The Mining and Lands Commissioner
In the matter of the Conservation Authorities Act
G.H. Ferguson, Q.C.
Mining and Lands Commissioner
Thursday, the 17th day of April, 1986.
And in the matter of
An appeal against the refusal to place fill on Part of Lot 23 in Concession III in the Town of Halton Hills (formerly the Township of Esquesing) in the Regional Municipality of Halton.
Ridley Cartage Limited
The Halton Region Conservation Authority
G.R. Chapman, for the appellant.
R.I.R. Winter, Q.C., for the respondent.
The appellant appealed to the Minister of Natural Resources from the refusal of the respondent to issue permission to place fill on part of Lot 23 in Concession III in the Town of Halton Hills, formerly the Township of Esquesing, in the Regional Municipality of Halton. Under Ontario Regulation 364/82 the power and duty of hearing and determining such appeals were assigned to the Mining and Lands Commissioner. The appeal was heard in Toronto on the 6th day of February, 1986.
In 1956 John Lee Ridley, who presumably controls the applicant, moved the location of an existing cartage business from Acton, Ontario to a site measuring approximately 170 feet by 234.53 feet on the northerly side of Highway 25, the site being part of Lot 23 in Concession III in the Township of Esquesing as it then was. A house and a garage were constructed on the parcel. Some fill in addition to the fill removed for the basement of the house was used to level parts of the parcel. In 1965 the business had expanded, necessitating the acquisition of 200 feet lying to the west and fill was placed thereon.
The depth of natural soils on the area was approximately two feet above the bedrock. The fill created a bank varying from two metres at the northwesterly corner of the appellant's land to in excess of one metre at the northwesterly corner. Immediately beyond this embankment for a period of approximately 100 feet there is a low wet area sustaining growth of cattails, sedge grasses and other marsh-like vegetation. Beyond the 100 foot area, there is a growth of red and silver maples and birch trees. In the past this area supported a growth of elm trees until they died from the dutch elm disease. The appellant caused the dead elms to be cut with the permission of the owner.
The commercial activity of the appellant has expanded to the extent that some forty-four to forty-eight employees are employed at the site. In addition to the trucks of the appellant, some twenty-two hired trucks use the premises. In addition to trucking, the appellant carries on a brick and block sales business and requires storage for these products. In order to expand the site and prevent minor accidents that are occurring on the property by reason of the congested condition of the site, the appellant entered into an agreement with the owner to the north for the purchase of a parcel extending approximately 200 feet northerly from the existing location. This site would contain 0.6801 hectares or 1.681 acres. The proposal is to place 4,183 cubic metres of fill over the southerly 100 feet of the area to be acquired. The appellant indicated that he was prepared to erect a barrier which would prevent the further encroachment in a northerly area of the filled site, such having occurred with the present location and some of the fill having moved northerly onto the land of the owner to the north.
Upon an application to the Land Division Committee, the severance was approved subject to eight conditions, the seventh of which read,
- That Ridley Cartage receive approval from the Halton Region Conservation Authority to place fill on the lands subject to this Application;
The site appears to be subject to the jurisdiction of the Niagara Escarpment Commission but counsel for both sides assured the tribunal that the jurisdiction of that commission is not relevant to this application. The local municipality appears to approve the proposal. It recognizes that the proposal is contrary to its official plan and it appears that the municipality is requesting an amendment which would, in its opinion, permit the proposal. In reading the material in this regard, namely, Exhibit 7, the proposed amendment authorized minor extensions. The thought that occurs to the tribunal is that the proposed severance is equal in size to the existing operation and there may be some issue as to whether such an enlargement is "minor". It has been the policy of this tribunal to not consider such matters in dealing with appeals under the Conservation Authorities Act.
The application to the respondent for permission under the Conservation Authorities Act and the regulation of the respondent made thereunder, which is now Regulation 164 of Revised Regulations of Ontario, 1980, was refused on four grounds, namely, that it was the practice of the respondent to prevent where possible the filling in of headwater swamps, the ability of swampland areas to retain run off and augment low flows necessary for downstream users, the role of the augmented flows in pollution control in downstream areas and the policy of the respondent to deny permission to place fill in flood plains and swampland unless compensating flood storage and low flow augmentation is provided. In passing, it may be noted that the fourth reason appears to integrate matters of placing of fill in flood plains which is basically a matter of flood control with matters of swampland management which is a matter of conservation of land.
The evidence clearly indicates that the site in issue is a swamp that forms part of the headwaters of Sixteen Mile Creek. The swamp is known as the Acton Swamp and the evidence indicates that the vegetation and soils in the swamp are typical of headwater areas which feed streams and retain flows so that there is a more uniform flow throughout the year and by the swampy nature of the soil and the vegetation augment flows in low periods which is essential to the provision of regular flows and the use of streams for pollution removal devices.
Before leaving this aspect of the evidence, there was evidence respecting the operation of a quarry adjacent to or in part of the swamp approximately one-half mile from the subject site under a quarry permit in which excavations to a depth of ninety feet may be contemplated. While the existence of such an operation may reflect the ancient dichotomy of a speck and a beam in an eye, it can only be observed that counsel for the respondent adopted the position that it has no jurisdiction over that type of an operation. With such a serious intrusion into the Acton Swamp it becomes more essential for the respondent to establish a strict policy with regards to the remaining portions of the swamp that fall or might fall under its jurisdiction.
With reference to the policy of the respondent the evidence indicates that it was the policy of the respondent to refuse similar applications and that similar applications had been made in the past. The appellant brought no evidence of the granting of permission inconsistent with this evidence.
In the opinion of this tribunal, there is a serious legal issue in respect of the position of the respondent in this matter. Normally conservation authorities control the placing of fill through a regulation prohibiting the placing of fill in areas that are defined in a schedule to their regulation. The usual practice is to enlarge the flood plain areas beyond the elevation of the regional storm and to include the headwater areas where the placing of fill should be controlled. In this situation the respondent has made the substantive provision but has not included the flood plains or the headwaters of the creeks that form the flood plains in the schedules to its regulation. Some areas have been scheduled but the area in question has not been made the subject of the legislative powers of the respondent. Notwithstanding the usual practice, the position of the respondent was that the present case fell within its jurisdiction by reason of clause 3(c) of Regulation 164 which reads,
- Subject to section 4, no person shall, ......
- straighten, change, divert or interfere in any way with the existing channel of a river, creek, stream or watercourse.
In this regard there is no evidence of any indication of a stream flowing through the site in question. There was evidence that in the spring the water table was high and there was some evidence of ponding but none of the witnesses could point to any area that showed a visible flow of water. Technical evidence was produced on behalf of the respondent to the effect that there is a sheet of water underlying the surface in a headwater area which moves as a sheet and hence, could be regarded as a watercourse and hence, the present application should fall within its jurisdiction. Evidence was also produced on behalf of the respondent that although the area had not been subject to flood plain mapping, the area was within the flood plain of a regional storm. With reference to the latter concept, the legislative jurisdiction of conservation authorities as it is found in clause 28(1)(e) relates to the construction of buildings or structures and the present application is concerned with the placing of fill which falls under clause (f). Clauses (e) and (f) read,
- --(1) Subject to the approval of the Lieutenant Governor in Council, an authority may make regulations applicable in the area under its jurisdiction,
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
- prohibiting or regulating or requiring the permission of the authority for the construction of any building or structure in or on a pond or swamp or in any area susceptible to flooding during a regional storm, and defining regional storms for the purposes of such regulations; and
- prohibiting or regulating or requiring the permission of the authority for the placing or dumping of fill of any kind in any defined part of the area over which the authority has jurisdiction in which in the opinion of the authority the control of flooding or pollution or the conservation of land may be affected by the placing or dumping of fill.
The clause relied upon as a statutory authority for the making of the regulation under consideration is clause (b) and it reads,
- prohibiting or regulating or requiring the permission of the authority for the straightening, changing, diverting or interfering in any way with the existing channel of a river, creek, stream or watercourse;
Looking at clause (b) and the extent of the legislative jurisdiction exercisable by conservation authorities it will be noted that the subject matter of the control is narrower than it might otherwise be. The words "existing channel of" limit the extent of legislative jurisdiction. The phrase is meaningful in itself if it read,
..... interfering in any way with a river, creek, stream or watercourse.
It may well be if those limiting factors were not included in the statute that the argument advanced on behalf of the respondent is sound. However, the legislative jurisdiction is restricted to "existing channel".
Reference will be made to a number of dictionary meanings of the word "channel". In the Gage Canadian Dictionary, 1984, the first three meanings deal with rivers and streams and read as follows,
- the bed of a stream, river, etc.
- a body of water joining two larger bodies of water; the English Channel.
- the deeper part of a waterway:
There is shallow water on both sides of the channel in this river.
In Webster's New International Dictionary, 2nd Edition, the following meaning appears,
- The hollow bed where a natural body or stream of water runs or may run.
- The deeper part of a river, harbor, strait, etc., where the main current flows, or which affords the best passage.
- (a) A small stream; rivulet. (b) A canal for vessels.
In the case of Galat v. The Halton Region Conservation Authority, dated April 5, 1977, the following meaning from the booklet entitled "A Nomenclature for Hydraulics" was mentioned, which definition reads,
A natural or artificial waterway of perceptible extent which periodically or continuously contains moving water or which forms a connecting link between the two bodies of water. It has a definite bed and banks which serve to confine the water.
As noted in that decision there was a conflict of expert evidence as to whether this meaning was accepted by professional hydrologists.
In a dictionary entitled "A Dictionary of Mining, Mineral, and Related Terms" which is oriented primarily to the mining industry a definition from Webster is quoted as item n. and reads,
n. The deeper part of a moving body of water (as a river, harbor, or strait) where the main current flows or which affords the best passage. Webster 3d.
In Black's Law Dictionary, Third Edition, there is a fairly extensive definition which reads,
Channel. The bed in which the main stream of a river flows, rather than the deep water of the stream as followed in navigation. Bridge Co. v. Dubuque County, 55 Iowa, 558, 8 N.W. 443. See The Oliver (D.C.) 22 F. 849; Iowa v. Illinois , 147 U.S. 1, 13 S. Ct. 239, 37 L. Ed. 55; Cessi11 v. State, 40 Ark. 504.
But the term is sometimes used to designate the customary and traveled fairway. The Arlington (C.C.A.) 19 F.(2d) 285, 286, 54 A.L.R. 101.
It may also be used as a generic term applicable to any water course, whether a river, creek, slough, or canal. McKissick Cattle Co. v. Alsaga, 182 P. 793, 797, 41 Cal. App. 380.
The "channel" of a river is to be distinguished from a "branch." U.S. v. Hutchings (D.C.) 252 F. 841, 844.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
That bed of the river over which the principal volume of water flows. Many great rivers discharge themselves into the sea through more than one channel. They all, however, have a main channel. Packet Co. v. Bridge C. (C.C.A.) 31 F. 757. Compare State of Oklahoma v. State of Texas, 258 U.S. 574, 42 S. Ct. 406, 414, 66 L. Ed. 771.
The main channel of a navigable stream, called for as a boundary between states, mean the "thalweg," or deepest and most navigable channel as it then existed. Whiteside v. Norton (C.C.A.) 205 F. 5, 9.
The channel of a stream as determined by the natural conformation of the country through which it flows; that is, the bed over which the waters of the stream flow when not in any manner diverted or interfered with by man. See Larrabee v. Cloverdale, 131 Cal. 96, 63 P. 143.
The floor or bed on which the water flows, and the banks on each side thereof as carved out by natural causes. Pima Farms Co. v. Proctor, 30 Ariz. 96, 245 P. 369, 372.
In the Canadian Law Dictionary, the following definition appears,
channel: The bed of a stream or river over which waters run, a passageway between banks through which flow waters of the stream or river.
In questions of geography or boundaries, however, it is more generally used to designate the depression of a bed below permanent banks, forming a conduit along which waters flow, and which may be at some times full, and at others nearly if not quite dry. See: Bartlett v. Delaney, (1913) 17 D.L.R. 500, 29 C.L.R. 26 (C.A.).
In the Bartlett case, Hodgins, J.A., was dealing with the interpretation of the grant from the Crown that made reference to "the westerly side of the channel of the Detroit River known as the 'British Channel'" and "the easterly side of the channel of the said river known as the American Channel"'. The Crown grant in question granted an island in the Detroit River known as Fighting Island and the issue revolved around the extent of the grant into the marshes adjacent to the firm land. At p. 433, Hodgins, J.A., stated,
The words "side of the channel" are construed in the judgment as synonymous with "channel-bank," and the word "channel" as meaning the navigable channel. This last is based upon definitions in the Imperial and Century Dictionaries, Littre, a French authority, the opinion of Mr. Rolliter, a Michigan engineer, and the wording of the grant mentioned in Barthel v. Scotten (1895), 24 S.C.R. 367, 368. No doubt "channel" may and often does mean "navigable channel;" but that is not its primary meaning. In both the dictionaries quoted, what is equivalent to "navigable channel" is given as the secondary meaning; while, opposed to Littre and Mr. Rolliter, there are many authorities of great weight which point out when and under what circumstances the secondary meaning may and may not be applied.
His Lordship went on to consider a number of American authorities concluding on p. 435 with the following quotation from the Cessill case,
In 1883, the Supreme Court of Arkansas, in Cessill v. The State, 40 Ark. 501, says (p. 504): "The channel of a river, bay or sound, is, in boatman's parlance, the course over its bed along which the water is deepest, and the navigation safest. This may be irrespective of the current, or distance from the shore. In questions of geography or boundaries, however, it is more generally used to designate the depression of a bed below permanent banks, forming a conduit along which waters flow, and which may be at some times full, and at others nearly if not quite dry. In this sense it is of common use in law. It is the more obvious signification in connection with boundaries, inasmuch as it presents something of a permanent nature, or at least at all times visible; and when changed leaving traces of the old landmarks ..... Whereas channels, in the sense of the river pilot, are ever shifting, invisible--discoverable only by patient soundings, and then imperfectly."
His Lordship interpreted the patent with reference to the plan accompanying it and at p. 436 concludes that such an approach gave the grantee the firm land and marshland shown on the plan. At that page His Lordship said,
..... That supplies both a visible outline (see Rolliter, pp. 30-34, and Lambe, who circumnavigated the marsh land in a boat, pp. 44, 45, 50) and visible and proper beginning and ending points, and treats the word "channel," in its ordinary significance, as meaning "stretching from margin to margin;" and the expressions "side of the channel" and "following the windings there" as indicating a course bounded partly by firm land and partly by marshy land as shown on the plan. In the view I take, it would not militate against this view even if the line between the marsh and the channel were in the water at places.
While His Lordship gave the term "channel" a broad interpretation of from "margin to margin" as contrasted with the narrow concept of the area suitable for navigation, it may be observed that there is nothing in any of the cases or in any of the dictionary meanings that suggest that the phrase is applicable to a swamp in which there is no visible watercourse. Further the noun is modified by the adjective "existing" and this requires a restrictive interpretation as contrasted with a broadening interpretation of the term.
A further legal approach to the question of interpretation of the phrase is the legal maxim expressio unius, exclusio alterius. This principle would prevent an interpretation of creating an additional area of legislative jurisdiction over fill where an express provision is included in the Act. Accordingly, this tribunal is of the view that the application in question does not fall within the ambit of the regulation enacted by the respondent.
A further matter of consideration is whether this tribunal would have jurisdiction as a result of the condition imposed by the Land Division Committee. This tribunal is of the opinion that, assuming the respondent has jurisdiction as a delegate of the Committee, this tribunal, as the assignee of the Minister of Natural Resources, would have no appellate jurisdiction under the Conservation Authorities Act.
Assuming that the respondent had jurisdiction and had caused a schedule to be made to its regulation including the area in question, this tribunal is of the opinion that it would have dismissed the appeal. The responsibility under the Act and the regulation for making the decision as to whether permission should be granted lies with the respondent and there was no evidence to indicate that the respondent in this case had applied a policy to this application that was in conflict with the policy applied in other applications of a similar nature. In fact, the only evidence in this regard was the evidence of the officer of the respondent which was uncontradicted and the existence of the quarry in respect of which the respondent had no jurisdiction. There was no evidence of any overriding provincial or federal concern and having regard to the apparent importance of the Sixteen Mile Creek and the flow of its waters, which is found by the tribunal from an examination of the exhibits filed as well as the evidence of the witnesses, and the existing encroachments on the headwater areas of the Acton Swamp the tribunal would dismiss the appeal.
- This tribunal orders that the appeal in this matter is dismissed.
- This tribunal orders that no costs shall be payable by either of the parties to the appeal.
Signed this 17th day of April, 1986.
Original signed by G. H. Ferguson
Mining and Lands Commissioner.