beneficial effect on potential erosion. The newly created slope which would become part of the main channel valley would consist of well compacted earth, which would be suitable for selective planting and would mitigate potential erosion.
Soils found at the site are characterized by Mr. Gray as clayey silt till, which provides a competent subgrade to support the proposed fill, roads and building foundations. Design detail would provide recommendations for the removal of topsoil and organic material prior to the placement of fill, specifications for earth burrow sources, compaction characteristics, construction equipment and procedures, dewatering measures and requirements for sedimentation control during construction. Similarly, detailed recommendations and guidelines for construction of storm sewers and parameters for building envelopes will be provided. With the geotechnical report and ongoing testing and inspection while under construction, Mr. Gray believed that the concerns of the MTRCA could be addressed during the placement of fill.
On behalf of MTRCA:
Dr. Paul Franklin John Eagles , Associate Professor with the University of Waterloo Department of Recreation and Leisure studies, and Principal of Paul F. J. Eagles Planning Ltd., received his doctorate in Urban and Regional Planning, having obtain his BSc in biology and MSc in resource development and zoology. In Dr. Eagles' opinion, the subject lands constitute a well-defined river valley feature, with top of bank, slope of bank and valley bottom being well defined and easy to identify.
The entire area, in Dr. Eagles' testimony, was once a forest, although the entire valley was deforested. There is evidence of early succession trees and shrubs on the subject lands, with more advanced successional growth found within the main valley. Within the last two years considerable woody growth has been removed from the subject lands. Herbaceous plants found along the valley floor of the subject lands are indicative of wet conditions, with several plants requiring moist conditions for most of the year. Dr. Eagles believes that there may be permanent seepage at the bottom of the slopes of the subject lands and there may be some ecological wetlands functions occurring in the valley.
Dr. Eagles notes that the subject lands are adjacent to property to the south called the Roybridge Lands.
As any part of a river valley will contribute to the control and storage of flood waters, in Dr. Eagles' opinion, filling the subject lands cannot be said to have no effect on the control of flooding. The placement of fill within a river valley will usually contribute to water pollution, although this can be mitigated but not eliminated by proper construction and maintenance. Within the concept of conservation of land, Dr. Eagles relies on excerpts from Regeneration - Toronto's Waterfront and Sustainable City - Final Report by the Hon. David Crombie (Ex. 33), which advocates the ecosystem approach which recognizes that processes of many disparate features which act in concert to impact on a given watershed, in advocating that the broader ecological and watershed implications be considered when determining whether permission to place fill should be granted. Dr. Eagles referred to the cumulative impact of allowing numerous minor valleys to be filled on the health of the entire watercourse.
Dr. Eagles presented the resulting loss of area as a percentage of total area within the Rainbow Creek and Robinson Creek watersheds within the jurisdiction of the MTRCA, if all said valleys were permitted to be filled as 7.4 percent of the total lands, and if the area between the fill and flood lines were permitted to be filled as 64.7 percent of the total lands. Dr. Eagles characterizes the cumulative environmental effects of permitted losses in terms of loss in each of the following: area of vegetation communities, wildlife habitat, ecological diversity, open space, potential area for restoration of natural environments and ecological functions; decreased flood storage capacity; potential for pollution from slope erosion; and decreased stream water quality.
Donald Raymond Haley, P.Eng., is the Project Engineer, Water Resources Division of the MTRCA. Through the use of the drainage area for the subject lands provided by Richard Lloyd and the MTRCA's "Regional Headwater Hydrology Study", MacLaren Plansearch, 1991, a regional flow estimate was developed. Through the use of the HEC2 backwater model and the MTRCA Floodplain Mapping M.T.R.3-30 (Ex. 9), 10 cross-sections were developed. The resulting calculations were used to plot the floodline in the subject lands watershed. The floodplain shows a width of between 10 and 26 metres and a depth ranging from .24 to .33 metres. Estimates of the drainage area were 10 hectares of land external to the subject lands and 4 hectares within the subject lands flowing into the bottom of the minor river tributary.
Renee Phyllis Jarrett is the Manager, Plan Review Section, Water Resource Division of the MTRCA. Ms. Jarrett referred in her evidence to the December 1980 Watershed Plan for the MTRCA (Ex. 10), the 1986 Watershed Plan (Ex. 11), the January 1989 Greenspace Plan for the Greater Toronto Region and the July 1989 Greenspace Strategy for the Greater Toronto Region - "A Conservation Vision for the 21st Century" (Ex. 12) and the April 1992 Draft "Valley and Stream Corridor Management Program" (Ex. 13) in her evidence. Her Witness Statement (Ex. 40) sets out that the MTRCA receives many applications pursuant to O. Reg. 293/86 to alter or eliminate well defined valley systems to create tableland for development which must be considered in light of the cumulative effects of the proposals, so that the MTRCA must determine the extent and type of alterations and losses which are acceptable in light of its Program objectives.
According to Ms. Jarrett, another application has been received by the MTRCA to place fill in a similar valley in lands immediately to the south of the subject lands. It is this type of situation which the MTRCA must consider, and if left unmanaged, will result in continued loss and deterioration of the greenspace system. In her opinion, the current appeal is contrary to the policies and objectives of the respondent.
Ms. Jarrett described the genesis of the current flood plain mapping for the Humber Creek Watershed. When the legislative reference to placing of fill below the high water mark was introduced in 1961 and the schedules introduced in 1964, base mapping from the 1950's and 1960's were used. Designed to describe the river valleys of a watershed of 1300 hectares, or 5 square miles, estimates were made along each of the valleys using topographic information, commissioned studies, flow and peak flow rates and hydraulic calculations. The floodline, which was revised in 1983, is the result of these calculations. Staff plotted the fill regulation lines on the maps by following the valleys and setting the line back ten metres from the crest of the slope. The crest of the slope, or top of bank, is defined in the 1980 Watershed Plan (Ex. 13) and reflects the general practice of the authority.
The reason that mapping ended upon completion of 1300 hectares was due to funding. As funding permits, additional mapping is done on the basis of 1:10,000 Ontario Base Mapping. By this means the upper reaches of the fill lines can be identified.
Concerns with the proposed filling on the subject lands relate to the impacts on flood flows, the sediment and nutrient transport, sedimentation and erosion. Once the plan of subdivision had been proposed, a site visit was made by representatives of the appellant, respondent and Town of Vaughan in July, 1990. The top of bank was not established at that time, notwithstanding that this is one of the steps in obtaining approval for a plan of subdivision. The purpose of the site visit at that time, from the MTRCA's view was to enable the it to determine where areas of concern may be, such as slope erosion and related conditions which are not obtainable from the topographic mapping and aerial photography. Conditions observed on site visits may vary from what is anticipated.
The site visit was not intended to and did not establish the top of bank. In this regard, the parties did not agree on where stakes should be placed and it was left to be determined how they would proceed. Notwithstanding, an application was subsequently received. Staff advised that the application was premature due to the failure to establish the top of bank.
The Plan of Survey (Ex. 38) done by Ontario Land Surveyor Douglas Barcham, dated May 17, 1989 was received on October 21, 1991 by the MTRCA. On it is noted "site walk on 25-7-91 - review 22-10-91 - R. Lloyd". Ms. Jarrett stated that no site walk had been done by MTRCA staff at the dates indicated, the only one having been recent, at the request of Mr. Wigley and without the permission of Mrs. Milani, principle of the appellant. The top of bank, as determined according to the proposed draft plan of subdivision (1990), as surveyed by D. Barcham (1991) and as investigated by the MTRCA (1993), was plotted on a copy of the MTRCA Flood Plan and Fill Regulation - Humber River Sheet 30 Map (Ex. 39). The accuracy of Ms. Jarrett's estimation, she stated, was not surveyed, but based upon standing on the top of the slope. Although a draftsman working from her notes mistook her estimates over the boundary, she stated that she was satisfied with the green line denoting her 1993 visit.
Referring to the December 1980 Watershed Plan for MTRCA and the 1986 Watershed Plan (Ex. 10 and 11 respectively). Four natural resources a re identified, being the Niagara Escarpment, including the headwaters of the Humber River which provides functions in the recharge and discharge of water as well as a source, the Oak Ridges Moraine, the valleys from the headwaters to the lake of all watercourses and the lakefront. River valleys were identified as being a significant natural feature within the jurisdiction and mandate of the MTRCA, related to water. The functions are integral to the health of the watershed; in Ms. Jarrett's words, they are the backbone of the watercourse.
In Ms. Jarrett's opinion, the subject lands are part of the Humber watercourse, being part of the riverine system. The land form characteristics found in the valley typify those of a river valley, having defined side slopes, a broad floor, and different plant life as between the bottom and top. Being connected to the larger valley, it is not an isolated swale located within a field. Ms. Jarrett reiterated the relevance of the functions performed by such valleys, as had been discussed by Dr. Eagles and Dr. Kitchen. Ms. Jarrett stated that the MTRCA was directed by the Province to file a Watershed Plan, which required approval of the related municipality and the Province.
Referring to the mandate of a conservation authority, Ms. Jarrett referred to Page 8 of the 1980 Watershed Plan, which is a restatement of section 20 of the Conservation Authorities Act. Page 22 sets out that "ill defined" valleys are included, which means that the slopes of the sides blend with the surrounding landscape at certain points. "Well-Defined River Valleys" are defined on page 23, as having steep, often tree covered slopes, unstable walls, having valley walls distinguishable from the flood plain, with the regional storm in many cases occupying the whole of the valley floor. Ms. Jarrett discussed the demands being placed on valleys as a natural resource, due to urbanization, and outlined how valleys had become regarded as barriers to development which must be overcome, as set out on page 19. A number of programs pursued by the MTRCA rely on the regulation fill lines to delineate the area over which their jurisdiction and the programs apply. The Conservation Land Management Program, described on page 11 of the 1986 Watershed Plan, sets out a comprehensive program which includes vegetation, wildlife, fisheries, source area protection, sediment control, water quality improvement and conservation land planning. The Greenspace Strategy for the Greater Toronto Region (Ex. 12) is an advocacy document distributed by the MTRCA which demonstrates that it no longer regards its mandate as restricted to the quantity and quality of water. Rather, it has taken a holistic approach to the diversity of function, reflecting a desirable diversity of the landscape. In particular, headwater areas were one of the focuses of the 1986 Watershed Plan, as discussed at page 2. The community has expressed an interest in these areas, which according to Ms. Jarrett are easily developed due to their lack of differentiation, but can only be restored at considerable expense, as evidenced by the program to restore and rehabilitate the Lower Don River.
Ms. Jarrett told the tribunal that the current application under appeal exemplifies pressures on headland and valley feature lands. In themselves, the lands may not seem important, when taken individually. However, when viewed as the limbs of a tree, each valley which is developed is the equivalent of chopping a limb off the tree. Ms. Jarrett acknowledged that the MTRCA strategy has changed its focus, although it is not new. The focus is now on the natural resource and the integrated functions of each component.
The 1992 Draft Valley and Stream Corridor Management Program (Ex. 13) is a consolidation of the policies and practices of the MTRCA up to 1992. It integrates public safety concerns with an ecosystem planning approach. The boundaries of stream and valley corridors are defined. Ms. Jarrett referred to the particular provisions of the Draft.
In conclusion, Ms. Jarrett discussed the staff recommendation to the Board, which was reiterated before the tribunal, that the granting of permission to fill the subject lands would not be a wise use of the lands, which perform valuable valley corridor functions. Referring to the fundamental relationship between the land form and ecological function, Ms. Jarrett stated that the subject lands perform a function in controlling the base flow of West Rainbow Creek, provides nutrient and sediment transport, impacts on water quality and contributes to the fish and wildlife habitat of the system as a whole. Any intrusion into the subject lands will decrease the capacity of the whole system to perform these functions and result in degradation of the water downstream.
Art Tikiryan is the Senior Planner of Policy for the Township of Vaughan. Mr. Tikiryan gave evidence that he had prepared OPA 343 (Ex. 4B), which has not received Ministerial approval. Outlining the process by which Environmental Open Spaces are determined, he stated that the Ontario Base Map is reviewed to see whether any significant features are found. The MTRCA and the Ministry of Natural Resources are invited to make comments as the primary consultants. Paragraph 2.1.3.d) at page 6 will involve ultimate public ownership of the main tributary and valleys of the West Rainbow Creek. At page 33, the top of the bank is determined by the MTRCA, a proponent for development and the city staff. All such determinations would then go to council.
Dr. Robert Newbury, Principal of Newbury Hydraulics Ltd., has a doctorate in environmental engineering science. Dr. Newbury's evidence is that the filling of ravines to create table land for development leads to the loss of headwater habitats, nutrient sources and landscape diversity if whole watersheds are to receive similar treatment. He recommends the ecosystem approach to development in ravines.
Referring to a drainage pattern analysis for the Rainbow Creek, Dr. Newbury compares both the numbers of and stream channel area of lower order streams to higher order streams. While there are significantly more lower order stream channels involved, 106 first and second order streams compared to 10 third, fourth, and fifth order streams, the stream channel area has been found in an American study to be similar. The drainage area of the Rainbow Creek watershed is approximately 48 square kilometres. With 90 minor tributary valleys creating opportunities for filling within the watershed, approximately 2 per square kilometre, the elimination of one may not be detectable by current methods used to measure downstream impacts. While incremental loss of first order streams has not been extensively researched, the downstream effects have been observed, such as the reduction in diversity of species.
The first order streams provide certain functions within the stream ecosystem and food web, which, if eliminated, will impact on downstream biological communities, including fisheries.
Dr. Newbury observed that the proposed development is on the fringe of new urban growth. The removal of first order streams or ravines will result in the loss of desirable neighbourhoods of the sort observed in highly urbanized areas. As an alternative, Dr. Newbury suggests that reliance should be had on alternative design that conserves such intermittent stream and ravine features.
Eric Murray Taylor is an employee of the Town of Vaughan Planning Department, charged with managing development applications, having been previously employed by the MTRCA from 1987 to 1989 in the Planning Review Section.
Mr. Taylor's evidence and that of Mr. Maletich below was introduced to attempt to resolve what took place with respect to a top of bank walk on the subject lands.
Mr. Taylor gave evidence concerning the top of bank walk which took place in the fall of 1988 with Sam Spirenza, owner of the Roybridge Lands, representatives of the Town of Vaughan, the MTRCA and a surveyor. There was disagreement between the owners of the Roybridge Lands and the MTRCA, with the former wishing to cut through the valley floor, effectively cutting off the Roybridge Lands and the MTRCA wishing to follow the high point of land around the land. The matter could not be resolved. Mr. Taylor reiterated that purpose of the top of bank walk is to set development boundaries, but that to place fill within the fill lines would still require the permission of the MTRCA or of this tribunal.
John Walter Maletich, Manager of the MTRCA, gave evidence of applications which had been received prior to the June 7, 1986 regulation, stating that there had previously been no jurisdiction in the MTRCA to prevent filling of the lands surrounding the West Rainbow Creek. A 1975 examination of the site, where the placing of fill was proposed for the north side of the creek, was not a top of bank walk. Two letters, one to the Township of Vaughan dated January 5, 1985 referring to an asphalt plant on lands owned by Joe Racco downstream from the subject lands and one to a Brock Krieger dated January 15, 1985, referring to the Vaughan West Industrial Park, both bearing Mr. Maletich's signature, state that the top of bank is accepted. Mr. Maletich stated that the letters had been written by Michael Goldberg, who dealt with the matters. The practice of the MTRCA was for the manager to sign such correspondence. Asked to explain, Mr. Maletich stated that there never had been a top of bank walk with respect to either of these properties, but that Michael Goldberg must have done a cursory review and found it acceptable.
Under cross-examination, Mr. Maletich reiterated that no top of bank walk had been done on the Roybridge Lands.
On behalf of 611428 Ontario Limited:
Mr. Makuch discussed the purposes for which a conservation authority can exercise its discretion and refuse permission for the placing of fill. The question put to the tribunal was whether the MTRCA refused permission for a proper purpose.
Mr. Makuch submitted that the purpose behind the refusal was to preserve land as open space and to regulate its use for purposes of conservation of land. The conservation of valley lands is not, in his submission, a proper purpose. Rather, the tribunal was invited to find that the conservation of land purposes set out in section 28 must be in connection with water management purposes only. He submitted that a proper purpose included control of flooding, prevention of erosion and sediment control. In other words, it should be limited to soil stability and water related concerns. Mr. Makuch submitted that the MTRCA exercised the powers granted by the legislation for another purpose.
Mr. Makuch asked the tribunal to consider why the purpose behind the drawing of the fill line. In particular, he asked that the tribunal consider the proper purpose to be tied into the objectives regarding soil erosion, stability and sediment control. He referred to excerpts from Legislature of Ontario Debates, ("Hansard") Official Report - Daily Edition, of the Fifth Session of the Twenty-Fourth Legislature, for Tuesday, February 8, 1955, at pages 3 and 4, of the Fifth Session of the Twenty-Fifth Legislature for Wednesday, February 18, 1959 at page 425, of the Fourth Session of the Twenty-Sixth Legislature for Monday, February 11, 1963, at page 593 and of the Fourth Session of the Twenty-Sixth Legislature for Wednesday, February 20, 1963 at pages 866, 897 and 898; the Provincial Flood Plain Planning Policy; the Crombie Report (Ex. 33 ); the Official Plan Amendments for which MTRCA approval was sought (Ex. 4A and B); and the case law submitted.
Mr. Makuch submitted that the legislative provisions and powers to exercise them cannot be determined without looking at history. In Fuller, Morality of Law, it states that there must be a congruence between the law and action, which is found in interpretation and cannot be carried out according to fancy or literalness. Referring to the principles set out in Heyden's Case (1584), 3 Co. Rep. 7a, 76 E.R. 637, Mr. Makuch reviewed the four questions for determination:
- What was the common law before the legislation?
- What mischief did the common law not address?
- What is the remedy by which parliament sought to cure the mischief? and
- What is the true reason of the remedy, by which the mischief would be suppressed and the remedy advanced?
The Supreme Court of Canada affirmed this approach in Greenbaum v. City of Toronto. The Court struck down the by-law, stating that it exceeded statutory authority. At page 14, the Court referred to the Interpretation Act, R.S.O. 1990, c. I.11 which states:
- Every Act shall be deemed to be remedial, whether its immediate purport is to direct the doing of anything that the Legislature deems to be for the public good or to prevent or punish the doing of anything that it deems to be contrary to the public good, and shall accordingly receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit.
At page 15, the Court states, "Accordingly, a court should look to the purpose and working of the provincial enabling legislation when deciding whether a municipality has been empowered to pass a certain by-law."
At the bottom of page 15,
...As Stanley Makuch states in his Canadian Municipal and Planning Law, at p. 115:
The courts, as a result of this inferior legal position [of municipalities], have traditionally interpreted narrowly statutes respecting grants of powers to municipalities. This approach may be described as "Dillon's rule", which states that a municipality may exercise only those powers expressly conferred by statute, those powers necessarily or fairly implied by the expressed power in the statute, and those indispensable powers essential and not merely convenient to the effectuation of the purposes of the corporation.
And at the bottom of page 16:
... However, courts must be vigilant in ensuring that municipalities do not impinge upon the civil or common law rights in passing ultra vires by laws.
Mr. Makuch submitted that the MTRCA generally cannot do what it feels is beneficial, but may act only within the ambit of the legislation. Not only must the MTRCA place limits on the exercise of its discretion, but it must ensure that in the exercise, it does not impinge on the civil or common law rights of citizens.
In City of Ottawa v. Boyd Builders  50 D.L.R. (2d) 704, it was held that the owner of property has a prima facie right to utilize its own property in whatever manner it deems fit. Mr. Makuch submitted that this principle must be applied to the MTRCA in examining the purpose of its power, ensuring that it is proper.
In order to protect pre-existing rights, the MTRCA and the tribunal must have clear proof of the need to interfere with those rights, which must come from the legislature and legislation. The cases deal with the issue of how to balance conflicting values. Mr. Makuch submitted that the balance must be struck in protecting watercourses, which is not the equivalent to maintaining open and green space at the expense of common law and individual rights in property. To prevent abuse of power, Mr. Makuch submitted that the tribunal must ensure that it has sufficient clear evidence to override common law rights.
In LaRush v. Metropolitan Toronto and Region Conservation Authority,  1 O.R. 300 (C. of A.), the importance of examining the purpose of the legislation was evaluated. The question for determination was whether the proposed expropriation was related to the natural resource of the watershed. At page 305, the Court states:
"Conservation" or "natural resources" is not defined in the Act. It is plain, however, that the only conservation with which the Authority is to be concerned is conservation of natural resources including control of water to prevent floods or pollution. I am satisfied that "natural resources" as that expression is used throughout the Act cannot be taken to include farm land as such or an artificially created investment or undertaking such as Pioneer Village. To include either of these items in the meaning of the term "natural resources" would not only strain unduly the usual and ordinary application of the phrase, but would confer almost limitless powers upon the authority - powers which simply do not emerge from a careful reading of the entire Act, let alone those provisions thereof which I have reproduced.
Mr. Makuch submitted that the tribunal should examine the purpose of the legislation to determine the limits of the appropriate exercise of power by the MTRCA.
Flooding and conservation of land must mean soil control of erosion and soil stability, according to Mr. Makuch who referred to Hansard excerpts described above, in respect of the amendments to the 1956 legislation, comments made in the legislature concerning section 17, the predecessor to the current section 28, the February 8, 1955 transcript refers to flood control and conservation purposes, by virtue of land flooded and danger to life caused by erosion. The February 18, 1959 Hansard transcript refers to "potential flood area". The Conservation Authorities Amendment Act, S.O. 1959, s. 3 adds to section 17(1) a new clause:
(d) prohibiting or regulating the placing or dumping of fill of any kind in any area below the high water mark of any river, creek or stream.
In Mr. Makuch's submission, at all times throughout the legislative amendments, the focus has been on the effect of water on flooding and erosion.
The current wording of clause 28(1)(f) first appears in the Conservation Authorities Amendment Act, 1964 S.O., c. 20, section 4. The February 20,1963 Hansard transcript at page 897 refers to "conservation" in connection with erosion.
Mr. Makuch submitted that "conservation" should be taken to mean erosion, the impact of water on soil stability, erosion and siltation. It was never intended to be for protection of open space, habitat, green space and rare species.
Referring to the MTRCA Watershed Plan (Ex. 10), at pages 22 and 23, section 2 refers to a description of resources as including river valleys, in keeping with its legislative purposes. However, the concept is, in fact, well defined river valleys, which is quoted in the staff report. Mr. Makuch submitted that the purpose of the legislation is reflected in the plan itself. At the middle of page 24, it states "focus on waterways". Its power to regulate land is directly connected with flooding, erosion, soil stability and soil control.
This same concept is reflected in the Greenspace Plan (Ex. 12) which focuses on stream valleys. In the 1992 Draft Plan, (Ex. 13), figure 5 and 6 deals with valleys and streams associated with a watercourse. Mr. Makuch submitted that the MTRCA wishes to broaden the principle. The purposes of a conservation authority are set out in the decision of Hinder v. Metropolitan Toronto and Region Conservation Authority, 16 O.M.B.R., October 22, 1984, 401, which set out that the purpose of the legislation is not to preserve land in its natural state. The purpose is to deal with flooding and related issues, not a general power to preserve land, to keep land as it is or to use to regenerate land. This purpose is narrower than the MTRCA seeks to have recognized, but is a reflection of its true purpose. It is similar to that found in LaRush at page 305, with the addition of erosion, soil stability and soil control.
The Flood Plain Policy Statement reinforces this analysis, according to Mr. Makuch. While it is directed to municipalities, having been passed pursuant to section 3 of the Planning Act, it also reflects the powers of a conservation authority as they may affect planning matters. At page 3, the province has determined, as a matter of policy, that tribunals must have regard to the provincial planning policy on floodplains.
The Objectives, set out at page 5, reflect a coordination of land use and management of water. Municipalities deal with land, a conservation authority deals with water. This reflects the purposes given by the legislature. At page 6, the Principles of the document are in respect of flooding issues, not land use or the state of environment, which are matters within the municipal sphere of authority. At page 12, conservation authorities are charged with flood plain management, erosion, soil stability and sediment control.
Referring to the Flood Plain Planning Policy Implementation Guidelines, at page 4, paragraph 2.2.3. refers to the mandate of conservation authorities regarding "implementation of flood plain management at the field level." At page 5, "Conservation Authorities administer these [Fill, Construction and Alteration to Waterways] Regulations from the perspective of water management and related hazards.... Fill, construction and Alteration to Waterways Regulations do not regulate land use."
At page 84, Mr. Makuch submitted that the limits of the purposes of conservation authorities are clearly spelled out:
5.2 Roles and responsibilities of Conservation Authorities
There are many different facets to water management in Ontario and as a result, different aspects fall within the mandates of various government ministries and agencies. With reference to water quantity and related hazards such as flooding and erosion, responsibility for implementation lies with the Conservation Authorities of Ontario where they exist and the Ministry of Natural Resources where they do not.
Conservation Authorities are autonomous agencies established, for the most part, on watershed boundaries as opposed to man-made boundaries. They are established as a result of local initiatives. ...
5.2.2 Mandate and Powers of a Conservation Authority
The mandate of a Conservation Authority is quite broad; it is:
"...to establish and undertake, in an area over which it has jurisdiction, a program designed to further the conservation, restoration, development and management of natural resources other than gas, oil, coal and minerals."
. . . . .
Although their mandate is broad, Conservation Authorities are considered to have prime responsibility for water management (water quantity and related hazards).
The Implementation Guidelines go on to describe the regulatory powers of conservation authorities at page 86, which Mr. Makuch characterized as the control of activities in and near watercourses in a comprehensive and yet permissive manner, focusing on hydraulic and hydrological concerns associated with water and water related hazards. At the top of page 87,
It must be stressed that Fill, Construction and Alteration to Waterways Regulations do not control land use. This is the responsibility of the municipalities and planning boards of Ontario. Conservation Authority regulations examine the technical feasibility of proposed activities from a water management perspective. The municipal land use planning process examines proposals from the point of view of relevant social, economic and environmental matters.
While it is highly desirable to have a development application under a Conservation Authority's regulation be in conformity with municipal official plans and/or zoning by-laws, they are not matters that can be legally considered under such a regulation.
Mr. Makuch submitted that broader matters are properly determined by Official Plans and Official Plan Amendments, such as the OPA 343 and the City of Vaughan Planning Strategy 1991 to 2011, being OPA 400 (Ex. 4B and 44 respectively). Section 5 of the latter, commencing at page 57, lists eight components encompassed by the environmental policies, being 1) valleylands, 2) forest resources, 3) fisheries resources, 4) surface water resources, 5) ground water resources, 6) wetland resources, 7) environmentally significant areas (ESA's), and 8) areas of natural and scientific interest (ANSI's). Mr. Makuch submitted that it is the purpose of the Official Plan and not the fill line determined by the MTRCA to encourage an ecosystem approach in regard to these environmental components. This is confirmed, according to Mr. Makuch, by comments made by the Committee of the Whole, Report No. 2, dated September 14, 1992 (Ex. 52) on the Draft Valley and Stream Corridor Management Program (Ex. 13), where at paragraph 1. c) it states:
1. That the MTRCA be advised that the City of Vaughan:
c) That the Metropolitan Toronto and Region Conservation Authority be encouraged to obtain legislative and regulatory backing for its programs and its definitions of the valley and stream corridor limits;
Referring to the Analysis commencing at page 2, and continuing on page 3, Mr. Makuch asked the tribunal to consider the City's concern as set out on the second full paragraph on page 3:
City Staff has a general concern with respect to the definition of the valley and stream corridors. It calls for a 10 metre setback from top-of-bank in most instances. Current legislation and regulation does not necessarily provide the authorization to regulate in this area, other than an (sic) through the Planning Act as a land use matter (See Attachment 2). If the Authority is to approach this in a consistently enforceable manner, it should be enshrined in its legislation or regulations. A rationalization of the roles of the MTRCA and the Ministries of Natural Resources and Environment in this area should also be supported.
Mr. Makuch submitted that the MTRCA cannot be supported in its change of focus where it has not clearly sought and obtained a change of mandate.
In the excerpt from the Crombie Commission Report, Regeneration (Ex. 33), Mr. Makuch refers to the jurisdiction of conservation authorities under section 28, set out at page 70 as limited to "... the use of water, alterations to watercourses, and filling and constructing in floodplains." At page 193, under the heading, "Implementing Greenway Plans", Mr. Makuch quoted the following:
... However, if the full range of resources and public enthusiasm for greenways is to be captured, we believe a co-operative approach, rather than a single agency, is required.
The active involvement of municipalities in creating greenways has particular potential: as the level of government closest to the people, municipalities can be expected to represent local interest in the greenway design, and to ensure that greenways are responsive to local needs. Through their planning powers and recreation programs, municipalities also have many opportunities to help make greenways a reality. If initiatives are viewed as simply another program of the conservation authority, or of the Province, they will fall far short of their potential. Municipalities must become full partners and, in some cases, they should become the leading partners in creating greenways.
Mr. Makuch reiterated that the objectives of conservation authorities are limited to water management, water quality and soil stability and erosion. He suggested that any departure from this could create a precedent for future applications to conservation authorities.
Mr. Makuch submitted that the tribunal must weigh the sufficiency of the evidence in regard to what constitutes an appropriate purpose under the legislation. The question which the tribunal should consider, in this regard, is whether there was sufficient evidence to support a refusal based upon a proper purpose. Mr. Makuch submitted that there is no watercourse evident on the subject lands. This being the case, there can be no issue of water management, meaning no issues of flooding, erosion, soil stability and sediment control. Referring to page 7 of Dr. Eagles' Witness Statement (Ex. 32), the three concerns set out with respect to cumulative effects of filling river valleys cannot be seen to apply to the subject lands, as they should not be regarded by the tribunal as a stream or river valley. Under cross-examination, Dr. Eagles has agreed that the subject lands played no part in concerns regarding ice jams.
Mr. Makuch submitted that there was no evidence of erosion. Mr. Gray's evidence that there was no erosion went unchallenged. Concerns regarding water quality, according to Mr. Brodie's evidence, could be controlled. The jurisdiction of the MTRCA is limited to concerns about water quantity and does not extend to water quality.
The temperature of the water may be raised through the engineered solutions to the placing of fill, but these are, in Mr. Makuch's submission, dealt with through the conditions imposed by Dr. Brown. Mr. Makuch submitted that there is no meaningful problem with the placement of fill for purposes of the Conservation Authorities Act. The evidence of Ms. Jarrett, he submitted, was not substantive with respect to the purposes of the legislation. Dr. Eagles' evidence that the subject lands should be preserved to regenerate is an issue of land use and not a matter for consideration in an application for permission. To take Dr. Eagles' approach to its logical conclusion, the fill line could be drawn anywhere, as long as the area encompassed is within the watershed. Mr. Makuch asked the tribunal to prefer the approach whereby the fill line could be drawn only through rigorous analysis.
Mr. Makuch submitted that Dr. Eagles did not study the issues before the tribunal, such as water management. Rather, his focus was on land use. Dr. Newbury, who advocated protection of a stream segment, was surprised to be told that there was no water in the bottom of the subject lands. He agreed that his analysis would not be applicable where there was no water. Dr. Newbury did not give evidence of a water management problem. Ms. Jarrett advocated preservation of the subject lands as a distinct valley feature. However, she did not give evidence of a water management problem, nor that there is any problem with erosion. No studies have been undertaken in this regard. Contrasted with this, the tribunal has heard Dr. Brown's evidence that there could be no watercourse on the subject lands without human intervention. Mr. Makuch invited the tribunal to rely on the evidence of Dr. Brown, Dr. Kitchen and Mr. Brodie that there would be no adverse impact on water management issues and that permission for the placement of fill should be given. The only evidence of consequence was that of Mr. Haley using the HEC2 model, the use of which was inappropriate according to Dr. Brown. The evidence of Mr. Brodie that water flow could be engineered to addresses any problems raised was not disputed.
Concerning the issue of maintenance and remedial measures related to watercourse movement, as set out at page 4 of the MTRCA Staff Report of March 13, 1992 (Ex. 7), Mr. Makuch points out that Mr. Tikiryan did not object to the proposal, having approved of the slope, installation of the perforated pipe and other engineering in relation to the placement of fill. These concerns have been raised by the MTRCA, with the City of Vaughan not being present, and could, in Mr. Makuch's submission, be dealt with through imposing conditions on the granting of permission. In summary, Mr. Makuch submitted that there is no evidence on which to base a refusal, which amount to interference with the private property rights of Mrs. Milani, owner of the appellant company.
In the event that he is wrong in his submissions, in other words, that the purpose of a conservation authority as set out in the legislation is not limited as he has suggested, such that the province is wrong, Crombie is wrong, and a conservation authority can preserve open space in the absence of water management concerns, Mr. Makuch submitted that the tribunal must determine whether there is evidence that permission to place fill should not be granted.
Mr. Makuch submitted that, if there were a serious environmental concern to be addressed, the Town of Vaughan would be present. OPA's 343 and 400 raise questions of the environment. Open space, habitat, wildlife corridors, ANSI's or ESA's are not raised and there was no evidence that the site performs a significant environmental or ecological function. Dr. Kitchen's evidence is that the subject lands perform a minor function, not being a corridor and likely to be filled at one end, due to the projected extension of the Highway 427 across the north end.
If the subject lands were a significant feature for any number of reasons, Mr. Makuch submitted that it would have been so designated under OPA 400. Although it is close to the main channel of the West Rainbow Creek, which is captured by OPA 343, the subject lands have not been specifically set out within that document. The relevant zoning by-law does not zone the subject lands as open space.
Mr. Makuch invited the tribunal to conclude that there is no evidence to support the concept that the subject lands should be preserved in their undeveloped state as open lands. To find that they should be kept undeveloped greenways or open space would amount to expropriation or an interim control by-law, measures which the City of Vaughan itself has not seen fit to undertake. Mr. Makuch submitted that there is no evidence of environmental significance, and if there were, it would be within the jurisdiction of the City of Vaughan to deal with it.
Referring to the proposition of the subject lands as a valley corridor, Mr. Makuch submitted that they do not form part of the West Rainbow Valley, but rather is an open field through the north end of which the proposed construction of Highway 427 will run. Dr. Brown's Cross-section of the Lineal Face through the site and Rainbow Creek (Ex. 55) indicates that there is no enclosure within the subject lands, and therefore they are not part of the greater Rainbow Creek watershed.
The tribunal should find, he submitted, that according to the evidence of Dr. Brown and Dr. Newbury, that there can be no cumulative impact resulting from the granting of permission to place fill on the subject lands, as they are not part of the valley corridor. There is no cumulative analysis provided by the respondent to support its position that no fill should be placed. Similarly, there is no specific information regarding the precedent which the respondent claims would be created by the granting of permission.
Mr. Makuch submitted that the respondent's refusal would act to preserve the subject lands as open space with no significance of purpose in any cogent way. All problems could be dealt with through engineered solutions, in keeping with the three conditions set out by Dr. Brown. No broad water quality problems would be created through the placing of fill and the City of Vaughan would be prepared to take care of any necessary maintenance. Mr. Makuch submitted that the proposed development would be comparable to that in Figure 5 of Dr. Newbury's Witness Statement (Ex. 42) which depicts as desirable mixed development intensified along major routes with watercourses and most greenspace preserved in its natural state. He submitted that the subject lands meet these criteria, being no more sensitive than the adjacent table land.
Mr. Makuch submitted that there had been no proper analysis by the respondent of the impact on the subject lands if filling were allowed, with Dr. Brown having been the only expert who walked the site. There is no evidence of a measurable effect of filling, the subject lands are not a stream segment, as asserted by Dr. Newbury initially, and engineering solutions would meet all concerns. The loss of a landform is not a purpose for which a conservation authority can exercise its powers as it is not a water management function.
If permission to place fill were granted, the outcome would be the dedication of 15 hectares of land plus $135,000.00 for improvements which must be regarded as advantageous. There is no evidence of soil instability, erosion or sediment control problem. Nor were the calculations of the HEC2 model indicative of flooding. Therefore, the tribunal is invited to conclude that it should grant the permission.
Mr. Makuch submitted that by rule of law, the greening of the Greater Toronto Area does not justify allowing the MTRCA to do what is not set out in the enabling legislation. Rather, the Official Plan purpose is the proper way to go to achieve these objectives.
Mr. Makuch submitted that the appeal should be allowed, and that the requested permit should be granted, with the following conditions attached:
- Before disturbance of the site occurs, an MTRCA/Ministry of Natural Resources ("MNR") approved erosion and sediment control facility must be installed.
- The erosion and sediment control facility must be meticulously maintained until such time as all of the approved fill has been placed and the grades have been stabilized to the satisfaction of the MTRCA and MNR.
- The allowable fill must be placed under the supervision of and in accordance with plans prepared by a qualified geotechnical engineer.
On behalf of the MTRCA:
Jurisdiction of the Tribunal:
Mr. Wigley submitted that the placing of fill on the subject lands will "in the opinion of the authority" affect the conservation of land, being lands contained within the scheduled areas as set out in O. Reg. 293/86. There is clear jurisdiction in the MTRCA to make a determination on what may be affected by the placing of fill, which was correctly exercised by it. On an appeal to the Mining and Lands Commissioner (the "tribunal"), the decision of the MTRCA can be replaced if there is a clear error. It is not the function of the tribunal to replace the opinion of the MTRCA with its own, as the latter is familiar with local conditions, is aware of the pressures for development in the area, has the measure of expertise required to make the determination and has the means to assess the potential impact of the proposed placing of fill.
Mr. Wigley submitted that there are no facts in error and no irrelevant facts taken into consideration in making its determination. He submitted that none of the facts contained in the staff report have been contradicted. While the subject lands are not a distinct watercourse, the existence of external and site drainage, plus a small wet area at the bottom where it enters the main channel of the West Rainbow Creek, are all facts properly considered by the respondent. This is evidenced by the 1977 photograph (Ex. 14B) and evidence that the subject lands are meadowed grasslands.
Concerning any potential errors of law, Mr. Wigley invited the tribunal to consider what "conservation of land" means. He made reference both to the meaning of the words and the purposes for which they were included within the legislation.
Conservation, in his submission, means the protection, preservation and management of land forms and attributes of land forms, if possible where they exist. If applied to this situation, the elimination of the valley feature contained on the subject lands.
Subsection 28(1) of the Conservation Authorities Act does not currently apply to table land. The regulation passed pursuant to the three clauses of subsection 28(1) have received Cabinet sanction, both in regards of the need to make an application and in regards of the locations which will be affected. Subsection 28(5) allows for an appeal to the Minister of Natural Resources, if permission to place fill is refused. While such an appeal was the subject matter of this hearing, Mr. Wigley points out that the original application is not for a detention and retention pond. Mr. Wigley submitted that the tribunal could not grant permission for the placing of fill with conditions which did not form part of the original application. Therefore, the appellants request that the appeal should be allowed with conditions cannot, in Mr. Wigley's submission, be granted.
Referring to clause 6(6)(b) and subsection 6(7) of the Ministry of Natural Resources Act, R.S.O. 1990, c. M.31, Mr. Wigley submitted that Part VI of the Mining Act, R.S.O. 1990, c. M.14 applies with necessary modifications. The power of the Minister to hear appeals pursuant to subsection 28(5) of the Conservation Authorities Act has been assigned to the tribunal by regulation passed pursuant to the latter subsection, being O. Reg. 364/82 now R.R.O. 795/90.
Mr. Wigley submitted that Part VI of the Mining Act is procedural in nature. Section 121 refers to making of decisions based upon the real merits and justice of the case. Had the appeal been directly to the tribunal and not assigned by the Minister of Natural Resources, he submitted that this section would apply. Mr. Wigley submitted that there is not indication within the Mining Act that an appeal is a hearing de novo, whereby the parties are entitled to begin from scratch, when the matter under consideration is an appeal under the Conservation Authorities Act. Therefore, while procedurally the hearing has historically seen presentation of all relevant evidence from the initial hearing, this process does not alter the nature of the proceedings before the tribunal, being that of an appeal. A decision on the real justice and merits, pursuant to section 121 of the Mining Act, is not applicable. Mr. Wigley submitted that the tribunal cannot make decisions on the applicability of the programs, policies and decisions of a conservation authority.
The appeal is not a broad review of everything that went on before the conservation authority. Rather, it is limited to findings by the tribunal that there is an error of fact or law by which the conservation authority has acted outside its jurisdiction. Therefore, the tribunal may not replace the opinion of the conservation authority with its own. If the tribunal is of the opinion that the conservation authority was wrong, then the decision can be interfered with.
Describing the scope of the process, Mr. Wigley referred to Union Gas Company of Canada Limited v. Sydenham Gas and Petroleum Company Limited,  S.C.R. 185. Kerwin C.J. at page 188, last paragraph, sets out that while the Court of Appeal felt authorized to substitute its opinion for that of the Ontario Fuel Board, the Supreme Court felt it could not do so. Rather, the jurisdiction of the Court of Appeal is to examine questions of law or fact. Rand J. at page 190 states that the Court exceeded its powers by exercising administrative jurisdiction to substitute its judgement for that of the Board. Mr. Wigley submitted that the applicant wants a new decision on the matter, while the decision of the respondent is supportable in fact and in law.
In Clay v. Board of Reference, (1986) 25 Admin L.R. 121, Hutchison J. of the Alberta Court of Queen's Bench considered whether a board of reference could substitute its view for that of the school board. The board of reference held a hearing to determine whether the school board had acted reasonably in reaching its determination. The Court found that this was appropriate. Mr. Wigley submitted that the decision of the respondent cannot be supplanted by the opinion of the tribunal, as in doing so, it would lose jurisdiction.
In C.T.C. Dealer Holdings Ltd. v. Ontario Securities Commission, (1987) 23 Admin L.R. 285, the relevant appeal provisions to the Divisional Court are set out at pages 298 to 299. Notwithstanding the broad wording, the Court found that it did not constitute a warrant to re-try the case. Mr. Wigley submitted that the Conservation Authorities Act gives broad leeway to conservation authorities to make their determinations. The right of appeal is not a warrant to re-try the case, and cannot be found to support a hearing de novo, but only to determine if an error was made. There is no power in the tribunal to supplant the decision of the MTRCA.
In Nicholson Ltd. v. Minister of National Revenue,  4 D.L.R. 683, the Exchequer Court found that its appellate jurisdiction does not encompass a new hearing, when considering an appeal from the Commissioner of Income Tax. The Court examined whether the discretion was exercised in a proper manner. In that case there was no question of what had occurred. The right of appeal allowed the court to exercise a duty of supervision. In determining that there was procedural fairness, the Court found that there was no error of jurisdiction. The Court was given specific authority in the legislation to substitute its opinion, but found that it would not do so if the decision of the lower court was reasonable.
In Re Coles Sporting Goods Ltd. et al., (1965) 2 O.R. 243 (C.A.) and (1965) 1 O.R. 331 (H. Ct.), the relevant provision of the Corporations Act refers to a "review" which was held to encompass broad powers. However, notwithstanding that the Court had the opportunity to supplant its opinion for that of the Provincial Secretary, it held that it would only do so upon a successful attack on the grounds of a failure to act on a proper principle. Mr. Wigley submitted that the word, "review" is not used in subsection 28(5) of the Conservation Authorities Act. Therefore, the tribunal cannot exercise a jurisdiction broader than what was exercised by the Court with the broader wording. He reiterated that only in cases of error could the tribunal replace the opinion of the MTRCA with its own.
In Mulholland v. The King, et al.  2 D.L.R. 114, at pages 118 to 119, on an appeal to the Exchequer Court, it was held in an appeal an error of fact or law must be demonstrated. Mr. Wigley submitted that the meaning of "conservation of land" is meant to encompass protection of the environment and protection of natural resources.
In Robert Willis v. Cataraqui Region Conservation Authority, September 25, 1992, the tribunal found that the decision of the conservation authority was not unreasonable, and as it had not exceeded its mandate, the tribunal would not interfere with the decision.
In Robert D.P. Blake v. Grand River Conservation Authority, March 20, 1992, the tribunal characterized appeals as "... a safeguard against arbitrary or unreasonable acts..." This case is another recognition that the decision of the tribunal should not replace that of the conservation authority.
Concerning the nature of the hearing, section 113 of the Mining Act reads,
113. The Commissioner shall determine,
(a) an appeal from a recorder, after a hearing by way of a new hearing; and
(b) a dispute referred to in section 48 or a claim, question, dispute or other matter within his or her jurisdiction after a hearing,
pursuant to an appointment fixing the time and place for the hearing.
Mr. Wigley submitted that it is clause (b) which applies to appeals under subsection 28(5) of the Conservation Authorities Act. He points out that the clause does not require a new hearing. Applying the wording of subsection 6(6)(b), it is not necessary to make any modifications in order to give the clause meaning. Rather, clause 113(b) can only be considered in so far as it is a procedural requirement. As a provision, it is not within the Conservation Authorities Act that there be a new hearing. Mr. Wigley referred to the process under a previous Commissioner, Grant Ferguson, where he submitted the fundamental nature of the appeal was not changed. Mr. Wigley stated that the tribunal could replace the decision of the conservation authority if it was not proper. As the conservation authority hearings did not result in transcripts and a record, the process which produced these was allowed upon appeal, and the appellant was not precluded from putting forward its complete case. However, this did not change the fundamental nature of the appeal. The production of evidence was not limited. Section 113 of the Mining Act provides for a hearing, but does not give the tribunal authority to revamp the burden of proof required to overturn a decision.
Error of law:
The question the tribunal must determine was whether the MTRCA exceeded its jurisdiction in determining what constitutes "conservation of land." It has been a determination of this conservation authority that valley and associated land forms are natural resources which are to be conserved. This cannot be done if they are permitted to be filled.
Referring to section 20 of the Conservation Authorities Act, it states that the objects of a conservation "authority are to establish and undertake, in the area over which it has jurisdiction, a program designed to further the conservation, restoration, development and management of natural resources other than gas, oil, coal and minerals" meaning, in Mr. Wigley's words, non-exploitable resources. All witnesses essentially agreed that the valley feature is a natural resource, which provides a series of functions. "Natural resources" is a concept which may mean more than just the land, or it may be limited to the land. Within the objects set out in section 20, it is submitted that at the very least, "natural resources" will fall into the meaning of the conservation of land. The conservation authorities are charged with conserving, restoring, managing and developing natural resources.
The Staff Report (Ex. 7) defines conservation of land to include the "wise use" of the land, which is a recognition of the fundamental relationship between features within an ecosystem. Mr. Wigley reviewed the evidence of the witnesses as it relates to conservation of land.
The staff of the MTRCA, along with Dr. Newbury and Dr. Eagles, see conservation of land related to issues of flooding, vegetation, habitat, corridor movement, ground water impact, impact on fish along with those functions delineated by Mr. Makuch, of erosion, soil stability and sediment control.
Dr. Brown agrees that conservation of land encompasses protection and preservation from harm, if this valley feature is kept open. The valley land form is an integral part of the natural resources and conservation of land issue.
Dr. Eagles gave evidence that the preservation of the valley functions and attributes is essential to the well being of the West Rainbow Valley Creek. Dr. Kitchen stated that there is no defined valley feature. However, he recognized that it does perform some minor function in relation to habitat and plants. The opportunity to regenerate which this valley feature presents cannot be accomplished if it is permitted to be filled in. The ability to regenerate will lead to greater maturity of species and greater significance. Dr. Brown's evidence that the Roybridge Lands to the south merit greater protection because there is a permanent watercourse eludes the issue of impact of piping of water. Mr. Wigley submitted that other functions aside from water must be recognized and given weight, such as habitat, sedimentation and nutrient transfer. All of the experts recognized that the valley has attributes, and this must lead to the conclusion that the valley is worth preserving.
In the glossary of the MTRCA Watershed Plan (Ex. 10), conservation is defined as "the protection, improvement and use of natural resources according to principles that will assure their highest economic or social benefits". The conservation ethic is recognized as an objective of the greater community.
In Rosenberg et al. v. Grand River Conservation Authority et al., 12 O.R. (2d) 496 (C.A.), the Court of Appeal addressed the question of whether the conservation authority could give up or sell land. The Court found that it was a question of management and compromise. At page 508, the Court stated:
"Conservation" is not defined in the Act. It is not a term of art. Dictionary meanings all have the word "preservation" in their definitions, as well as "guard from harm", "keep with care", "preserve from loss, decay, injury or violation". Conservation is an evolving concept. ...
Within the broad ambit of its ordinary meaning, specific programmes or actions may or may not be for a conservation purpose, depending on the particular factual situation. Within that broad ambit, there is always a likelihood that some members of an authority may differ from others on whether a purpose falls within or without a conservation purpose. That difference of opinion does not make the purpose ultra vires.
Under the Rules of Statutory Interpretation, the tribunal is required to give plain and ordinary meaning of words. Conservation of land is not, in Mr. Wigley's submission, limited to erosion and soil stability. However, it may also not mean to retain in a state of nature. Compromise will determine its meaning.
The meaning of conservation of land is recognized as evolving and not static. It is not the situation that its meaning cannot change without a change in legislation. The evidence of Ms. Jarrett has shown how policies, practices and procedures are changing. While the emphasis may be on flood related concerns, there is an evolution in thinking on this subject. The evidence of Dr. Newbury has shown how the upper levels and headwaters of a watercourse are harder to distinguish from established watercourses downstream. The Elora Gorge in Rosenberg was found to be a natural resource worth preserving.
Reading again at page 509:
Where a conservation authority is faced with plans of another public body, such as a county, and those plans will cause aesthetic or material damage to the conservation area, and an alternative plan may, on balance, cause less damage, the authority as to make a decision as to which plan is better, for its purposes. ...
Conservation purposes should not be given a narrow construction. Those who are supporting the plaintiffs in their endeavours would doubtless agree with this principle, if it were being applied in a different context. An authority cannot arbitrarily decide that some project, either of its own or of another public body, falls within the ambit of conservation purposes. The conclusion must be one that on consideration of all of the circumstances an authority could reasonably reach. The authority has a discretion in the sense that its members must exercise their own best judgment on whether a conservation purpose if furthered by a particular project. The Courts cannot and should not interfere merely because, on the same evidence, it might have reached a different conclusion.
Mr. Wigley compared the reasoning in the situation in Rosenberg to the executive power of a conservation authority to grant permission for the placing of fill only where it will not affect the conservation of land. He reiterated that the decision of the MTRCA should not be interfered with.
At page 511, the Court distinguished the decision in LaRush, where the attempt to protect Black Creek Pioneer Village was found to relate to the MTRCA's investment in the site, rather than a proper conservation purpose.
In the American case of Copper Valley Machine Works v. Cecil D. Angus, 653 F.2d 595 (1981), the Court held that "conservation" was to be given its ordinary meaning, without the necessity of looking at its historical context.
The preamble to the Conservation Authorities Act, S.O. 1946, c. 11 states:
An Act to provide for the Establishment of Conservation Authorities for the purposes of the Conservation, Restoration and Development of Natural Resources, other than Gas, Oil, Coal and Minerals and for the Prevention of Floods and of Water Pollution.
Clause 1(j) sets out the definition of "schemes", which includes the above. Section 13 sets out both purposes. Section 17 of the Conservation Authorities Amendment Act, 1956, S.O. 1956, c. 9 shows the evolution, of the powers of conservation authorities. Clause 3(a) of the Conservation Authorities Amendment Act, 1959, S.O. 1959, c. 18, adds the clause regarding dumping or placing of fill. In the Conservation Authorities Act, R.S.O. 1960, c. 62, section 20 as it now exists is evident. In the Conservation Authorities Amendment Act, 1961-1962, S.O. 1961-1962, section 9 repeals the previous clause concerning the placing of fill and replaces it with a new one which governs both the placing of fill or construction of a structure below the high water mark of a lake, river, creek or stream. In the Conservation Authorities Amendment Act, 1962-1963, S.O. 1962-1963, the opinion of the conservation authorities becomes determinative for the first time. In the Conservation Authorities Act, 1968, S.O. 1968, c. 15, section 18 sets out the objects of the conservation authorities, and section 19 sets out the regulation making powers, being the pre-curser to the current section 20.
Mr. Wigley submitted that the objects of the conservation authorities are greater than being limited solely to flooding. The conservation of land is a separate and distinct portion of their mandate. The Act has evolved since 1946. Conservation of land has evolved to mean something more than concerns regarding flooding or pollution. By virtue of the fact that the phrase "conservation of land" was inserted when it was not in the original legislation means that it has a larger meaning than control of flooding. Hansard reflects this evolving concept. There is a distinction between conservation of land and the high water mark in the 1961-1962 legislation. At page 898 of the February 20, 1963 Hansard, discussions in the legislature concerned lakeshore erosion, again pointing to greater meaning than just issues of water management.
Dr. Brown has stated that the purpose of the regulation is to ensure that any development is done properly. According to Mr. Wigley, this interpretation cannot be adopted. Clauses 28(1)(b)(e) and (f) give conservation authorities clear powers of prohibition. O. Reg. 293/86, which was brought into effect by Cabinet, so that it cannot be construed as merely the view of the MTRCA. While an application to place fill will be entertained, the permission is an exception to the prohibition when it is granted by the executive. The legislature and Cabinet have addressed this issue as being of general provincial concern.
The powers given by the Act and regulation do not mean that the MTRCA will always refuse permission. There may be instances when the toe of the slope cannot have fill placed upon it for conservation of land purposes, while the table land above would be available for development.
While top of the bank walks are done with a view of looking at development lots, the conservation of land mandate of a conservation authority allows for management of a valuable resource. Where the situation is not exceptional and there is no other means of preserving and protecting the function of the natural resource, the conservation of land principle requires that permission be refused.
In Hinder v. Metropolitan Toronto and Region Conservation Authority, 16 O.M.B.R., October 22, 1984, 401, the tribunal looked at the meaning of "conservation" in comparison with the Wilderness Areas Act, R.S.O. 1980 c. 533, which uses the word "preservation", and found that the former had a broader meaning than the latter. Mr. Wigley asked that the tribunal not adopt the reasoning of the previous decision. He submitted that conservation should be given a broader meaning, embodying the concepts of compromise, protection and preservation.
As the concept of conservation has evolved, Mr. Wigley submitted that it should be found to move beyond questions of preservation and protection to matters of ecological and landscape diversity.
Mr. Wigley submitted that there is sufficient evidence in this appeal to support a finding that the placing of fill would affect the conservation of land, and that the appeal should be dismissed. The valley feature, in his submission, is identifiable. Even Dr. Brown recognized in his evidence that the first 130 feet from the main valley has a steep slope on one side which tapers further along. Dr. Brown has tried to support the argument that there is no top of bank in this valley feature. By this he is attempting to ensure that a greater portion of land is available for development. The slopes along the main channel of the West Rainbow Valley Creek are virtually identical, however, and no one has questioned whether there is a top of slope there. According to Dr. Newbury, the valley should be left in its natural state to perform certain functions. Dr. Eagles has recognized the valley as being enclosed. Dr. Kitchen has described the valley as a minor tributary valley. Only Dr. Brown is questioning the open space designation.
The valley feature performs very important functions. It represents a portion of the subwatershed of the West Rainbow Creek. There are plants only found in permanently wet areas at its mouth. It has an intermittent water flow which moves in the direction of its mouth. From 1946 to 1977 there was a visible channel. The valley has simply not healed from the intrusions made by man. There are ponds at the bottom of this feature, which come from waters draining from this valley. While described as 9 or 10 hectares of farm fields, notwithstanding that there is currently no visible channel, the sheet flow of waters within this valley represent transportation of water. It could be regarded as a very wide intermittent watercourse.
The use of the HEC2 model should be preferred for determining flooding as opposed to the rational method. The rational method calculates rainfall over one hour versus the HEC2 model which uses eight hours.
Regarding drainage and the watershed, the evidence of Dr. Eagles was that it took a long time to form, yet the stream which once flowed was ploughed under very quickly. The vegetation, which contributes to diversity, was very recently ripped out. Mr. Wigley commented on the curious timing of this action, and stated that the value of vegetation as it now exists being relatively minor, would leave other similar or more mature stream valleys, such as the Roybridge valley to the south, open to the same fate.
Mr. Wigley submitted that natural resources such as valley features are limited, and should not be regarded through one single snap shot in time. The very type of maturing of this resource which the MTRCA is encouraging is also promoted along the main channel of the creek, which has gone unquestioned, so that its value must be recognized. The attention of the tribunal was drawn to the vegetative diversity which can be found within the feature, and not just between features. There are a multitude of micro climates found.
Permission to place fill would cause a loss of open space and deprive the area of one form of landscape diversity. While the flood storage in a regional storm is not as great as within the main channel, it does perform a function of retarding flows and this storage function will be particularly desirable in times of ice jams. The opportunity for nutrient creation and transfer should not be overlooked. Also provided is temperature stability, through ground water. There is no doubt that the groundwater is close to the surface at the mouth of the valley, so that the function is not simply one of recharge, as put forth by Dr. Brown. Should the placement of fill be allowed, according to the evidence of Dr. Newbury, the result would be a narrower, deeper channel at the mouth of the feature.
In considering the application, Mr. Wigley submitted that there are no benefits for conservation of land purposes by the proposed fill. Rather, it is simply an opportunity for the developer to obtain a maximum number of building lots on the subject lands. Notwithstanding that the functions performed by the feature are small compared to the main channel, they merit being retained, for purposes of conservation of land.
The impact of granting of permission to fill this valley feature will have implications for at least 9 watercourses in this watershed, not the least of which is the Roybridge valley to the south. It must be recognized that if everyone who applied were to be given permission to place fill, there will be no storage capacity left in the watershed, except through the use of the cut and fill method. While this feature represents an infinitesimally small portion of the flood storage capacity, the cumulative effect of filling of many or all such opportunities is a legitimate concern.
By the same reasoning, Mr. Wigley submitted that river valleys themselves must be regarded as finite resources, which will be cumulatively impacted by permission being granted, as evidenced in the Roybridge Lands.
If the top of the bank cut off becomes the precedent, there can be no reason to distinguish between this situation and that of numerous others. The precedential impact of allowing the appeal cannot be underestimated. Already an application for the Roybridge valley has been received by the respondent. These two features are interconnected, and it would be a small matter to have the Official Plan amended to have these lands classed as industrial. The Roybridge application (Ex. 15A and C) sets out that the drainage area for this portion of the watercourse is 39 hectares, yet the introduction of the Highway 427 extension would see this reduced to four hectares.
Up to 64 percent of the entire watercourse is vulnerable to this type of activity. While this portion may represent only 3.4 percent, cumulative filling of first order streams will have a considerable impact. It must be recognized that streams and features within the headwaters of a watercourse are less defined. According to Dr. Newbury, the greater the number of first order streams, the less defined they are likely to be. This application represents a clear threat to the valley feature and its function as a river valley.
While it has been argued that the regulation is not designed to address these concerns, Mr. Wigley submitted that the respondent should not be precluded from using whatever tools are at its disposal in attempting to prevent the filling of this type of feature.
Zoning and the Official Plan in the context of Cumulative Effect:
Zoning and Official Plans are not effective tools to prevent filling of distinct valley features. First of all, they are subject to change, having been created to address land use issues. An example of how ineffective the land use designations can be, many backyards have been allowed within the fill line and have subsequently seen the building of either decks or swimming pools. Zoning and Official Plans are political decisions and subject to interpretation, as was apparent from evidence at the hearing on where the top of bank is found. The language of such documents is open to interpretation, so that, as Dr. Brown attempted to do in this case, the top of bank of tributary valleys, in his opinion, are not applicable and in fact do not exist. If the land is zoned as open space, and filling is allowed, the appellant can apply to have the Official Plan amended.
The Conservation Authorities Act is the only means by which features such as this tributary valley can be kept in their natural state. It is the MTRCA which is given the authority to make the determination of whether this land should be protected, so that it becomes irrelevant how the municipality regards it. Mr. Wigley submitted that, according to the argument advanced by the appellant, if the municipality determines that the subject lands are to be zoned as industrial, further consideration by the MTRCA should not be required. The opportunity of the MTRCA to exercise its legislative mandate over issues arising with respect to the subject lands would be lost. In similar situations, the exercise of land use planning, including which lands should be classified as open space, would permit lands such as these to avoid proper consideration by the conservation authority. Mr. Wigley stated that the Town of Vaughan is not a party to this action and normally would not be permitted standing, so that its absence at the hearing is of no significance. Planning matters go before the Ontario Municipal Board. Once again, Mr. Wigley reiterated how Official Plans can change. However, the position taken by the MTRCA is unlikely to change.
Overall Health of the System:
Mr. Wigley submitted that one must consider the overall health of the system in determining whether the application to place fill should be allowed. According to Dr. Newbury, if too many parts of the stream are eliminated, the health of the entire system will become critical. Factors to be considered are the impact on water temperatures, ongoing maintenance responsibility for water retention and detention ponds, including whose responsibility they will become, nutrient transfer functions, lost habitat, lost landscape diversity and lost ecological diversity.
The site specific approach does not work for purposes of making this assessment. To proceed on this basis would result in one narrow channel forming the entire creek, eliminating all diversity. The conservation of land issue involves all of the policies and programs of the respondent. The cumulative impact cannot be accurately modeled using known methods. However, the tribunal is being asked to weigh issues of quality versus quantity. Mr. Wigley submitted that if the opinion of the respondent is reasonable and can be reasonably supported on the evidence, the appeal should be dismissed.
Error of Fact:
Mr. Wigley submitted that there are no errors of fact shown in this case. The drainage area of the watercourse is known. Notwithstanding that interpretation of facts have been disputed, there were no errors of fact used in arriving at the respondent's decision.
Official Plan and by-Laws:
Mr. Wigley submitted that it is not necessary for a conservation authority to look at Official Plans and by-laws in reaching its determinations. The issues are confined to matters listed in the Conservation Authorities Act, namely, control of flooding, pollution or the conservation of land. The determination of what constitutes "conservation of land" should be determined by the conservation authority in the context of its programs and policies, and should not be governed by the municipalities in question.
Notwithstanding its position on this matter, Mr. Wigley states that the MTRCA may look to the Official Plan Amendments in this case as a reflection of the ideas, concepts and values which are embodied by "conservation of land". The City of Vaughan clearly recognizes the valleys as being sufficiently important to be part of its environmental policies and considers preservation as a goal it has set, being a wiser use than the alternatives. Similarly, both Kanter and Crombie have recognized similar ideas and concepts which must be recognized as inherent in the phrase "conservation of land". At page 39 in Kanter's report (Ex. 34B) reference is made to the natural functions performed by valley lands. In Regenerations (Ex. 33) Crombie recognizes that one must work within the ecosystem, not impose man made standards over it. Within the Report of the Committee of the Whole to Council of the Town of Vaughan (Ex. 52) development is set out as limited to within 10 feet of the top of the bank. This expands the area of protections beyond the valleys themselves, so that not only the valleys will be protected.
The conservation authority, however, has its own legislation, with a distinct set of objects, upon which a decision is mandated. If the MTRCA were to delegate its decision making power to the municipality, this would clearly be improper. The MTRCA is charged with looking at the whole watershed. This is quite a different matter from falling prey to the stroke of a planning official's pen in drawing up open space. While there is strong wording within the municipal planning documents regarding open space and environmental lands, there is no guarantee that municipal decisions will reflect those of the conservation authority.
Similarly, the Floodplain Implementation Guidelines are designed to apply to lands within the flood plain. It does not address open space or green space. If the MTRCA is not allowed to make determinations on what may occur between the flood line and the fill line, they would lose the ability to regulate. The Implementation Guidelines are reflective of Ms. Jarrett's concerns regarding fragmentation of the natural resource. The municipality does not offer protection regarding filling. The Flood Plain Planning Policy only deals with lands within the flood area. It is the MTRCA which has developed policies to designed to make determinations on land between the flood lines and the land which is outside of its jurisdiction. The integrated approach is designed to protect natural resources. If the submissions of Mr. Makuch were to be followed, the result would be the fragmentation of the watershed.
Mr. Wigley responded to the three conditions requested by the appellant. He submitted that there is no power to add conditions to an application, as this is not contemplated by the legislation. Therefore, there is no power to provide for a detention or retention pond.
In the alternative, if the placing of fill is allowed, without similar placing of fill on the Roybridge Lands, the subject lands are inaccessible. Mr. Wigley submitted that the application ought not to be allowed until the issue of access can be satisfactorily addressed.
Thirdly, Highway 427 at this time is not a certainty, but is simply a line on a plan.
Mr. Makuch in reply:
Mr. Makuch submitted that Mr. Wigley has confused an appeal within the court system to an appeal to an administrative tribunal. Reference was made to pages 7-30 to 7-36 of Hogg, Peter J., Constitutional Law of Canada. 3rd ed. (supp.) Carswell, (city and date unavailable), dealing with Administrative Tribunals and in particular to the test in Re Residential Tenancies Act (1981)  1 S.C.R. 714. The Supreme Court asked three questions commencing at page 7-31. First, does the impugned power broadly conform to a power exercised at confederation by a superior, district or county court. Secondly, if historically the answer is yes, is the impugned power "judicial"? If yes to both, thirdly, when examined in its institutional setting, has "... the power in its institutional setting ... changed its character sufficiently to negate the broad conformity with superior, district or county court jurisdiction.". Mr. Wigley submitted that the powers of the tribunal to deal conservation authority matters did not exist at Confederation.
The argument that the jurisdiction of the tribunal is like a court ignores the basic principle of administrative law, where a question of error of law should be collateral. If there is an error of law in the case before the tribunal, it is properly a matter for judicial review and not for an appeal. There should be no confusion, in his submission, between an appeal to the courts and an appeal to a tribunal. An appeal to the Minister in this case means an administrative tribunal appeal and should be determined on the merits.
In the argument supporting a de novohearing, Jones D.P., de Villars A., Principles of Administrative Law. Calgary: Carswell, 1985 was quoted. Pages 339 to 341 discuss the issue of Appellate Exercise of Discretion. At the top of page 140, second line,
In principle, the general rule should be the reverse: where an appeal is provided from the exercise of a statutory power which is discretionary in nature, the appellate body itself should be able to exercise the discretion granted by statute on the delegate from whom the appeal lies.
Mr. Makuch submitted that the cases referred to by Mr. Wigley deal with curial deference afforded by the courts to administrative tribunals and are not applicable to an appellate tribunal. If the appeal were limited to questions of error of law or fact, this would have been indicated in the legislation.
Section 121 of the Mining Act requires that decisions be on the real merits and justice of the case. The direction of the legislature is not narrow; it does not tell the tribunal not to interfere. Mr. Makuch submitted that the appeal allows for the whole matter to be determined on its merits by a new hearing. The wording of section 113, particularly clause (a), supports this.
The cases referred to by Mr. Wigley can be distinguished. In Clay, the application was for certiorari. The function of the court in this regard is narrower than an administrative tribunal. Mr. Wigley refuted this, by indicating that the court found that the Board of Referees did what it should. The trappings of a court in this tribunal are irrelevant. In CIT, the court set out that it would afford curial deference to the tribunal, recognizing the properties of expertise of the tribunal. In Nicholson, the appeal was to the court, which is clearly a different legislative scheme. In Coles, the court recognized that a "review" affords a wide appeal. There is no reason to construe a decision on the "real merits and substantial justice" any narrower. In Mulholland, the procedure was clearly that from an inferior to a superior court. This is clearly not the administrative law standard.
Mr. Makuch submitted that the appellant is afforded a full hearing on the merits because the Rules of Natural Justice require it where individual rights are affected. A hearing before a conservation authority is not a full and formal hearing. The courts will require a full hearing in such situations. The situation with this tribunal is similar to that of the Ontario Municipal Board. Re Zadrevec et al. and Town of Brampton,  3 O.R. 498 (C.A.) was referred to. Although an amendment to the official plan was involved, there was no meeting with public notice before the planning board or Council. A full hearing before the OMB was seen by the Court of Appeal as a means of transferring the judicial process from Council to the OMB. Mr. Wigley distinguished Zadrevec, as there was no initial hearing in that case.
Conservation of land:
The statutory condition of conservation of land, according to Mr. Makuch, should not be construed as an unlimited right to interfere with the rights of individual property holders. To characterize all physical features as natural resources overstates the objects of the MTRCA. Otherwise, it could regulate and manage private land located on all hill tops on the basis of wise use.
Referring to the Watershed Plan, and in particular, page 32, it states that the regulations are directed towards issues of flood control and water quantity. At page 37, reference is made to erosion and sediment control. The tribunal is asked to find that the regulation making powers in section 28 are limited to issues of flooding.
The top of the bank cannot be used to acquire land for open space. To allow this would be to use the fill line to expropriate land without compensation. The top of the bank has nothing to do with the fill line. This is a matter to be determined between the municipality and the authority. It is a question of land use that the MTRCA is attempting to regulate, which can only be done through the imposition of an interim control by-law. But the top of bank should not be combined with the fill line to enable the MTRCA to acquire property.
Mr. Makuch referred to Hinder. The wording of the order allowing the fill was that it be placed subject to the regime and supervision of the designer of the proposal. This is indicative of a condition imposed and not challenged. Clearly, in Mr. Makuch's submission, the tribunal has the authority to impose conditions. Referring to section 10 of the Interpretation Act, unless the contrary appears in the enabling legislation, where there is power given to do or enforce an act, all powers shall be understood to enable the this. Therefore, the tribunal is not limited to the Act, as this is clearly contrary to the intent of the legislation.
Mr. Wigley submitted that in this case, the imposition of conditions may result in the fettering of the discretion of the executive in a new application.
Findings of fact:
Jurisdiction of the tribunal:
The appeal under subsection 28(5) of the Conservation Authorities Act is to the Minister of Natural Resources, who has assigned this power and duty to the tribunal by regulation passed pursuant to the Ministry of Natural Resources Act. Subsection 6(7) of the latter statute states,
6. -(7) Part VI of the Mining Act applies with necessary modifications to the exercise of authorities, powers and duties assigned to the Commissioner under clause (6)(b).
It has been argued that provisions of Part VI of the Mining Act are largely procedural in nature. This is suggested by a decision of the Divisional Court in Re Drover and Grand River Conservation Authority, (1987) 62 O.R. (2d) 141, where Potts J. states at the bottom of page 144,
. . . The sections of the Mining Act which are made applicable to proceedings before the Commissioner pursuant to the Conservation Authorities Act are largely procedural in content.
However, in Drover the Court did not make its finding regarding the limitation periods set out for judicial review under what was then clause 156(1)(b), now clause 135(1)(b) of the Mining Act based solely on considerations of procedures. In determining whether the words in subsection 6(7) of the Ministry of Natural Resources Act, "with necessary modifications" could be applied to limit judicial review applications concerning decisions of the tribunal to the thirty day limitation after filing with the mining recorder, as set out in the Mining Act, the Court determined that the words in subsection 156(1), "except in proceedings provided for under this Act" were limited to mining matters. This determination is made in part due to the wording, "in this Act" and in part due to the reference to filing with the mining recorder. From this inquiry by the Court, it can be observed that the examination of the provisions of Part VI of the Mining Act must be more than a bald inquiry as to whether the particular section is procedural or not.
The thorough review of the relevant provisions of Part VI of the Mining Act was undertaken by the tribunal in Gordon Junker and Jeannette Junker v. Grand River Conservation Authority, CA 014-92, December, 14, 1992 (unreported), where it was determined that the broad powers contained in section 105 of the Mining Act give the tribunal judicial powers to determine any question which arises before the tribunal were limited to mining matters, by virtue of the wording "in this Act" contained in section 105 and the absence of clear statutory language to the contrary. These broad judicial powers pre-date confederation and for a time extended to patented as well as unpatented mining claims, the tribunal having been called a mining court between 1924 and 1956, with the mining judge being a section 96 judge and appointed by federal Order in Council. The issue which the tribunal found it could not determine, being a question of law, was whether a conservation authority in limiting the time during which a permit was granted had exceeded its authority. The attempt to appeal the conservation authority decision was made two years after the initial decision, and was found to fall outside the jurisdiction of the tribunal.
The tribunal is satisfied that Part VI of the Mining Act is not limited to procedural matters. This is supported through the wording of subsection 6(7) of the Ministry of Natural Resources Act, which sets out that Part VI applies "with necessary modifications to the exercise of authorities, powers and duties assigned...". Also in support of this finding are the words of clause (6)(a) of the Ministry of Natural Resources Act which states,
6. -(6) The Lieutenant Governor in Council may make regulations,
(a) establishing the rules of practice and procedure before the Commissioner or any tribunal provided for in subsection (4);
Subsection 6(7) and clause 6(6)(a) are not mutually exclusive, so that, in the event that regulations are made, the substantive provisions of Part VI of the Mining Act will continue to apply, as will those provisions where different procedural rules and procedures are not set out in regulation. An example of what might be contained in such rules would be allowing for service by ordinary mail, notwithstanding the provisions of subsection 115(3) of the Mining Act which currently requires service by registered mail. This method of service is designed to address the needs of the mining community, where parties before the tribunal may be in the field for weeks or months at a time.
The submissions of the parties focused on section 113 of the Mining Act, which reads,
113. The Commissioner shall determine,
(a) an appeal from a recorder, after a hearing by way of a new hearing, and
(b) a dispute referred to in section 48 or a claim, question or other matter within his or her jurisdiction after a hearing,
pursuant to an appointment fixing the time and place for the hearing.
In Pares and Baylore Resources Inc, (1987) 58 O.R. (2d) 707 (Div. Ct.), at page 709 McKinlay, J. states,
... I interpret s. 134(a) [now s. 113(a)] of the Act to deal with the nature of all hearings which come before the commissioner by way of appeal, and s. 134(b) [now 113(b)] to deal with hearings which come before him at first instance, which, of course, explains the absence in the latter subsection of the words " de novo".
This appeal before the commissioner was properly treated as a hearing de novo. ...
In addition to section 113 and section 121, which requires that a decision of the commissioner be on the "real merits and substantial justice of the case", the tribunal finds that, upon considering all of Part VI of the Mining Act that a process for a new hearing is contemplated. Included in this new process is that the commissioner may require a view of the subject property, s. 119(1), may require the assistance of professionals, s. 118 and is required to have evidence recorded, s. 125. Each of these sections does not contain any wording which appears to limit their applicability to mining matters, unlike the wording of section 105 discussed above.
As to whether there can be an appellate tribunal with powers of original jurisdiction, the tribunal was referred to the case of Re Residential Tenancies Act (1981)  1 S.C.R. 714. At page 735, Dickson, J. states,
... Thus the question of whether any particular function is "judicial" is not to be determined simply on the basis of procedural trappings. The primary issue is the nature of the question which the tribunal is called upon to decide. Where the tribunal is faced with a private dispute between parties, and is called upon to adjudicate through the application of a recognized body of rules in a manner consistent with fairness and impartiality, then normally, it is acting in a 'judicial capacity'. To borrow the terminology of Professor Ronald Dworkin, the judicial task involves questions of 'principle', that is, consideration of the competing rights of individuals or groups. This can be contrasted with questions of 'policy' involving competing views of the collective good of the community as a whole.
If, after examining the institutional context, it becomes apparent that the power is not being exercised as a "judicial power" then the inquiry need go no further for the power, within its institutional context, no longer conforms to a power or jurisdiction exercisable by a s. 96 court and the provincial scheme is valid....
The tribunal performs different functions, depending on the legislation involved. Under the Mining Act, the tribunal has been found by the Supreme Court of Canada to be an inferior court of appeal. Under that statute, the tribunal is empowered, among other things, to determine disputes between parties, even where there is no overriding public policy interest involved. However, this is not the case with appeals under the Conservation Authorities Act. In these appeals, the tribunal makes determinations between the rights of private individuals on one hand and the public interest in the watershed as a natural resource. The inquiry made by the tribunal is to consider whether the land involved could withstand the encroachment proposed. In balancing the private with the public interest, the conservation authority, or tribunal in an appeal, determined whether the proposal would sufficiently impact on the watershed either on the lands themselves, downstream or upstream, to warrant a refusal. The circumstances which resulted in a refusal are only specified within the legislation with respect to the placing of fill where "in the opinion of the authority the control of flooding or pollution or the conservation of land may be affected" as set out in clause 28(1)(f). Although clauses 28(1)(b) and (e) do not specify the circumstances under which an application will be refused, the power to make regulations "prohibiting, or regulating or requiring the permission of the authority" where the diversion of a watercourse or construction of a building have generally been exercised by all authorities through reiterating a similar test to that set out in clause 28(1)(f). Historically, cases usually involved flooding, where public safety was an issue, although issues of pollution were also featured. Determinations on the meaning of "conservation of land" were few.
The jurisdiction of the tribunal in hearing an appeal from the decision of a conservation authority can be determined through a reading of the statutes. Subsection 28(5) of the Conservation Authorities Act sets out the right to appeal as follows. "An applicant who has been refused permission may, ... appeal to the Minister who may dismiss the appeal or grant the permission." Based on the wording, dismissal of the appeal would have the effect of allowing the decision of the conservation authority to stand. Granting the permission would have the effect of doing what the conservation authority was empowered to do at first instance. The wording does not suggest that the Minister is empowered to determine whether an error of law or an error of fact has been made, which would be the case in an appeal to the courts. The fact that the outcome of an appeal to the Minister is identical to what may be the result before the conservation authority indicates that the Minister is not limited in his or her considerations to an error of law or an error of fact. Indeed, it would be difficult to conceive of a Minister exercising jurisdiction similar to that exercised in an appeal to the courts.
Interpretation of the statutes in Union Gas, Clay, C.T.C. Dealer Holdings Ltd., Nicholson, Re Cole's Sporting Goods Ltd. and Mulholland is done within the context of determining the appeal jurisdiction of the courts involved, where an appeal has been provided for to a court by statute. The tribunal finds that these cases have no applicability to an appeal to the Minister.
As to whether an appellate tribunal is limited to exercising jurisdiction under appeal similar to that exercised by the courts, it is worth noting that section 117 of the Residential Tenancies Act, R.S.O. 1980, c.452 provided for appeals of decisions of Commissioners to Appeal Commissioners. By subsection 117(6), the appeal panel was empowered to allow new evidence and by subsection 117(8), the appeal panel could affirm the decision of the Commissioner or could substitute its own opinion in making any decision which the Commissioner was able to make at first instance. Similarly, under the Residential Rent Regulation Act, 1986, S.O. 1986, c. 63, the Rent Review Hearings Board on appeals from decisions of the Minister may, pursuant to section 102, consider those issues which were considered at first instance or limit or expand the issues. Under section 111, the Board may affirm, vary or substitute its own order for that of the Minister.
For purposes of appeals under the Conservation Authorities Act, the procedures and substantive portions of Part VI of the Mining Act apply, insofar as they are not otherwise limited by specific wording of the sections. The tribunal finds that its jurisdiction in hearing appeals under the Conservation Authorities Act is that of a new hearing. This is based not only on the wording of subsection 28(5), but upon the specific sections of Part Vi of the Mining Act. Although sections 113 and 121, which were discussed in submissions, are indicative of a new hearing, when considered in its entirety, Part VI contemplates a new hearing. This is supported by section 119, which allows the tribunal to require and receive whatever additional evidence it considers proper or to have a view of the property involved, and by section 125, which requires that all hearings before the tribunal be recorded. Finally, the historical practice of the tribunal in hearing appeals from decisions of conservation authorities has been to consider all evidence adduced by the parties, notwithstanding that such evidence was not before the conservation authority. The suggestion put forward by Mr. Wigley that this practice was allowed to evolve, but did not reflect the substantive quality of the hearings is not accepted. The practice reflects more than mere tolerance on the part of the tribunal; it embodies the nature of the hearing itself.
Following from this, having heard all of the evidence which the parties put forward, the tribunal is empowered to make its own findings and substitute its own decision for that of the conservation authority. The nature of the hearing is not examination of the evidence and submissions before the conservation authority for the sole purpose of determining whether an error of fact or an error of law has been made in reaching its decision.
Conservation of land:
The test for determining whether fill may be placed or dumped in an area within the jurisdiction of a conservation authority, as outlined in clause 28(1)(f), is, in the opinion of the authority or the tribunal in an appeal, whether "the control of flooding or pollution or the conservation of land may be affected". Almost all cases since 1973, when a right of appeal was created, involves control of flooding. Few cases involved pollution and fewer still involved the conservation of land, Hinder being perhaps the most well known of the latter. Regarded in the context of the clause, "conservation of land" must mean something separate and apart from flooding and pollution.
Reference was made to the Rule in Heydon's Case. Considerable analysis of the applicability of this case the construction of statutes by object or purpose is made in Driedger, Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983). Commencing at the bottom of page 74:
One might ask whether Heydon's Case has any meaning or value now. Its language is the language of sixteenth-century common law judges; they looked upon statutes as a gloss upon the common law, even as an intrusion into their domain. Hence, statutes were viewed from the point of view of patching it up. Most modern statutes have nothing to do with the common law, and can hardly be said to be designed to cure "mischiefs". Nowadays, the principal "mischiefs" for which the common law does not provide are social, financial and economic problems rather than "defects" in the common law.
Then also, in the time of Heydon's Case, the judges paid more attention to the "spirit" of the law than to the letter. Having found the mischief they proceeded to make mischief with the works of the statute. They remodelled the statute, by taking things out and putting things in, in order to fit the "mischief" and "defect" as they found them. footnote 1 
Nevertheless, to this day, Heydon's Case, is frequently cited. The courts still look for the "mischief" and "remedy" footnote 2  , but now use what they find as aids to discover the meaning of what the legislature has said rather than to change it.
In Black-Clawson International Ltd. v. Papeirwerke Waldhof-Aschaffenburg A.G. footnote 3  , Lord Reid defined "mischief" as follows:
It has always been said to be important to consider the "mischief" which the Act was apparently intended to remedy. The word "mischief" is traditional. I would expand it in this way. In addition to reading the Act you look at the facts presumed to be known to Parliament when the Bill which became the Act in question was before it, and you consider whether there is disclosed some unsatisfactory state of affairs which parliament can properly be supposed to have intended to remedy by the Act. There is a presumption which can be stated in various ways. One is that in the absence of any clear indication to the contrary Parliament can be presumed not to have altered the common law farther than was necessary to remedy the "mischief". Of course it may and quite often does go farther. But the principle is that if the enactment is ambiguous, that meaning which relates the scope of the Act to the mischief should be taken rather than a different or wider meaning which the contemporary situation did not call for. The mischief which this Act was intended to remedy may have been common knowledge 40 years ago. I do not think it is today. But it so happens that a committee including many eminent and highly skilled members made a full investigation of the matter and reported some months before the Act was passed.
At the bottom of page 78, Driedger continues:
In Worthington v. Robbins footnote 4  the Ontario Supreme Court refused to cut down a literal construction that went beyond the mischief. The question was whether the word "person" in the Bulk Sales Act applied to farmers. Riddell J. said that "it is a matter of common knowledge that the mischief aimed at was the disposal of their stocks in bulk by traders, merchants, retail shop keepers, to the detriment of creditors" and agreed there would be much cogency in the argument that "person" did not include a farmer if he were to pay attention exclusively to the rules in Heydon's Case. But the words of the Act were plain and, quoting Warburton v. Loveland said "where the language of the Act is clear and explicit, we must give effect to it, whatever may be the consequences; for in that case the words of the statute speak the intention of the Legislature". A statute is not necessarily confined to the circumstances that gave rise to it. footnote 5 
Driedger continues at the bottom of page 81:
Heydon's Case is an expression of the doctrine of "equitable construction", which prevailed in the fifteenth and sixteenth centuries. In those days the intent of the statute was more to be regarded and pursued than the precise letter; footnote 6 
And commencing at the bottom of page 82:
What came to be called the literal rule was a revolt against judicial legislation, and under it, the words of the Act were dominant. Judges refused to go outside the statute; they considered the object or purpose of the Act only "if any doubt arises from the terms employed by the legislature" footnote 7  or if any doubt arises from the words themselves". footnote 8  Even in modern times judges have said that the object of the Act may be resorted to only where the language "presents a choice" footnote 9  or "only where the meaning is not plain". footnote 10  In other words, regard was had only to the words of the Act, and only if the "words in themselves" were not "precise and unambiguous" did judges consider the object. This is what they meant by literal construction.
It is clear that today, the words of the Act are always to be read in light of the object of the Act. Thus the two approaches, Heydon's Case and Sussex Peerage, have been combined into one. First, it was the spirit and not the letter, then the letter and not the spirit and now the spirit and the letter. "But we no longer construe Acts of Parliament according to their literal meaning. We construe them according to their object and intent," said Lord Denning in Engineering Industry Training Board v. Samuel Talbot (Engineers) Ltd. footnote 11  With this statement must be read the words of Lord Reid in A.- G. for Northern Ireland v. Gallagher footnote 12  where he said:
We can have in mind the circumstances when the Act was passed and the mischief which then existed so far as these are common knowledge, but we can only use these matters as an aid to the construction of the words which Parliament has used. We cannot encroach on its legislative function by reading in some limitation which we may think was probably intended but which cannot be inferred from the words of the Act. footnote 13 
Today's doctrine is therefore still a doctrine of "literal" construction, but literal in total context and not, as formerly, literal in partial context only.
Except where a mistake is corrected or a meaning is given to senseless words, or where, in some cases, the two versions of a statute, English and French, must be reconciled, there is no such thing as a literal meaning as distinguished from some other meaning.
Thus, if the question is whether a word should be given its full unrestricted meaning or a restricted meaning, and the context dictates a restricted meaning, then the restricted meaning is the literal meaning. footnote 14  If a sentence is ambiguous, then there are two literal meanings, and the one chosen according to proper methods of construction is the literal meaning the statute. If there is a conflict between two provisions and it is reconciled by giving a word a special meaning, footnote 15  by adopting a permissible grammatical structure other than the perhaps more normal one, footnote 16  by reading a special provision as an exception to a general provision, or by subtracting the subject-matter of one section out of another, then the meaning found is the literal meaning. footnote 17  Where a conflict between two statutes is resolved by the application of the principle leges posteriores priores contrarias abrogant [later laws abrogate prior contrary laws]or generalia specialibus non derogant [general things do not derogate from special], there is really not a modification of the grammatical and ordinary sense of the words of the statute; the grammatical and ordinary sense is the sense found after the conflict has been resolved. footnote 18  These processes are not departures from the literal meaning; they are the steps taken to find the literal meaning. footnote 19 
Section 20 of the Conservation Authorities Act sets out the objects of an authority, which among other things, includes conservation of natural resources. Clause 28(1)(f) makes reference to placing or dumping of fill which may affect the conservation of land. In Hinder, Commissioner Ferguson found, at page 435, that "land" used in clause 28(1)(f) must be given a narrower interpretation than "natural resources" in section 20.
Clause 1(e) of the Conservation Authorities Act contains an inclusive definition of land:
1. - In this Act,
(e) "land" includes buildings and any estate, term, easement, right or interest in, to, over or affecting land;
This definition is of limited usefulness, in that it is inclusive, not exhaustive. Also, as the word "land" is included in the definition, its meaning cannot be fully understood without looking elsewhere.
Black's Deluxe Law Dictionary (6th Edition, 1990; West Publishing Co., St. Paul, Minn.) defines "land" as:
In the most general sense, comprehends any ground, soil, or earth whatsoever; including fields, meadows, pastures, woods, moors, waters, marshes, and rocks. In its more limited sense, "land" denotes the quantity and character of the interest or estate which a person may own in land. "Land" may include any estate of interest in lands, either legal or equitable, as well as easements and incorporeal hereditaments. The land is one thing, and the estate in land is another thing, for an estate in land is a time in land or a land for a time.
Technically land signifies everything which may be holden; and the term is defined as comprehending all things of a permanent and substantial nature, and even of an unsubstantial, provided they were permanent.....
Land is the material of the earth, whatever may the ingredients of which it is composed, whether soil, rock, or other substance, and includes free or occupied space for an indefinite distance upwards as well as downwards, subject to limitations upon the use of airspace imposed, and rights in the use of airspace granted, by law.
In Webster's New International Dictionary (2nd Edition, Unabridged 1959; G. & C. Merriam Co., Springfield, Mass.) sets out the definition of "land":
11. Law. a. Any ground, soil or earth whatsoever, regarded as the subject of ownership, as meadows, pastures, woods, etc. and everything annexed to it, whether by nature, as trees, water, etc. or by man, as building, fences, etc. extending indefinitely vertically upwards and downwards. b. An interest or estate in land; loosely, any tenement or hereditament.
Black's defines "natural resources" as:
Any material in its native state which when extracted has economic value. Timberland, oil and gas wells, ore deposits, and other products of nature that have economic value. The cost of natural resources is subject to depletion. Often called "wasting assets."
The term includes not only timber, gas, oil, coal, mineral, lakes, and submerged lands, but also features which supply a human need and contribute to the health, welfare, and benefit of a community, and are essential to the well-being thereof and proper enjoyment of property devoted to park and recreational purposes.
These definitions entail common as well as distinctive features. If envisaged as two circles with an area of overlap, the common features would be the physical elements inherent in each. Distinctive in the definition of "land" are the legal aspects of ownership. Distinctive in the definition of "natural resources" are those aspects which are associated with values, for example those inherent in land devoted to proper enjoyment, such as parks and recreational areas. The less tangible aspects of the definition of "natural resources", contributing to the health, welfare and benefit of the community require additional differentiation. Pollution and flooding are concerns which directly relate to both land and natural resources. "Conservation of land" extends, at the one extreme, to the preservation of the physical attributes, such as soil stability and erosion and at the other extreme to recognition of the integrated functions occurring within the various elements of the land. The definition of "land", however, does not encompass the value judgement of whether privately owned land should better be used as open green space or recreational land in preference to some other use.
The term "ecosystem" comes to mind when looking at either definition. It is a recent word which does not appear to have been in common usage at the time the legislation was drafted. Indeed, the 1959 edition of Webster's Dictionary discloses no such word. The tribunal finds that "conservation of land", in the context of clause 28(1)(f), includes all aspects of the physical environment, be it terrestrial, aquatic, biological, botanic or air and the relationship between them. Therefore, notwithstanding the fact that the term was not used, "ecosystem", not having yet been coined, "ecosystem" is found to be included in the definition of "land" as used in "conservation of land".
As to the object or purpose of the Act, while it may be possible that the original intention of the clause was to deal with the severe flooding situation concerns caused by the aftermath of Hurricane Hazel, the drafting of the clause goes beyond that concern. The tribunal finds that in the case of the interpretation of "conservation of land" the plain meaning of the words are not ambiguous, notwithstanding that they may extend beyond the recorded concerns of the legislators of the day. While the parties were most helpful in providing earlier copies of the legislation, back to its inception, and related discussions within the legislature, the tribunal is satisfied, as was suggested by Mr. Wigley, that the plain meaning of the words supports the evolution of the practices and policies of the MTRCA in dealing with its jurisdiction in connection to "conservation of land".
Moving to the specific lands in question, and whether permission to place fill should not be granted, on the basis that, in the opinion of the tribunal, the conservation of land may be affected, it is necessary to characterize the lands. Throughout the hearing, the subject lands have been characterized as valley lands, a natural feature, a first order stream and intermittent stream.
At page 1 of the Draft Valley and Stream Corridor Management Program (Ex. 13), the second paragraph under the introduction states:
. . . . .
The valley and stream corridors within the Greater Toronto Region are significant natural features. They are the natural water collection systems for the Etobicoke, Mimico, Humber, Don, Highland, Rouge, Duffin and Carruthers watersheds.... The corridors also convey and provide short term storage for storm and melt waters.
These corridors preform other ecological functions which include nutrient and sediment transport; provision of fish and wildlife habitat and migration routes; air quality improvement; noise level attenuation; moderation of microclimates; and a maintenance of genetic pool for native flora and fauna.... They contain and link many of the provincially, regionally and locally designated significant natural areas. Valley and Stream Corridors are valued landscape units providing diversity and contributing to environmental quality.
. . . . .
(continued at the top of page 4)
Public concern for valley and stream corridors has recently been renewed. While the need for risk management related to flooding and erosion continues, it is assumed by the public that this is being taken care of. Current public interest is to ensure future environmental degradation is prevented and damaged areas rehabilitated/regenerated. To accomplish this, future decisions on land use activities should address valley and stream corridor concerns through a planning process which considers natural resource conservation, protection and management values.
Management decisions which affect valley and stream corridors are a responsibility shared by many jurisdictions, each with specific resource management or land use planning concerns.... In addition, while this program focuses on valley and stream corridor management, it is recognized that the cumulative effects of decisions made elsewhere within each watershed also have impact which will affect these corridors.
The development of the Valley and Stream Corridor Management Program has been guided by a new vision and understanding of the ecology of these areas and the need to recognize the relationship between the watercourses and the terrestrial components of these corridors.
The VISION begins with the retention of watercourses and their valley and stream corridors as open, natural landforms, from the headwaters to the river mouth marshes and includes:
- continuous greenspace corridors which serve as regional linkages to local greenspace resources and larger habitat areas;
- corridors which provide refuge for vegetation, wildlife and humans;
- a renewed partnership with provincial and local municipalities and the active involvement and support of the community in the protection and regeneration of valley and stream corridors;
- the prevention, elimination, or minimization of the threat to life and property caused by flooding, erosion and slope instability;
- a commitment to ecological regeneration within communities historically located in valley and stream corridors;
- the establishment of an extensive interregional trail system linked through the valley and stream corridors;
- the gradual transfer to public ownership of scattered development within the valley and stream corridors to reduce the risk to life and property;
- a commitment to Watershed, Subwatershed and Community Reach planning involving provincial, municipal, Conservation Authority, private sector and community partners, designed to anticipate and prevent negative impacts within the corridors as well as to identify specific regeneration needs; and
- a commitment to monitor and evaluate, and where necessary, amend the management techniques used to maintain, restore and enhance these important regional resources.
Paragraph 2.5 at page 10 is reproduced:
2.5 Greenspace strategy
In updating the Watershed Plan in 1986, it was recognized that, while the existing programs were contributing to watershed conservation, the Authority needed to go beyond its traditional programs and assume a greater environmental advocacy role. This was necessary to ensure the protection and conservation of the natural resource base given the tremendous pressure for development across the Greater Toronto Region. In 1989, the Greenspace Strategy for the Greater Toronto Region was adopted by the Authority.
The Greenspace Strategy identified the need to improve the co-ordination of natural resource management within the Greater Toronto Region. The conservation of valley and stream corridors was central to this effort. The Greenspace Strategy advocated the establishment of a planning task force for each major river watershed; the provision of environmental services to municipalities for the river valleys; improved compliance for monitoring for permits issued pursuant to Authority Regulations; the acceleration of acquisition of valley lands; and a vision for an inter-regional public trail system linking the greenspace resources of the Greater Toronto Region. To implement the Greenspace Strategy, it was anticipated that detailed programs and projects would be prepared.
At page 12:
3.0 Defining the valley and stream corridor boundaries
3.1 Valley and stream corridors
. . . . .
The basis of the valley and stream corridor components of the watershed ecosystem is the natural valley landform and the function stream corridor.
Valley corridors are distinguished from stream corridors by the presence of a distinct valley landform.
The reading of the Draft document, and in particular the passages reproduced above, gives a clearer understanding of the dichotomy between what is a valley corridor and what is a stream corridor. It becomes apparent that the MTRCA has attempted to capture the lands surrounding streams which are located in areas which are relatively flat. Similarly, valley corridors described are associated with a watercourse.
I am not satisfied that the very general descriptions of valley and stream corridors, designed to encompass watersheds from the headwaters to the mouth of the system, either captures or precludes the situation in the appeal before me.
The subject lands have been delineated as forming part of the lands over which the MTRCA has jurisdiction, being within the fill lines of the Humber River watershed. The opinion of Dr. Brown that these lands were mistakenly included has not persuaded the tribunal otherwise.
From the evidence presented at the hearing and filed in opposition to the appeal, it becomes quite clear that the general vicinity is part of the headwaters of the Humber River. Headwaters have characteristics which are unique and not generally comparable to higher order streams. The single most distinguishing feature of headwater first order streams is that, within the entire watercourse, it is these streams which necessarily will have the least amount of flow attributable to them individually. In fact, these streams may appear dry for periods during the calendar year.
Another characteristic of headwaters streams, and perhaps the one which has caused the extent of confusion and dissention in this appeal, is that headwater stream land formations are not necessarily as distinct as the generally recognized meaning of the word, "valley". In relatively flat reaches of open land, the first order stream valley may appear to be a gentle undulation or swale, and not a valley with steep side slopes which can be readily distinguished from the surrounding landscape. The absence of dramatic contours is not definitive of whether a landform, or the landform encompassed by the subject lands, is or is not a first order stream and valley corridor.
Given that headwater streams and their associated valley forms may not have permanent flowing water and may not have dramatic slopes, the tribunal must determine what will distinguish a first order stream on relatively flat land from a gentle undulation within the landscape. The most important characteristic will be whether the lowest elevation of the landform coincides with another larger watercourse, in effect representing the confluence between a first order stream and a higher order stream. The tribunal notes that, in the case of the subject lands, at the bottom of the landform, just outside of the area under appeal, is the main channel of the West Rainbow Creek.
Another characteristic of the first order stream will be the function of the landform. The absence of a defined channel cannot be seen as definitive. On the facts of this appeal, there was in the past a distinct channel (see photographs Ex. 14A and B), which was either ploughed under or captured further upstream some time after 1977. To make a distinct channel a prerequisite to a finding of the presence of a first order stream would lay open many intermittent streams located within farm and pasture land under development pressure to ploughing under to avoid this test. The function of drainage, recharge and discharge will be evident from seepage at the toe of the slope of the landform, which the tribunal finds on the evidence, exists on the subject lands.
Also determinative of a first order stream will be the vegetative cover which is found, particularly at the bottom of the slope. The presence of sedges and other wetland vegetation is indicative of the closeness of the water table to the surface. Whether there is sheet flow, due to the absence of or elimination by man of a discreet channel, the water flowing through the drainage area of a first order stream will still be found to have an impact on the vegetation which finds wetter environments hospitable. The tribunal finds that the vegetation growing at the bottom of the subject lands is indicative of that found growing within wetter environments.
Much evidence and argument was heard concerning the significance of the landform feature and the vegetation found. The concept of significance can be misleading insofar as those portions of an ecosystem which may not be unique in that they occur in a multitude of locations, may perform an integral, necessary and valuable function within the system overall. The tribunal is not persuaded that significance, taken to mean rare or unique, should be determinative.
Taken to its extreme, preservation of only those features which can be characterized as significant could result in the fragmentation of complex portions of the ecosystem, eliminating the linkages necessary to the watershed as a whole. While clearly the appellant has in no way advocated such extreme fragmentation by inviting the tribunal to recognize that its proposal would in no way harm the main channel of the West Rainbow Creek, the tribunal finds that it cannot agree with this approach.
The evidence has shown that first order streams, or headwater reaches of the watershed, play an integral role in the health of the downstream watercourse. This role cannot be measured by the number of disparate or endangered species, the volume of flowing water found throughout the year. It is the often minuscule evidence of water seepage, of intermittent flow or any growth found in wet areas which will indicate the presence of a first order stream. That the very presence of these attributes exists points to a different meaning of significance for headwater areas of a watershed.
The tribunal is much persuaded by the evidence of Dr. Eagles and Dr. Newbury concerning the importance of the functions performed by first order streams to the overall health of the watershed, particularly water quality downstream. Currently, the water draining from and over the subject lands is undetectable for portions of the year. However, the water entering the main channel of the creek is unquestionably cold water if left in its natural condition. The proposed piping would serve to increase water temperatures flowing from the drainage area, due to the increased speed with which drainage would occur. Similarly, piped water does not have the same sedimentation retarding capacity as does land left in its natural state, and while Dr. Brown and Mr. Brodie suggested that the mitigation of an engineered solution would be sufficient to minimize impacts, they were unable to agree that there would be no impact. While the proposed measures to provide a retention and discharge function and control sedimentation are recognized as being somewhat effective, the impacts of engineered intrusions on a watercourse are not 100 percent effective.
Headwater first order streams play a unique role. Of all areas within the watershed, intermittent streams which drain a relatively small area, are the least differentiated and evolved. While not a living organism, the tribunal derives assistance from the meaning of the word "embryo", which is defined in Funk & Wagnalls Canadian College Dictionary (1986; Fitzhenry & Whiteside Limited, Markham Ontario) as:
a. The earliest stages in the development of an organism, before it has assumed its distinctive form. 3. The rudimentary form or stage of anything. In an undeveloped or incipient stage or state; not yet developed or advanced.
Although it is recognized that a first order stream is not a living organism, the adjective "embryonic" best describes its relationship to the watershed. Therefore, the tribunal finds that intermittent or first order streams located in headwaters are best characterized as embryonic streams. While not having the distinctive and year round permanence of features associated with third, fourth and fifth order streams, the functions performed by first order streams will have an effect on downstream characteristics, by impacting on water temperature, removing sedimentation and providing nutrients while filtering out chemicals. Development of any one first order stream, even through the use of engineered solutions, will have some impact on the water temperature on the main channel, which was admitted by witnesses for the applicant, as well as the amount and quality of nutrients available to the biotic community. Dr. Brown did not admit this latter impact, but the tribunal finds that the piping, retention and detention pond would not be capable of both removing the sedimentation to the same degree as the land in its natural state and more particularly, does not provide sufficient opportunity for the decomposition of plant life and micro-organisms to take place and enter the main channel of the West Rainbow Creek. This impact is significant in that, being a first order stream within the headwaters, the role it plays within the watercourse is precariously fragile. The elimination of the nutrient discharge and uptake function, as well as increased sedimentation, will play a large role in changing the character of the main channel, the extent to which is unknown. However, if the type of proposed filling were allowed, and were generalized to many or a majority of first order streams, the quality of the water and the biological community found within the main channel will be degraded. There is no known means by which an alternative process can be added within the main channel to replace the functions described above or remediate their impact.
No model was presented at the hearing to indicate a threshold for intrusion into the watershed beyond which development should not be allowed. In the absence of such a model, the tribunal finds that it is appropriate to apply a precautionary principle to development involving first order and intermittent streams within the headwaters of a watercourse, so that, in the absence of calculation of a threshold or demonstration of no net impact, development within such land should not proceed. This precautionary principle is applied in recognition of the integral role of water in environmental and human health.
For purposes of clarity, it must be stated that the jurisdiction of any conservation authority arises by virtue of a legislative mandate which is directly concerned with specific watersheds. Dr. Brown questioned the jurisdiction of the MTRCA over the subject lands suggesting that, if taken to the extreme, would support it exercising jurisdiction over any swale or undulation in the landscape. The tribunal is satisfied that the subject lands are properly within the jurisdiction of the MTRCA, and these findings should in no way be construed as giving any conservation authority a mandate to regulate green space. These findings are limited to lands which are scheduled pursuant to regulations made under the Conservation Authorities Act and are only applicable in connection with proposed development within a watershed.
More than anywhere else in the watershed, headwaters must be regarded as fragile. Due to their relatively undifferentiated characteristics, the role that they play within the ecosystem of the watershed is prone to be understated and minimized. However, being the earliest opportunity for intrusion which causes minuscule changes in the characteristics of the watershed, the impacts are found to be far reaching.
As discussed above, permitted intrusions into any drainage area will impact on water temperatures and nutrient loading, notwithstanding engineered solutions. The tribunal finds that the proposal does not alleviate concerns regarding sedimentation. Cumulatively, even within a short distance, temperature, availability of nutrients and sedimentation will demonstrably change the micro-environment of the stream to affect the natural biological communities. Changes to the stream characteristics within the headland reaches will be compounded throughout the watershed, as each level in the foodchain and biological communities is exposed to altered circumstances.
The impact of potential flooding was only touched on in the hearing. However, the fact that flooding concerns are minimal in headland areas, and more particularly on the subject lands, is not sufficient to alleviate concerns for the system with respect to flooding. The respondent submitted that sedimentation has the potential to alter the terrain sufficiently downstream to expose areas to flooding which currently are not considered in risk assessment calculations. The tribunal finds that these concerns are warranted. The appellant's evidence concerning sedimentation was not persuasive and the tribunal finds that the long term effects of the sediment entering the main channel of the West Rainbow Creek is of sufficient concern that is has not been irrevocably proved that the downstream will not be significantly altered, thereby exposing lands not currently floodprone to flooding.
Such alteration is evident from the alterations to the main channel immediately downstream which occurred over time. In the 1946 aerial photograph (Ex. 14A), the meanders of the main channel are evident, with five complete zigzags. The 1977 aerial photograph (Ex. 14B) shows alteration to these meanders. While vegetation appears to follow the streambed as it once was, there appears to be a road constructed over the channel, which suggests that the stream was altered through a culvert. The 1989 aerial photograph (Ex. 14C) shows that the meanders have been virtually eliminated, with one half of one zigzag remaining.
Although this evidence is indicative of the impact of installing a culvert, the build up of sediment in one area of a stream bed in a relatively flat area can have similar effect. Naturally occurring meanders serve to slow the flow of flood waters and increase the area over which flood waters can be stored in a regional storm. Potential elimination of this storage capacity will see flood waters arriving at the lower reaches of the watershed more quickly and increase the amount of water which must be stored at those locations.
The tribunal finds that there is sufficient evidence that the proposed development will cause impacts elsewhere in the watershed which have not been provided for. Cumulatively, a few similar proposals to fill are found to have sufficient impact on the watershed, in respect of flooding, alterations to the channel and the quality of the water such that the proposed filling should be refused.
Official Plan and by-laws:
The use of Official Plans, Official Plan Amendments and by-laws is of no assistance in determining the jurisdiction of a conservation authority or, under appeal, the tribunal. In fact, it must be recognized that, notwithstanding a designation on an Official Plan which would be favourable to development, a proposal must still obtain the permission of the conservation authority for lands within its jurisdiction.
The objectives of the Conservation Authorities Act are quite distinct in relation to subsection 28(1) applications. The tribunal touched on the differences between planning bodies and conservation authorities in its recent decision, Bye v. Otonabee Region Conservation AuthorityCC.1357, November 19, 1993, (unreported). Although the issue was whether a conservation authority is considered a planning body for purposes of the Planning Act, comments are relevant, touching on the differences in mandate. At page 53:
Nowhere in the Conservation Authorities Act are conservation authorities given authority to balance competing interests in reaching their= determinations. However, in the Principles of the Floodplain Planning Policy ..., at paragraph two of page six, those bodies which must have regard to the policy are required to consider local conditions in connection with applying the policy. This includes physical, environmental, economic and social conditions. While a planning body may weigh competing uses in order to arrive at the highest and best use of a tract of land, conservation authorities do not consider, nor do they have power to consider, the relative merits of competing uses. Their mandate is to determine the impact of a proposal on the very limited capacity of land within their jurisdiction and based upon the degree of severity to allow or refuse permission. There is no power in conservation authorities to weigh or consider the relative merits of economic and social implications with those of susceptibility to flooding, risk to loss of property or life, pollution of the surface waters or soils, and general ecosystem concerns within the watershed. The conservation authorities are specifically charged with determining the merits of a proposed encroachment based on risk not only to the applicant, but to affected persons both upstream and downstream of the proposal. In other words, in considering the right of a property owner to use his or her land, a conservation authority will weigh the individuals' rights against the public interest, in so far as it concerns flooding, pollution or conservation of land. Once the capacity of a watershed to cope with encroachment, pollution or the associated ecosystem health is depleted, there is nothing more for the authorities to consider.
The introduction of municipal planning documents into conservation authority hearings and appeals are of no significance in the issues to be determined. The suggestion that the designation, once made by a municipality, is not subject to further determination by a conservation authority based upon its jurisdiction, is contrary to the intent of the legislation and is found to be repugnant by the tribunal.
Due to the finding made above in connection with the proposed filling, it is not necessary to make finding with respect to the conditions submitted by the appellant.
The appeal of 611428 Ontario Limited is dismissed due to the impact of the proposed placing of fill on the conservation of land.