Peter Archer

Crop farmer wins big

Conservation Authority calls 10 acres of dry land “wetland” and loses in court

Patrick Meagher
Farmers Forum

BELLEVILLE — A Campbellford crop farmer and grain elevator operator has won a victory for landowners in a battle to keep the tentacles of the local conservation authority away from farm land.

Peter Archer, of Maizeing Acres, was not impressed when Lower Trent River Conservation Authority designated 10 acres of his land as wetlands four years ago. Archer’s troubles began when Conservation Authority officers watched him clearing dead trees from his land.

Archer had no idea that anyone thought he was clearing wetland. How could he? The land was dry. The conservation authority hadn’t told him the land was a wetland and didn’t bother to tell him until he had almost finished clearing the land. More importantly, the land wasn’t even officially designated as a wetland.

After telling Archer to stop clearing the land, conservation authority officers executed a search warrant to test the soil and examine the land to get their designation. They also took photos of the land when there were pools of water on it but Archer argued the photos were taken after eight days of 56.5 mm of rainfall.

After four years of court delays, four days of hearing evidence and one day of closing arguments, Justice of the Peace and former Ontario Minister of Agriculture Leona Dombrowsky, ruled that Archer was not guilty on eight charges, mostly focusing on developing wetland, on Oct. 30 in Belleville provincial court.

Archer’s lawyer, Jacob Damstra (of Lerners LLP in London), told the court that Archer was clearing dry land and that ash borer had killed the trees. He added that Archer retained an agrologist, biologist and arborist who completed a multi-faceted assessment and concluded, “You could never turn it into a wetland because of all the drainage around it.”

“This is an important decision to the agriculture community,” Damstra said, noting that it provides some judicial guidance and interpretation on the proper application of the words “wetland” and “development” in the Conservation Act. “It makes clear that development does not include activities that farmers would normally undertake like cultivation or the discing of soil.”

He noted that “the area had never been classified or designated as a wetland” and the conservation authority couldn’t do it because it couldn’t meet the four tests of a wetland. In layman terms, a wetland must include these factors: Be land that is seasonally or permanently covered by shallow water or the water table is close to its surface; the land directly contributes to the watershed, has hydric soils and water-loving vegetation that requires a lot of water.

“This is a case of the conservation authority sticking its nose in farming practice,” said Ontario Landowners’ Association president Jeff Bougarts. “Conservation Authorities have been expanding their powers into areas that we believe are not their responsibility. One of them is to interfere in normal farm practice, telling farmers where they can grow crops; where they can’t grow crops; whether they can cut down trees.”

Northumberland Federation of Agriculture member Brian Crews said he has followed the case and credited Justice of the Peace Dombrowsky who was “absolutely attentive” and really wanted to understand the details of the case.

The judgment was important but was not a big win for the farm community,” Crews said. “But if it had gone the other way it would have been a big loss to the farm community.”

He added that there is nothing precedent-setting in the case to prevent a conservation authority from going after another farm in the same way.