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									Re: The Ian Smith Memo and the fate of Compensation Policy in the Raisin-South Nation Source
    Protection Terms Of Reference draft document

                                                           I would like to comment on the developing situation
                                                           regarding the role of compensation throughout the
                                                           implementation process of the Clean Water Act in the
                                                           Raisin-South Nation Source Protection Region, and
                                                           across Ontario. A Compensation Model has been
                                                           proposed as an effective tool for fair and equitable
                                                           conflict resolution wherever private property (land, equity,
                                                           income) may be negatively impacted by the Act.
                                                           Feedback from the MOE has been requested by Source
                                                           Protection Committee Chairs and Regional Project
                                                           Managers, and that feedback is a definitive NO (Ian
                                                           Smith Memo, 14 May, 2008 – Appendix 1).

                                                           On August 15, 2007, when I stood for election to this
                                                           position, along with 12 other candidates, I described my
                                                           sentiments and farm practices favouring soil & water
                                                           conservation, as well as the devastating million-dollar
                                                           land devaluation that my family has suffered since our
                                                           land was designated as Conservation zoning in our
                                                           Municipal Official Plan. I made a promise to my
                                                           agricultural community that I would do everything in my
                                                           power to prevent the same injustice from happening again,
                                                           under the Clean Water Act (Appendix 2).
                                                      Our SP Region has a dedicated website at
                                             where my 100-word
autobiography reiterates these sentiments and intentions:
I’m a farmer from Bainsville, happily married to Tara (McDonell) and we have three young sons. I obtained a B.Sc.
degree from Guelph University in 1994. On our farm, tillage, crop rotation, drainage, fertility and pest control systems
are developed with soil and water quality as a primary objective.
I am a conservative-minded free-enterprise advocate with a deep commitment to our landscape, the people who own it,
and our Canadian values of freedom, justice, and ethical, democratic governance. In addition to water quality trends, I am
concerned about trends in legislation and land-use planning policies that negatively impact rural people, our livelihoods,
                                                           and our land equity.

                                                           During my service as an ag rep member of the RSNSPC, I
                                                           have not deviated from my clear and concise ambitions,
                                                           and I have enthusiastically co-authored the Compensation
                                                           Model to remind SPC members, governments and citizens,
                                                           of the need to establish fair and equitable conflict
                                                           resolution strategies to facilitate implementation of the
                                                           Clean Water Act in our region. The Compensation Model
                                                           also underscores the reality that impacted private
                                                           landowners are not criminals; they are regular law-
                                                           abiding citizens, going about their business of
contributing goods and services to their respective communities and tax dollars to Municipal, Provincial and
Federal governments. They’re nice folks just like you and me. And they own land. They’ve probably invested
and reinvested sweat equity into their land such that multiple generations of diligent hard work has grown their
land-based equity and they’ve come to enjoy the well-earned sense of financial security that property
ownership provides. The Clean Water Act threatens these people, way down deep in their hearts and minds, so
that they may start to wonder if a lifetime of labour was all for nothing… When their fellow citizens and their
elected legislature collectively express a will to take or intrude upon their freedom, their livelihood, and their
rights to their property, without a fair and just process to ensure adequate and commensurate financial
restitution, these fine folks will surely despair. Thomas Jefferson said “…when the people fear the government,
there is tyranny.”

                                                                    Why am I so adamant that my friends and neighbours will
                                                                    suffer injustice upon implementation of the Clean Water
                                                                    Act unless we tailor it to address these issues? How can
                                                                    this happen in our country of Canada, where liberty,
                                                                    justice, human rights, and due process of law, have been
                                                                    the bread and butter upon which we were raised? The
                                                                    answer is found in Section 98 of the Clean Water Act and
                                                                    in the Ian Smith memo:
                                                                    Section 98 – Limitations on remedies
                                                                    (1) No cause of action arises as a direct or indirect result of,
                                                                    (a) the enactment or repeal of any provision of this Act;
                                                                    (b) the making or revocation of any provision of the regulations made
under this Act;
(c) anything done or not done by a source protection committee, source protection authority, municipality or local board, by a minister,
ministry, board, commission or agency of the Government of Ontario, or by the Director, in accordance with Part I, II or III; or
(d) anything done or not done by a risk management official under section 56. 2006, c. 22, s. 98 (1).

No remedy
(2) No costs, compensation or damages are owing or payable to any person and no remedy, including but not limited to a
remedy in contract, restitution, tort or trust, is available to any person in connection with anything referred to in clause (1) (a), (b), (c)
or (d). 2006, c. 22, s. 98 (2).
Proceedings barred
(3) No proceeding, including but not limited to any proceeding in contract, restitution, tort or trust, that is directly or indirectly
based on or related to anything referred to in clause (1) (a), (b), (c) or (d) may be brought or maintained against any person. 2006, c. 22,
s. 98 (3).
(4) Subsection (3) applies regardless of whether the cause of action on which the proceeding is purportedly based arose before or after
that subsection comes into force. 2006, c. 22, s. 98 (4).
Proceedings set aside
(5) Any proceeding referred to in subsection (3) commenced before the day that subsection comes into force shall be deemed to have
been dismissed, without costs, on the day that subsection comes into force. 2006, c. 22, s. 98 (5).
No expropriation or injurious affection
(6) Nothing done or not done in accordance with this Act or the regulations, other than an expropriation under section 92,
constitutes an expropriation or injurious affection for the purposes of the Expropriations Act or otherwise at law. 2006,
c. 22, s. 98 (6).
Person defined
(7) In this section, “person” includes, but is not limited to, the Crown and its employees and agents, members of the
Executive Council, and source protection authorities, source protection committees, municipalities, municipal
planning authorities and planning boards and their employees and agents . 2006, c. 22, s. 98 (7).
                                                          In summary, there will be NO official recognition of
                                                          “injurious affection” and NO compensation for anyone
                                                          thus affected. These provisions tell us that the draftees
                                                          (and presumably the Legislature) understood the potential
                                                          economic impacts of the Act and anticipated the
                                                          possibility, nay the certainty, of litigious backlash.
                                                          Sections 98 and 99 were drafted to ensure legal immunity,
for the government, from responsibility. These heinous provisions make the Crown and all of us within this
process unaccountable. Our draft Terms of Reference document contains Section 4.1 with a subheading
entitled accountability, but the truth is in the details of the Act – there is to be no accountability – and there is
to be no justice for victims of “injurious affection”.

                                                         This willful intent to deny restitution to affected citizens
                                                         transgresses the United Nations’ Universal Declaration of
                                                         Human Rights: Article 17 as well as the Canadian Bill of
                                                         Rights: Section 1 (a) & (b). Compensation/restitution for
                                                         any unfortunate financial side-effects that may result from
                                                         this legislation is not an unreasonable expectation; it is
                                                         what we, the people, anticipate from responsible
                                                         If one respects the principles of our nation’s founding
                                                         religions, one might refer for guidance to such Bible
                                                         quotes as “Do unto others as you would have them do
                                                         unto you” (Luke 6:13) and “Thou shalt not covet thy
                                                         neighbour’s {property}” (Exodus 20:17 & Deuteronomy
How often must we repeat the cycle of misery brought about by despotic, unaccountable or unrepentant
governments? Many have committed their lives, in defiance of their own safety, to speak for the abused:
Mahatma Ghandi (1869-1948) - “One needs to be slow to form convictions, but once formed they must be defended
against the heaviest odds.”

Martin Luther King Jr. (1929-1968):
             "Cowardice asks the question - is it safe?
             Expediency asks the question - is it politic?
             Vanity asks the question - is it popular?
             But conscience asks the question - is it right?
             And there comes a time when one must take a position that is neither safe,
             nor politic, nor popular but one must take it because it is right."

                                                         The memo from Mr. Ian Smith was intended to dissuade
                                                         us from taking a position that is right. Although I am
                                                         loath to suggest that this presentation might compare to
                                                         the legendary oratory of these great men, I have,
                                                         nonetheless, aspired to do as they have done, in my own
                                                         small way, and speak for my people, agricultural and rural
                                                         people, to secure justice for them within a political system
that has been deliberately designed to exclude them from access to justice.
Our legislative process is considered by many to be a simple matter of satisfying the will of the majority, and
the expediency of their desires. However, political will cannot be exercised in the absence of justice for a
minority or even a single, solitary innocent individual. A gang of street thugs who collectively decide to knock
down an old lady and take her purse for their collective benefit is representative of a form of majority rule. No
decent person would recognize this as indicative of a just society, and therefore no one should recognize
Section 98 of the Clean Water Act as being indicative of a just society. “However insignificant the minority,
and however trifling the proposed trespass against their rights, no such trespass is permissible.” (Herbert
Spencer: The Right To Ignore The State).

                                                      My people require access to a process that will analyze
                                                      their losses and deliver commensurate restitution to them.
                                                      Section 97 (The Ontario Drinking Water Stewardship
                                                      Program) is grossly inadequate to the task. It may (or
                                                      may not) provide but a small token of recompense, and it
                                                      will not go far, and there are meager limits, and there are
                                                      strings attached, and some of the funds will be
                                                      misappropriated, and it will only last for a brief period of
                                                      time. It has no process for analyzing the permanent
                                                      “injurious affection” imposed upon hapless citizens, let
                                                      alone establishing equitable reciprocity.

We, the RSNSPC, have been appointed to establish
region-specific policy that will benefit our communities.
The agricultural sector has not expressed any reservations
about participating in a process that seeks to protect
drinking water, but our position on this matter is crystal
clear – like clean water. Wherever this Act may threaten
the financial security of a citizen of our region, we will
promise to analyze and measure that injury and also to
repair that injury. The fact that Ian Smith of the Ministry
of the Environment does not wish us to do this, is of no
consequence to me. His memo and Section 98, quite
frankly, are offensive to me, and to the people I represent,
                                                        and they ought to offend every member of this committee,
                                                        and every citizen of Ontario.

                                                      In order to underscore the importance of the sanctity of
                                                      land ownership, I’m presenting these two 205-year-old
                                                      deeds to my family’s property. Please be careful with
                                                      them. I ask you to imagine what these contracts meant to
                                                      the pioneers of this region: men and women like my
                                                      ancestors, who had been dispossessed and forced to start
                                                      again with nothing. With land and freedom, they
                                                      prospered. Imagine, now, what those deeds mean to me
                                                      and other agricultural people like me. I’ve inherited the
                                                      responsibility of protecting and defending their land, their
                                                      legacy, their earnings, these deeds. There were strong
property rights attached to those contracts with the Crown. My family, the Sangster family, and thousands
more, have laboured for centuries under the belief that these contracts were sanctified by our Government,
signed, sealed and registered. The Clean Water Act is a sample of how the Crown now intends to break that
contract by converting our private property to public purpose, through statutory regulation. Furthermore, it is
doing so, via Section 98, with a shameful disregard for all rights imbued in our traditional and well-earned
ownership of fee simple land title.

                                                         I’d like to express my sincere thanks to the members of
                                                         this committee for your patience and thoughtful
                                                         consideration of this important issue. A great many
                                                         people across the Province have been impressed with and
                                                         grateful for our initiatives regarding compensation. I, for
                                                         one, will not be cowed by Mr. Smith, and I respectfully
                                                         ask my fellow Committee members to adopt the ancient
                                                         motto of the Clan MacLeod of Glengarry County and
                                                         HOLD FAST to your inborn sense of right and wrong.
                                                         Join me in making a promise to the Sangster family and
                                                         to the many other good people of our region. Let us
                                                         promise these good people that they will have access to
justice, should they require it, when our Source Protection Plan is implemented; and let that promise of
financial restitution for “injurious affection” stand proudly and clearly within Section 4 of our Terms of
Thank You.
Shawn McRae.

Ministry of                  Ministère de
the Environment              l’Environnement
Source Protection Programs   Direction des programmes de protection
Branch                       des sources
8th Floor                    8e étage
2 St. Clair Ave. West        2, avenue St. Clair Ouest
Toronto ON M4V 1L5           Toronto (Ontario) M4V 1L5

May 14, 2008

TO:      Source Protection Committee Chairs
         Source Protection Program Managers

FROM: Ian Smith, Director,
      Source Protection Programs Branch
      Drinking Water Management Division

Re: Including policies related to compensation in the Terms of Reference

A draft model outlining a mechanism to evaluate compensation options for impacts to property use as a result
of the implementation of source protection plans was prepared by the agricultural representatives of the Raisin-
South Nation Source Protection Committee and was presented to the committee at their February 29, 2008

The paper was subsequently presented and discussed at the March 26-27, 2008, training meeting of Source
Protection Committee (SPC) agricultural representatives in Barrie organized by the Ontario Farm
Environmental Coalition. As a result a number of questions regarding the purpose and intent of this document
have been raised at multiple SPC meetings. The Ministry has been requested by some SPC chairs to provide
direction or guidance on the inclusion of concepts in the draft compensation model in the terms of reference.

The following direction is being provided in response to the draft compensation document.

Section 22 of the Clean Water Act, 2006, which sets out the required contents of a source protection plan, does
not provide for the inclusion of policies related to financial compensation. The Act also states in subsection
98(6) that nothing done in accordance with the Act constitutes an expropriation or injurious affection for the
purposes of the Expropriation Act (except an expropriation under s. 92). This provision indicates that the
Legislature did not intend there to be compensation for the imposition of land use restrictions. Therefore, it
would not be appropriate to include in the terms of reference tasks related to the development of compensation
for land use restrictions.

It is important to note that the legislation establishes the Ontario Drinking Water Stewardship Program, through
which financial assistance may be provided to persons whose activities or properties are affected by the Act. In
addition, as discussed more fully below, it is anticipated that implementation costs may be a consideration in
the development of a set of criteria that will be evaluated when determining which policies to include in a
source protection plan.

We have provided some additional discussion points and information below around the role of the SPC in the
development of source protection plan policies, evaluation criteria for policies, and the role of the Ontario
Drinking Water Stewardship Fund, that you and your committees may wish to consider.
1) The SPC has a significant role in the development of the source protection plan and the decision
making process regarding which policies to include or not include in the Source Protection Plan.

SPCs have been established through a process designed to be representative of the watershed community
and their social, political and economic needs. One of the most significant roles that SPC members will be
involved in is the development of policies in the source protection plan to address significant drinking water
threats. The role of the SPC will be to inform what types of policies are included in the source protection plan –
policies involving land use restrictions may be a potential tool that source protection committees choose to use
to address significant drinking water threats in vulnerable areas.

Until the assessment report is complete and the development of the source protection plan is underway it is not
possible to definitively state that properties will be impacted by land use planning restrictions. The policies
developed may (or may not) lead to restrictions on land use as a means of addressing significant drinking water
threats. The SPC will need to consider a number of factors, including social, economic, and environmental
considerations when making decisions about which type of policy to include in a source protection plan.

However, some of the concepts provided in the draft compensation model could be applied by source
protection committees during the consultation process undertaken for the development of the source protection
plan. The Ministry anticipates that there will be a requirement for one-on-one individual meetings to reach out
directly to affected property owners in the policy development stage before it reaches the public meeting date.

The Ministry also anticipates that one of the key discussions that will be undertaken during the development of
the source protection plan regulation is consideration of which criteria will be evaluated when determining
which policies to include in a source protection plan.

It is anticipated that an important aspect of the policy development process will include the evaluation of
proposed policies in a way that will assist the community to select the most appropriate options. It is also
anticipated that provincial guidance will set out some criteria to be considered in the development of source
protection plan policies to help ensure that policies that are both effective and appropriate to the local
circumstances are created. Some of these criteria will likely directly relate to requirements that will be set in
regulation regarding the details of each policy that must be provided in the plan. Some of the criteria for
evaluation that may be recommended in guidance include:
   Compatibility with existing risk-reduction activities that may already be in place
   Implementation costs (including monitoring costs) versus outcomes (cost effectiveness of risk reduction)
   Existing programs/opportunities for cost sharing or funding (provincial or federal grant or loan)
   Time required for implementation
   Time required for risk management effects to be realized
   Life cycle of measure (i.e. some measures may have to be replaced or upgraded over time)
   For threat policies, ease of monitoring compliance and effectiveness
   Potential co-benefits derived from the policy (i.e. contributes to achievement of other local or provincial
    goals and/or management of multiple threats)

Proposed policy options may be measured against a common set of criteria to ensure that stakeholders have a
transparent and common basis for comparing the impacts, both positive and negative, that policies may
potentially have. It is important that the committee be able to demonstrate that a particular policy option was
chosen with full knowledge of the inherent trade-offs associated with the policy.

2) The Ontario Drinking Water Stewardship Program is designed to provide financial assistance to
persons whose activities or properties are affected by the Clean Water Act, 2006.
The Clean Water Act, 2006 establishes the Ontario Drinking Water Stewardship Program. The purpose of the
program is to provide financial assistance to those whose activities and properties may be affected by the
Clean Water Act, 2006, persons who administer incentive programs and education and outreach programs that
are related to source protection plans, and to other persons or bodies in prescribed circumstances that are
related to the protection of drinking water sources. The financial assistance is to be provided in accordance
with regulations made under the Clean Water Act, 2006.

The ministry has now prepared a draft regulation that sets out the proposed requirements of the Ontario
Drinking Water Stewardship Program. This regulation sets out the decision-making authority for funding
applications. It also sets out the circumstances related to the protection of drinking water sources in which
financial assistance may be provided to persons and bodies other than those whose activities and/or properties
may be affected by the Clean Water Act, 2006 and those who administer incentives or education and outreach
programs. The regulation, detailed program framework and guidance materials prepared for the program will
collectively provide an accountability framework to ensure appropriate on-going oversight of funds distributed
through the Ontario Drinking Water Stewardship Program for the protection of drinking water sources.

In advance of regulations and to ensure that activities to protect drinking water sources across the province
could begin immediately, an initial $7 million was made available for financial assistance in 2007-2008.
Another $21 million has been committed for the Ontario Drinking Water Stewardship Program, for a total of $28
million over four years.

If you have any questions regarding this letter please do not hesitate to contact me at


Ian Smith

I grew up on and currently manage an 800-acre century farm at Bainsville, in the south-east corner of
Glengarry County. I obtained a bachelor of science degree in agronomy from the University of Guelph in 1994
and I’m happily married with three young sons aged 5 years to 7 months. On our farm, short-term profitability
often takes a back seat to soil and water quality issues. Tillage management, crop rotation and other
management decisions related to drainage, fertility and pest control are systematically and holistically
developed with soil quality (and consequently, water quality) as a primary objective. Since crop health, grain
quality and yield are directly linked to soil organic matter, porosity, biodiversity and drainage, I believe that
long-term profitability for me and my descendants will follow as a natural consequence of this approach to
land management.

My interest in this committee is not only due to my avid interest in soil, water and environmental quality issues.
About 25% of my farm’s acreage has been zoned “conservation” through the municipal planning process – a
process which has been heavily influenced by the RRCA, MNR, MOE and presided over by the MMAH. Since
this land involves about 6000 feet of St. Lawrence River waterfrontage, it has resulted in a multi-million dollar
devaluation of my family’s private property and our farm’s financial equity. The Municipal Planning Act does
not provide for compensation payments to private land owners thus affected by the implementation of
restrictive land zoning during the development or amendment of a municipal official plan.

We are currently witnessing the development of source water protection committees and source protection
authorities, which will, in turn, develop and implement source protection plans. The clean water act provides
the framework for these initiatives, but alas, the draftees have again forgotten the issue of financial
compensation to property owners who will suffer loss of use and loss of land value when municipal water
interests are deemed more important than an individual property owner’s land equity and utility, during the
implementation of the source protection plan.

As an individual, I cannot demand that the legislation be revised at this point in time, but by representing
farmers and landowners on this source protection committee, I will provide valuable input regarding the
ethical treatment of individual citizens who are at risk of being victimized by this legislation.

With respect to the landscape dynamics of surface and ground water flow and the science of water quality, I
believe that reduced water quality in rivers, lakes and aquifers need not be a direct result of productive
agricultural activity. Modern agricultural technologies and products provide us with the tools to be infinitely
more productive than our forebears, while simultaneously eliminating soil degradation and erosion, water
eutrophication and other collateral damage to the environment, as has often occurred around the world
throughout human history as civilizations rose and regressed. Unfortunately, these same modern tools also
have the latent potential to degrade soil and the environment more rapidly than ever before, if used
inappropriately. Therefore, I will hold myself and fellow farmers and landowners to a high standard with
regard to soil and water management so that we may, in turn, justifiably demand the requisite respect and
consideration that has traditionally been afforded private land owners within free and democratic societies. As
a committee member, I will work diligently to ensure that the interests of farmers and rural landowners will be
well represented.

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