Warwick Municipal Drain Improvement 1994 (Re), 1995 ONAFRAAT 19

WARWICK MUNICIPAL DRAIN IMPROVEMENT 1994 (RE) Township of Morris P. & H. Dorsch

WARWICK MUNICIPAL DRAIN IMPROVEMENT 1994 (RE), 1995 ONAFRAAT 19

March 28, 1995

DATE OF DECISION:

July 27, 1995 for Order September 5, 1995 for Reasons

1995 ONAFRAAT 19

An Appeal of P. & H. Dorsch from the Report of J. A. McBride, P. Eng., dated April 28, 1994 on the Warwick Municipal Drain Improvement 1994

An Application of the Township of Morris to amend the said Report in the Township of Morris, in the County of Huron.

DECISION

This Appeal and the Application came before the Ontario Drainage Tribunal on March 28, 1995 at the Township of Morris Council Chambers, R. R. #4, Huron County Road No. 16, Brussels, Ontario.

All assessed owners were served with a Notice of Hearing, as evidenced by the Affidavit of Service filed, and invited to make representations.

At that time there appeared before the Tribunal, J. A. McBride, P. Eng., who prepared and presented the Report dated April 28, 1994; Keith Johnson, a member of Council on behalf of the Appellants P. & H. Dorsch; M. Malhiot and R. Bennett on behalf of the Ministry of Natural Resources and other assessed owners.

The Clerk of the Township of Morris, Nancy Michie, A.M.C.T., acted as Clerk of the Tribunal.

On hearing the evidence, the submissions and reading the materials filed:

IT IS ORDERED THAT

the Appeal of the Appellants P. & H. Dorsch be withdrawn.

IT IS ORDERED THAT

the Application of the Township of Morris to amend the Report of J. A. McBride, P. Eng., dated April 28, 1994 on the Warwick Municipal Drain Improvement 1994 be dismissed.

IT IS ORDERED THAT

the construction of the Warwick Municipal Drain Improvement 1994 proceed as recommended by J.A. McBride, P. Eng., in his Report dated April 28, 1994.

IT IS ORDERED THAT

the Ministry of Natural Resources pay to the Township of Morris the sum of $500.00 as costs to be applied by the Township to the cost of this hearing.

IT IS ORDERED THAT

there be no other Order as to costs and all parties are responsible for their own costs.

Attention is drawn to s. 73 of the Drainage Act, R.S.O. 1990, c. D.17.

Dated: July 27, 1995.

Bernard Goodal, Chairperson

REASONS FOR DECISION

The Appeal was launched by the Appellant, P. & H. Dorsch pursuant to s. 54 (1) of the Drainage Act, R.S.O. 1990, c. D. 17 (the Act).

An Application was launched by the Township of Morris purportedly pursuant to s. 58 (4) to correct a gross error in the Report. The Appeal and the Application came on for a hearing on March 28, 1995.

Prior to the commencement of the hearing, a notice in writing withdrawing the Appeal of the Appellant J. & H. Dorsch was filed as Exhibit #3.

An Order will therefore go withdrawing the Appeal of the Appellant P. & H. Dorsch.

The Application by the Township purportedly pursuant to s. 58(4) of the Act went on to a hearing.

In order to understand the origin and the nature of the Application, it is necessary to recite the history of the proceeding and particularly the participation in that history of the Ministry of Natural Resources (MNR) acting as agent for the Federal Government under the Fisheries Act R.S.C. c. F-14 and the Department of Fisheries and Oceans (DFO).

The proceeding was initiated by the Council of the Township of Morris, in response to a request of the owners of E 1/2 Lot 15 in the N l /2 Con. 4 requesting an improvement of the Warwick Municipal Drain.

The Warwick Municipal Drain was constructed pursuant to a Report of John Roger, O.L.S. in 1916. The drain was improved in 1955 pursuant to a Report of James A. Howes, O.L.S. It was further improved in 1958 pursuant to a Report of James A. Howes, O.L.S.

On July 29, 1993, Council of the Township of Morris appointed an Engineer to prepare a Report under s. 78 of the Act. The on-site meeting was held on August 18, 1993. The MNR was invited to attend the meeting but did not attend nor reply to the invitation.

A second on-site meeting was held on February 7, 1994. The MNR was notified but advised that they would not be attending the meeting.

After a survey and field examination, including test holes to determine the soil conditions, the Engineer prepared his Report. The Report recommends the improvement of the reach of the Warwick Municipal Drain in the E 1/2 Lot 15, N 1/2 Con. 4. and the 15-16 Sideroad Crossing. The existing Drain consists of 170 m of covered drain housed in 14" diameter tile and 40 m of open drain at its downstream end, at the westerly limit of the E 1/2 Lot 15, N 1/2 Con. 4. Because of the unsuitable soil conditions for an open drain, and because the lands are pastured and cattle have access to the Drain, it was decided to enclose the entire reach of the Drain in 380 mm diameter filtered perforated plastic drainage tile. Because the drain is also a source of drinking water for the cattle, it was necessary to make provisions for the watering of the livestock pasturing on the lands. The Engineer contacted the representative of C.U.R.B. at the Maitland Valley Conservation Authority, inquiring about alternate livestock watering devices. They advised him, that a special grant was available for providing livestock watering facilities. The feature was incorporated into the recommended works; however, as a condition of the grant livestock access to the drain had to be terminated. The condition was satisfied by the installation of livestock watering devices and enclosing the entire reach of the drain over the E 1/2 Lot 15, N 1/2 Con. 4. The increase in costs was assessed to the owner as Special Benefit.

A copy of the Report was sent to MNR on April 29, 1994.

The proceeding continued in the normal manner with all requisite notices served on MNR. The Council of the Township of Morris adopted the Report by a provisional by-law on May 31, 1994. On that date, they set the date for the Court of Revision for June 21, 1994 and called for tenders.

On or about June 15, 1994, the Engineer received a telephone call from the MNR Area Biologist, Mike Malhiot, requesting that he meet with him to review the various proposed municipal drainage projects in the Township of Morris. They met on June 20, 1994. At the meeting, Mr. Malhiot advised the Engineer that the Ministry considered the open portion of the Warwick Municipal Drain as a "fish habitat" and therefore the Ministry would not permit it to be filled in and replaced with a tile as proposed.

The Court of Revision was held on June 21, 1994. The Court dismissed the Dorsch Appeal.

Mr. Dorsch filed his Notice of Appeal to the Tribunal pursuant to s. 54 of the Act, dated July 7, 1994 with the Clerk of the Township on July 11, 1994. The Clerk forwarded the Dorsch Notice of Appeal to the Ontario Drainage Tribunal on September 27, 1994. There appears to be a practice of a number of the Clerks of Municipalities to hold the Notice of Appeal to the Tribunal while Council attempts to resolve the issues in contention. After an unsuccessful attempt, the Clerk then forwards the Notice of Appeal to the Tribunal. This is a practice to be discouraged. When a Notice of Appeal is filed with the Clerk of the Municipality, he is to send it forthwith to the Ontario Drainage Tribunal. By this, we do not mean that attempts should not be made by the Council and other interested parties in the Municipality to resolve the issues in contention. Such attempts are proper and beneficial. However, this does not mean that in the interval the Notice of Appeal should be held by the Clerk pending the outcome of the discussions. The Tribunal, for a more efficient conduct of its business, and so that it is fully informed and aware of Appellants, should have the Notice of Appeal as soon as it is practicable to deliver it to it.

When Council was informed of the MNR position, it was at a loss what to do next. Finally, it was decided that an Application should be made to the Ontario Drainage Tribunal under s. 58 (4) of the Act to amend the Report to leave the downstream 40 m of the drain as an open drain.

The Application under s 58(4) of the Act was made to the Tribunal on June 28, 1994. Further discussions with MNR by the Township went on, and MNR consolidated the position and formally advised the Township of the fish habitat and that DFO would not favourably view an Application to "harmfully alter" this fish habitat, as other viable options exist in the opinion of MNR and DFO. They added an apology for the inconvenience this discussion may have caused.

After the Tribunal had received the Township's Application pursuant to s. 58(4) of the Act, by a letter of August 2, 1994, it informed the Township that it was of the view that the MNR had no authority to demand a modification of the drainage works as designed by the Engineer. The drainage works can be constructed as the Engineer had designed them.

However, the Tribunal added that after all of the interested parties have considered the matter in the light of our view as to the Ministry's jurisdiction to intervene in this proceeding and still want the Order to issue, it would issue the Order.

After receiving the Tribunal's letter of August 2, 1994, Council again met with the affected owners and informed MNR of the Tribunal's view. The MNR Area Supervisor advised the Engineer by telephone that the Ministry has not changed its position.

During the month of August, a number of meetings were held with the affected owners and MNR biologist in an attempt to resolve the issue. The MNR biologist's position remained that the open 40 m of the Drain is a fish habitat and that the conversion of the channel to a closed tile would be considered a harmful alteration of fish habitat. contrary to s. 35(1) of the Fisheries Act. He added that a work permit under the Lakes and Rivers Improvement Act would be required for any alterations to the channel. He stated that he had discussed the matter with Fisheries Officers at the DFO, who indicated that authorization to harmfully alter this habitat (as provided by s. 35(2)) would not be viewed favourably, especially in consideration of other viable options. In the event an authorization was pursued and obtained, a compensation agreement would be required, which would stipulate that habitat enhancement measures would need to be undertaken elsewhere in this watercourse. He once again regrets any inconvenience this may have caused.

Due to the concern expressed by upstream landowners that the poor condition of the tile downstream of the sideroad would result in pressure build-up and possible damage to the good tile upstream of the sideroad, the Township installed an emergency catchbasin on the upstream side of the road to act as a pressure relief valve.

In a final effort on November 16, 1994, the Engineer, on the suggestion of the MNR biologist, contacted the DFO office in Burlington. That office advised him that DFO would not consider permitting the destruction of this fish habitat in this case because there was a viable alternative. The DFO representative, Ed deBruyn, was not prepared to consider or discuss a "compensation package" for the project.

The hearing was originally scheduled for January 10, 1995. After the date for the hearing had been set, the Tribunal notified MNR of the scheduled hearing and invited the Ministry to make representations at the hearing with respect to the opinion expressed by the Tribunal on the issue of the fish habitat and the Ministry's jurisdiction in the matter. If they accepted the invitation, they were asked to file a Notice of Application in the Appeal. The Tribunal added that it continues to hold the same opinion, "That the MNR has no authority to demand a modification of the drainage works as designed by the Engineer". It further advised the Ministry that if, in fact, the Ministry does not appear at the hearing, "We will assume that it has accepted the position taken by the Ontario Drainage Tribunal".

By a letter of December 12, 1994, signed by Ron Bennett, Area Supervisor, Wingham Area Office, the Ministry requested an opportunity to make representations at the hearing of January 10, 1995. In the meantime, Council of the Township was attempting to resolve the issue by representations to their MP, MPL, the County of Huron Federation of Agriculture and OMAF.

Another meeting was held on December 19, 1994 with the MNR Area Supervisor and biologist. They continued to maintain their initial position. A further meeting was convened by Council with the affected landowners, their MP and MPL, and other persons in authority, in an attempt to resolve the issues. Because of the ongoing attempts to resolve the issues, a request was made by the Township to adjourn the hearing to a date in March 1995. The hearing was adjourned and rescheduled to be heard on March 28, 1995.

The negotiations process continued. The Ministry maintained its initial position. As the date of the hearing approached, the MNR biologist, M. Malhiot, on February 9, 1995, called the Engineer and advised him that DFO would now agree to the destruction of the 40 m of fish habitat provided that compensation in the form of enhancement of 20 m of existing fish habitat on some other Municipal drain in the same watershed unit. On February 28, 1995, Council approved an "Application for Authorization for Works or Undertakings affecting fish habitat" and forwarded it to DFO. On March 17, DFO informed the Township that its Application would be approved with compensation being the placement of in-stream rock structure of 20 m of channel in the same sub-watershed. It asked for a commitment by Council to implement these compensation measures. On March 27, 1995, the Engineer met with Council to discuss the details of the DFO offer and possible implementation methods and associated problems. On May 27, 1995, Council passed a resolution committing the Township to the compensation package proposed by MNR.

At the hearing, Mr. McBride, P. Eng., reviewed the proceeding from beginning to end and set out the current situation in which the Township finds itself.

He said, despite maintaining since last June that this was not possible, DFO has now offered to allow the 40 m of drain to be enclosed, if the Township agrees to 20 m of habitat improvement elsewhere. The Engineer added that on the advice received, Council understands that it must accept this "compensation offer", as the Fisheries Act does not permit destruction without compensation. Therefore, Council is prepared to accept the offer in order to allow the work to proceed "as designed", but would be doing so, "under protest". If Council agrees with the compensation offer, it would mean that the fish habitat improvement works would be undertaken on a downstream reach of the Warwick Municipal Drain or on a completely different drain altogether, none of which are affected by the current Report. Furthermore, undertaking this compensation work in another location affects other landowners who have had no notice of this proceeding and which may result in "fisheries habitat restrictions" when the time comes to maintain and repair or improve the Municipal Drain. Council is quite concerned about this and is unsure how this work in another location can be "legalized" under the Drainage Act.

There was evidence by John Duskocy, member of Council, particularizing the added costs that have been incurred because of the issue of the fish habitat. The summary of his presentation in written form has been filed as Exhibit #7. The sums that have been expended in attempting to resolve the issue of the fish habitat, excluding the cost of the hearing, total $7,788.00.

Mike Malhiot, a professional biologist with more than 15 years of experience with the Ministry, gave evidence on behalf of the Ministry. In his opinion, after having determined that there is a fish habitat in the Drain 35 (1) of the Fisheries Act applies. That being the case, a work permit under the Lakes and Rivers Improvement Act is required for any alteration to the channel. He cautioned that if the Council had decided to proceed with the drainage works as designed, they would have exposed themselves to prosecution under s. 31 of the Act. He pointed out that he had set out the possibility of authorization of the harmful alteration or destruction. A compensation agreement would be required which would stipulate that habitat enhancement measures would be undertaken elsewhere in the watercourse. He added that at that time, it could have been readily done and all of the added expenses avoided. The cost of the compensation is estimated at $500.00. He added that this proposition was put forward as early as June 23, 1994, in a letter of Mr. Bennett's filed as Exhibit #10.

Assuming that an agreement to implement the compensation package imposed by MNR on Council is entered into, Can the work be done under the Drainage Act? To this, our answer is no. Council will have to find some other vehicle or some other means of implementing the package which they have undertaken to implement. Since the work is to be done on a Municipal Drain, it must be done pursuant to a Report of an Engineer under the Act. The work would have to be done on either the downstream reach of the Warwick Municipal Drain or on some other drain. Regardless, whether it is done on the Warwick Municipal Drain or on some other drain, the proceeding would have to comply with the provisions of the Act.

The difficulty, as we see it, is: How would such a proceeding be commenced under the heads provided in the Act or in fact incorporated into an existing Report? It could certainly not be commenced under s. 4 by way of Petition for a drainage works. The only alternative is s. 78 of the Act. It provides for work, "for the better use, maintenance or repair of any drainage works" or improvements of the drainage works. Reviewing the meaning of those terms, as set out in s. 1, 17, 25 and 13, respectively, in our view, the construction or improvement of fish habitat would not fall within any of the definitions as set out in that section. Therefore, in our opinion, the proposed compensation to construct a 20 m fish habitat within a Municipal Drain is not possible under the Act.

If Council enters into such an Agreement, they would not be able to implement the provisions under the Drainage Act. Therefore, they could not fulfil the undertakings in the Agreement by providing the compensation requested with a Municipal Drain. It would be necessary to find some other watercourse, other than a municipal drain, to fulfil the undertaking in the compensation agreement.

Even if the work could be constructed under the Act, Who is to pay the additional costs? As we have stated on other occasions, in order to levy costs against assessed owners in the watershed, they must be costs expended on drainage works as defined in s. 1.11 of the Act. We continue to be of the opinion that the improvement or the construction of fish habitat is not within the ambit of the meaning of "drainage works" as defined by the Act. Consequently, the costs of such works cannot be assessed against the assessed owners in the watershed.

The Municipality is faced with these difficulties in attempting to carry out the provisions of any compensation agreement. For these two reasons, it is our view that the compensation agreement cannot be fulfilled if the work is to be done on a Municipal Drain.

The indication at the hearing was that an agreement had not in fact been entered into with MNR to carry out the proposed compensation. However, Council did pass a resolution on March 27, 1995 to implement the compensation package. The resolution reads as follows:

"That the Township of Morris agrees to implement the 20 m of fish habitat compensation in the Warwick Municipal Drain Improvement Works and this work be undertaken on the downstream open section of the Warwick Municipal Drain".

We already expressed our view that this cannot be done.

The next question that was put to us is: who is to pay for the resulting additional costs that have been incurred in resolving the fish habitat issue? These expenditures, in our view, fall into the same category as the expenditures that would be made in constructing the fish habitat as compensation for the destruction. The expenditures cannot be charged to the assessed owners under the Act. If that is the case, they must be paid by either the Municipality out of its general fund or by MNR.

In his presentation to the Tribunal, Councilor John Duskocy states that even though the matter of the destruction of fish habitat has been resolved, the matter of the significant extra cost to the Township remains outstanding. He stated that as a result of a MNR last minute objection to the work proposed on the drain, much additional time and effort has been expended by Township Council, the Clerk and Drainage Engineer. This included numerous meetings, installing of the relief mechanism for the upstream tile drain, and negotiations for a total sum of $7,788.00. It is the view of Council that the affected landowners should not have to pay these costs, which have resulted from MNR failing to comment on this project during the preliminary stages when they were offered every opportunity to do so.

It was his understanding, that MNR was willing to compensate the Municipality for costs of a new or an amended Report. However, they have not formally acknowledged this. Proceeding on this assumption, the Township Clerk had prepared an estimate of the cost and submitted it to the Ministry on December 21, 1994. At that time the costs were estimated at $6,500.00. The letter was sent to MNR particularizing the added expenses with the Council requesting written commitment by January 10, 1995, that MNR will compensate the Township for all of these costs. The statement was sent pursuant to a telephone conversation of December 21, 1994.

The Ministry stated in their letter of July 13, l 995, filed as Exhibit #11, "Regardless of the timing of our comments, our Ministry cannot authorize the destruction of fish habitat". This would be in conflict with Federal Regulations and subject to Fisheries Act charges. By this letter of Mr. Bennett, he attempts to explain the delay in the Ministry's participation in this proceeding. He states that the Ministry underwent a massive reorganization two years ago. This resulted in a substantial reconciliation of staff members and locations, and many staff members undertook new responsibilities. Locally, their expertise in drainage was substantially negatively impacted. In the past two years, they have been working very hard to acquaint themselves with previously unfamiliar legislation, regulations and procedures. They have undertaken an internal review to remedy the deficiency and miscommunications and to avoid further miscommunications. They ask that the office continue to be sent Notices of Petitions after Council has accepted the petition. They intend to hold information sessions in the Fall, to invite Engineers and Superintendents to the workshops. They offer an opportunity to meet with Council in the Fall to discuss the issues.

Accepting Mr. Bennett's explanation for the delay in the Ministry's participation in the proceeding, we still cannot understand why the Ministry, after having been informed of the issues that were to be raised in this Appeal, and given ample opportunity to submit argument on the issues at the hearing, did not sent someone to argue the legal point of the Ministry's jurisdiction in the matter? We have no problem in accepting Mr. Malhoit's professional qualifications as a biologist. Further, we accept his evidence that in fact the downstream 40 m of the Warwick Drain proposed to be worked on is in fact a fish habitat; there is no evidence to the contrary. However, Mr. Malhoit' s professional qualifications do not qualify him to argue the point of law which has been raised and that is, the jurisdiction of the Ministry over fish habitat in municipal drains as the authority devolves on the Ministry as the agent of the Crown in the right of Canada under the Fisheries Act, and the Department of Fisheries and Oceans. For that matter, neither did the Municipality have anyone qualified to argue that question. We were therefore left on our own to decide the question without benefit of argument from Counsel. On further reflection and without further argument on the issue we conclude as we have concluded in the Appeal of J. & S. Reinhart from the Report of G.B. Gamsby, P. Eng., dated January 6, 1994 on the Highway #7 Drainage Works, in the Township of Woolwich in the Regional Municipality of Waterloo, a decision rendered July 13, 1995, where we held that; the jurisdiction under the Fisheries Act, exercised by the Ministry of Natural Resources for Ontario, as agent of the Ministry of Fisheries and Oceans of the Federal Government does not extend over drainage works constructed pursuant to the Drainage Act, R.S.O. 1990, c. D. 17 or a predecessor of the Act. Since that Decision will not be included in the Consolidated Decisions and Reasons for Decision of the Ontario Drainage Tribunal until 1996, we reproduce here what we had said in that case:

We are reinforced in this position, by the case of R. vs MacMillan Bloedel Ltd. 1984 CanLII 740 (BC CA), 1984 11 C.C.C. (3d) 143. In that case, the accused (MacMillan Bloedel Ltd.) was charged with carrying on work that resulted in harmful alteration, disruption or destruction of fish habitat, in a non-named stream, sometimes called "Russell Creek". It is a tributary of Tsitika River which outlets into Robson's Bright on the east coast of Vancouver Island. The accused carried on a logging operation which had disrupted a fish habitat in the tributary. There were certain species of fish in the tributary. The accused was convicted at trial. On appeal the charge was dismissed. On further appeal by the Crown to the Court of Appeal, the appeal was dismissed with one dissenting judgment. A further appeal to the Supreme Court of Canada was refused.

In that case, the majority of the British Columbia Court of Appeal, a judgment of Taggart J. A., held; that the Appeal should be dismissed. In the judgment, Taggart J.A., stated that: "The Fisheries Act depends for its constitutional validity on s. 91(12) of the Constitutional Act 1867, which gives parliament exclusive authority to legislate with respect to Coast and Inland Fisheries. Accordingly, s. 31 of the Fisheries Act which deals with the harmful alteration of fish habitat, must be restricted to fisheries. In this case, a fishery was not affected by the logging practices of the accused since the fish and tributary did not constitute a fishery.

The issue revolves primarily around the definition of the word "fishery". The Court referred to two definitions and on the basis of those definitions, arrived at the conclusion that the definition did not extend to the stream that the accused is alleged to have harmfully altered the fish habitat. At page 149 Mr. Justice Taggart concluded, ''I'm of the opinion that s. 31 of the Fisheries Act should be restricted to fisheries. In this case a fishery was not affected by the logging practices of the defendant, since the fish in Russell Creek did not constitute fishery as that term has been defined by the Supreme Court of Canada in Fowler vs The Queen (1980) 1980 CanLII 201 (SCC), 53 C.C.C. (2d) 97".

The dissenting judgment of Craig J.A. preferred the judgment of Martian D. J. in the Northwest Falling Contractors Ltd. v. The Queen (1980) to S.C.R. 292, p.p. 300, where he said: "The power to control and regulate that resource (fish) must include the authority to protect all creatures which form a part of that system". Pursuant to this definition, the jurisdictional boundary extends to wherever "fish" as defined by s. 2 of the Fisheries Act are found.

There is not sufficient evidence before us, to find on the balance of probabilities, that there is a fish habitat in the reach of the existing drain over which the proposed work is to be done. The Report (Exhibit #2) on page 13, contains the following statement: "Ministry staff have expressed the opinion that portions of the Main Drain south could be used by pike for spawning in the Spring. They also expressed the view, that the Main Drain South is fish habitat even though it is apparently a man-made channel". One of the witnesses at the hearing testified that he caught a fish in the drain some years ago.

There is no evidence before us, that a fishery will be affected by the construction of the proposed drainage works. We find, that whether the jurisdictional boundary under the Fisheries Act is defined by the majority judgment or the minority judgment in the MacMillan Bloedel case, the proposed drainage works are beyond the boundary and that the Ministry of Natural Resources jurisdiction, as agent of the Ministry of Fisheries and Oceans under the Fisheries Act does not extend over the proposed drainage works Highway No. 7 Drainage Works in the Township of Woolwich.

Furthermore, we are of the view that there is an ultimate limit beyond which one cannot push the jurisdictional limit derived from the Fisheries Act, regardless of which limit or jurisdictional boundary one adopts as delineated by the majority or minority judgment in the Bloedel case. Drainage works constructed under the Drainage Act,

R.S.O. 1990, c. D.17, a Provincial statute, are private works, funded by private funds, (to the extent that the works provide drainage for private lands) constructed for a specific purpose; that is, the draining of areas requiring drainage and providing a sufficient outlet to them. To fulfil that purpose, the drainage works must be maintained and repaired (a duty imposed on each Local Municipality by s. 74 of the Act) and as time goes by and standards rise be improved (as provided by s. 78 of the Act).

Surely, it cannot be argued, with any rational conviction, that the universal and absolute prohibition is. 32 of the Fisheries Act, R.S.C. 1990, c. F-14 against, "harmful alteration, disruption or destruction of fish habitat, could extend to defeat and destroy the purpose of private works constructed on private lands financed by private funds. The purpose of the Act and the intention of Parliament in enacting it, was either to protect fisheries (the view held by the majority in the Bloedel case), or to protect the fish (the view held by the minority in the Bloedel case). In doing that, it cannot be said that Parliament had intended, or, in fact had the authority to encroach upon works that are private and constructed for a specific purpose and defeat that purpose by the apparent absolute and universal prohibition against the harmful alteration, disruption or destruction of fish habitat contained in s. 31(1) of the Fisheries Act.

In this case, the ultimate limit of jurisdiction under the Fisheries Act would be transgressed if in fact MNR as agent of the Ministry of Fisheries and Oceans had the authority to prohibit the maintenance and repair or improvement of the Highway No. 7 Drainage Works or impose conditions on it purportedly in exercise of its jurisdiction under the Fisheries Act as agent of the Ministry of Fisheries and Oceans.

A helpful analogy is the judgment of the Supreme Court of Canada in R. vs. Summerville, 1972 CanLII 175 (SCC), [1974], S.C. R. 387. There the Canadian Wheat Board Act was construed in a way which confined the operation of the Act to its objectives and to the power conferred on Parliament by the Constitutional Act, 1867. In that case, Mr. Summerville was charged with transporting wheat across a Provincial border without a permit. He did this to take wheat grown on his farm in Saskatchewan to feed cattle on his farm in Alberta. The Act did not provide an exemption for such transportation, but as a matter of interpretation, the exception was made to keep the Act within its purpose and its underlying constitutional head of legislative power. Martian J., who delivered the judgement of the majority, said at p. 300 S.C.R.; "The question for determination is whether, on these facts, the Respondent was in breach of the provision of s. 32 (b). Does s. 32 (b) prohibit a grain producer in Saskatchewan from using his own grain to feed his own cattle in the Province of Alberta?

At p.o. 391 S.C.R., Martian, J., concluded that the Act was based upon the regulation of Trade and Commerce, which is made the exclusive legislative prerogative of Parliament by s. 91(2) of the Constitution Act, 1867.

At p.p. 392-94 S.C.R., he said:

"In my opinion, it is proper, in determining the Application of s. 32 (b) of the fact of this case, to consider the intention of the Act and also the basis upon which this Court held that its enactment was intra vires of the Parliament of Canada ....

To interpret s. 32(b) as applying to the circumstances of this case, would be to apply it for an object outside the intention of the Act and would involve the conclusion that the Act applies to purposes other than the regulation of Trade and Commerce. The fact of the case involved no trading in grain by the Respondent and no commercial transaction. The Respondent dealt with his own grain for his own purposes and did not deal with anyone else.

In MacKay vs. the Queen 1965 CanLII 3 (SCC), [1965] S.C.R. 798, Cartwright, J., as he then was, who delivered the Reasons of the majority of this Court, said at p.o. 536-7:

"The second applicable rule of construction is, that if an enactment whether of Parliament or of a Legislature or of a subordinate body to which legislature power is delegated, is capable of receiving a meaning according to which its operation is restricted to matters within the power of the enacting body it shall be interpreted accordingly.

In interpreting s. 32(b), now s. 33(b) of the Act, I share the view expressed by Adamson, C.J.M., in the Murphy case (Murphy v. Canadian Pacific R.C.O. (1956), 1956 CanLII 461 (MB CA), 4 D.L.R. (2d) 443 at p. 448):

If there is no marketing or commerce in grain the provisions should not apply." And by Johnson, J. in the present case (p.347 D.L.R.):

"This interpretation does no violence to the language of s. 32(b), but merely restricts its operation to the movement of grain from one Province to another that is made either in contemplation or following upon a purchase or sale of that grain".

Mr. Justice Taggart, J.A., concludes at p. 149:

"Applying that reasoning to the case at bar, I'm of the opinion that s. 31 of the Fisheries Act should be restricted to Fisheries. In this case, the Fishery was not affected by the logging practices of the defendant since the fish in Russell Creek did not constitute a fishery as the term has been defined by the Supreme Court of Canada in Fowler v. The Queen.

I would dismiss the Appeal".

Some reference was made at the hearing that the Federal Legislation (Fisheries Act) has preference or overrides the Provincial Legislation (the Drainage Act), and therefore, the issue must be determined by the provisions of the Fisheries Act. This appears to be a reference to the Doctrine of Paramountcy. That Doctrine has no application here. The Doctrine of paramountcy only applies where there is a Federal law and Provincial law which are: (i) each valid (ii) inconsistent. It seems clear that both of the Acts are valid. The Fisheries Act is valid Federal Legislation under s. 91(12) of the Constitutional Act 1867, which gives Parliament an exclusive authority to legislate with respect to coasts and inland fisheries. The Drainage Act is valid provincial Legislation under s. 91(13) of the Constitutional Act 1867, which gives exclusive jurisdiction to the Province to legislate with respect to property and civil rights in the Province. The provisions of the two Acts are, however, not inconsistent. Nor do the provisions in one duplicate the provisions in the other. There is, therefore, no actual conflict between the two legislative schemes, and consequently, the Doctrine of paramountcy does not apply. The issue here is one of jurisdictional boundaries. That issue we have already dealt with.

Council now finds itself in a position of having accepted the compensation package and undertaken to carry it out, but unable to proceed under the Act. Since we have already held that MNR has no jurisdiction in the proceeding, it cannot enforce the undertaking. Whether anything should be done with respect to it in conscience is a matter which we must leave to Council. It would have been much more prudent, in hindsight, for Council to have retained a solicitor to advise them on the issue before giving the undertaking. Be that as it may, there is nothing further we can do nor need to say with respect to the compensation package.

The other question which we have been asked to address is: Who is to pay the added costs, in the sum of $7,888.00, that have been incurred by the Township in the fish habitat issue raised by MNR?

Although we feel we do not have the authority to make an Order directing MNR to pay those costs, it is our view that these added costs should be paid by MNR. MNR has been given every opportunity from the time of the filing of the Petition to participate in the proceedings and to raise that issue prior to the adoption of the Report. There was ample time, in spite of the reorganization of the Ministry or any other inhibiting factor within its internal organization. They had failed to do that. They came along subsequent to the Report being adopted by Council and subsequent to tenders having been called. From then on, as the proceeding indicates, it was a difficult matter to resolve and as the amount of the expenses further indicates. There is some evidence before us that at one time, the Ministry had suggested that they would pay the additional costs.

As we have already stated, there is no authority under the Act to levy those costs against the assessed owners. The only heads under which costs can be levied against lands in the watershed are for the benefits accruing to lands or for the outlet provided for lands by the drainage works. There is no other head. The expenses incurred in attempting to solve the habitat issue do not fall under either of these heads. At another hearing, it was suggested that preserving fish habitat is merely the cost of doing business. That may very well be. However, until the Drainage Act is amended, there is no provision for assessing those costs against the lands benefiting or using the drainage works as an outlet. It seems to us to be manifestly unfair, even outside the Act, to levy these costs against the lands in the watershed. The fish habitat works are for the benefit of the general public, and consequently, their costs should be borne by the general public, rather than the individual assessed owners.

It seems to us, that it would have been much more beneficial to everyone had the issue of jurisdiction of the Ministry of Natural Resources, wearing its hat as agent of the Federal Crown under the Federal Fisheries Act to impose conditions on drainage works constructed under the Drainage Act been fully and competently argued before us.

An Order will therefore go that the Application of the Township of Morris to amend the Report of J.A. McBride, P. Eng., dated April 28, 1994, on the Warwick Municipal Drain Improvement 1994 be dismissed.

It is further Ordered that the construction of the Warwick Municipal Drain Improvement 1994 proceed as recommended by J.A. McBride, P. Eng., in his Report dated April 28, 1994.

Since P. & H. Dorsch had withdrawn their Appeal at the commencement of the hearing, this hearing would have been much shorter. Much of the hearing time was consumed by the issue of the Ministry's jurisdiction in this proceeding and the fish habitat question. It would be inequitable that the assessed owners on the drainage works should pay all of the costs of the hearing. MNR, by its delay in entering the proceedings and then by its persistence that it had jurisdiction to direct a modification of the drainage works and to impose a compensation agreement upon the Municipality, consumed most of the hearing time.

An Order will therefore go, that the Ministry of Natural Resources pay to the Township of Morris the sum of $500.00 as costs to be applied by the Township to its costs of this hearing.

There will be no other order as to costs, and all parties are responsible for their own costs.

Dated: September 5, 1995

Russell Piper, panel member;

John Bacher, panel member;

H.H. Todgham, P. Eng., Vice- Chair and

Bernard J. Goodal, Chairperson

John Bacher (Dissenting in part)

IN THE MATTER OF:

an Appeal of P. & H. Dorsch from the Report of J.A. McBride, P. Eng. and IN THE MATTER OF an Application of the Township of Morris ....

Dissenting Decision re Warwick Municipal Drain Improvement

This dissenting opinion is restricted to the matter of the awarding of costs by the Tribunal, and the repeal of any by-law by the municipality authorizing the fish habitat compensation work, pursuant to the Fisheries Act. I am agreement with my colleagues that there need be no alteration to the Engineer's Report to secure compliance with the fish habitat compensation agreement on the downstream open section of the Warwick Municipal Drain. This was proposed in a letter dated March 15, 1995 from Mr. Serge Metikosh of the Department of Fisheries and Oceans. It was subsequently approved on March 27, 1995 by the Council of the Township of Morris.

The required action of the placement of stream rock structures along a 20-metre section of open channel with the same sub-watershed unit as the Warwick Drain, can take place according to the provisions of the Fisheries Act. This is why they do not now require a modification to the Engineer's Report, being a procedure unrelated to the requirements of the Drainage Act.

Just as it appears that the placing of rock is a requirement of the Fisheries Act to compensate for the destruction of fish habitat in accordance with the provisions of that legislation, consistency dictates that the Drainage Act, not be the means of determining who pays the cost of that compensation. This is governed by the procedures established under the Fisheries Act.

The town's request for payment is twofold. One involves the past costs of securing the regulatory approvals to obtain the needed authorization of the destruction of fish habitat. The other concerns involve the future work involving the placing of rock to compensate for the now authorized destruction of habitat. The costs of both matters should be decided under the regulatory framework established by the Fisheries Act, as these decisions are not within the powers assigned to the Drainage Tribunal under the Drainage Act.

Reasons for Compensation Agreement

The reasons for the compensation agreement lie in the Township's response to a request by the Ministry of Natural Resources to discontinue the proposed drainage works. MNR Area Biologist Mike Malhiot determined that 40 metres of open drain to be tiled in the proposed works constituted a "harmful alteration of fish habitat under the Fisheries Act." He also noted that a work permit under the Lakes and Rivers Improvement Act would also be required for any alterations to the channel.

In response to a question from the Chairman of the Tribunal regarding the applicability of the Fisheries Act to municipal drains constructed under the Drainage Act, Mr. Malhiot testified that the legislation applies to areas of fish habitat that have connections to fisheries that have human use. To decide if an area is fish habitat as defined under the Fisheries Act, MNR determines if such areas have connection to fisheries. For municipal drains this commonly involves connections to natural watercourses.

Mr. Malhiot advised the Council that the goal of barring livestock from an open watercourse and reducing slumping and soil erosion could be achieved by fencing the Warwick Drain rather than enclosing it. Rather than agree to his request to discontinue the project, Council instead chose to pursue a course established under Section 35(2) of the Fisheries Act. This provides for the destruction of Fish Habitat with the authorization of the Minister of Fisheries and Oceans. In the event of a successful application for habitat destruction, it is the obligation of the parties to agree to remedial measures to compensate for the destruction of fish habitat.

According to the Council's evidence, a considerable effort was made to persuade the Minister of Fisheries and Oceans to authorize the destruction of habitat under the Fisheries Act. It has submitted a bill to the Tribunal for $7,788 in what appears to be lobbying costs, apart from a $350 expenditure required to install a temporary catchbasin. This involved such expenses as two special Council meetings, and "portion of costs for 2 people to attend the ROMA convention for the presentation of the Resolution concerning the Fisheries issue."

Many of the costs the council is seeking compensation for what appears to be better categorized as political lobbying for changes to the Fisheries and Drainage acts, rather than concerns directly restricted to the Warwick Drain. On January 3rd the Council passed a motion, "requesting the Minister of Fisheries and Oceans to consider amending the application of the Fisheries Act to municipal drains and to open discussions with stakeholders in this regard." This resolution was subsequently adopted by "ROMA, DSAO, AORS, and the AOLS-PEO Joint Committee on Land Drainage." It would appear to be quite novel to have the expenses for lobbying widespread changes to legislation paid for out of Drainage Tribunal expenses. Meetings were also held with OFA representatives and MP Steckle, prior to the decision of the Minister of Fisheries and Oceans to authorize the destruction of fish habitat.

After an extensive lobbying effort, documented by the Township of Morris' request for payment for costs "due to the Fisheries Concern of the Ministry of Natural Resources", the Minister of Fisheries and Oceans on March 17, 1995 agreed to permit the destruction of fish habitat. Under the Provisions of Section 32(2), of the Fisheries Act, the authorized destruction of fish habitat requires compensation.

The compensation suggested by the Ministry of Fisheries and Oceans was the placement of in- stream rock structures on 20 metres of channel in the same watershed. This was agreed upon on March 27, by motion of the Township of Morris, "on the downstream open section of the Warwick Municipal Drain." From the testimony at the hearing, it appears that the cost of this compensation for the destruction of fish habitat will come to $500.

Reasons for the Denial of Costs

Under Section 98(10) of the Drainage Act, the Tribunal has the authority to apportion the "costs of any proceedings" between the parties involved in a hearing, including "other such costs the Tribunal may direct." This procedure, however, relates to hearings conducted under the Drainage Act, not to expenses incurred under other statutes.

For the Tribunal to determine costs resulting from procedures under the Fisheries Act, is, ultra vires, going beyond its authority. Awarding costs relating to the destruction of fish habitat, required as a matter of compensation under the Fisheries Act, is a matter neither the Tribunal, nor any agency of a provincial government in Canada, is empowered to do. To attempt to do so would be an invasion of federal jurisdiction as established under section 91(12) of the Constitution Act, 1867. This gives the parliament of Canada exclusive authority to legislate with respect to sea-coast and inland fisheries.

The priority given the Fisheries Act, over any conflicting provincial legislation was clearly established by Newfoundland Provincial Court Justice J. Woodrow, in R. Versus Mount Pearl Council. Here the Mount Pearl Municipal Council, in a June 9, 1986 court decision, was convicted of violating Section 35(1) of the Fisheries Act, although it had obtained a provincial certificate of approval from the Newfoundland Department of the Environment. Also, like many natural watercourses, altered under the provisions of the Drainage Act, the stream had previously been channelized.

In his ruling, Provincial Court Justice Woodrow noted that,

"Now Section 91, head 12, The Constitution Act, 1867, gives the Federal Government legislative authority for the sea coast and inland fisheries. In Northwest Falling Contractors Limited and The Queen the Supreme Court of Canada reaffirmed the federal legislative power of Section 91 head 12 is aimed at the protection and preservation of fisheries. Mr. Justice Martlyn, speaking for the unanimous court, stated that the power to control and regulate resources must include the authority to protect all those creatures which form part of the system."

Since Justice Woodrow found that "there was a harmful alteration of the fish habitat" the court had, despite provincial authorization, "no other alternative but to impose a finding of guilt." He also ordered, "to allay further concerns that the town may be unaware of its responsibilities concerning the Fisheries Act", that the town aldermen be educated by Federal fisheries officials as to their legal obligations. A more severe fine than the $00 imposed would have been awarded by Justice Woodrow had the town been aware of the Fisheries Act regulations at the time it committed its offence.

It was the testimony of two witnesses before the Tribunal that costs for the destruction of fish habitat under Section 35(2) of the Fisheries Act are borne by those seeking the approval. One, Mr. Malhiot, who has been a professional biologist with the Ministry of Natural Resources, indicated that it was his experience that the applicant always pays the costs of compensation for the destruction of fish habitat. Ron Bennett, Area Supervisor to the Ministry of Natural Resources, testified that agreeing to the town's request for compensation would be an unprecedented payment for compliance with an environmental regulation.

It was the opinion of the Engineer, Mr. McBride, that work on municipal drains to improve fish habitat, although commonly done, and as Mr. Malhiot pointed out, recommended in a video prepared jointly by OMAFRA and MNR, there is no statutory obligation to proceed in such a fashion. The Engineer did not, however, produce any evidence to challenge Mr. Malhiot' s observations that the Warwick Drain is protected as fish habitat under the Fisheries Act.

Irrespective of the merits of the proposed Drainage Works, and the sufficiency of the proposed alternative of fencing suggested at one time by the Ministry of Natural Resources, the procedures of the Drainage Act, and the Fisheries Act are quite separate and should not be muddied by the Tribunal awarding expenses incurred in the pursuit of other forums. For the Tribunal to attempt to award costs for the lobbying for the destruction of fish habitat under the Fisheries Act, and then to pay for the compensatory measures once it is authorized, is ultra vires, as an usurpation of decision-making reserved for the federal government. Likewise, the Tribunal should respect any arrangements between parties intended to implement the compensation requirements for the destruction of fish habitat required under the Fisheries Act.