Draft bylaw ‘leaves questions unanswered’

The Draft by-law to regulate the destruction or injury of trees in woodlands has been revised by Dufferin’s Museum and Archives and Heritage Lands Board committees and the legal firm of Cassels Brock and Blackwell LLP. This latest version leaves many questions unanswered.

The revisions eliminated a general exemption of farmers found in Section 2 of the Draft By-law. They have also included a definition of a farmer as someone with a registration number under the Farm Registration and Farm Organization Act 1993 which, in effect, means an owner who generates annual farm sales of $7,000 or rents their land to a farmer who does. Landowners who have a forestry plan prepared by a recognized forestry consultant should receive equivalent treatment.

The by-law’s definitions include the concept of Normal Farm Practice. This is defined as, “a practice conducted in a manner consistent with proper and acceptable customs and standards established and followed by similar agricultural operations under similar circumstances or uses innovative technology in a proper manner”. There is no explanation of what the farm practices are which apply to woodlots. It is not obvious why this definition is included when it is named but not described.

Two major issues remain to be resolved. Section 3(j) allows owners who use any trees cut for their own use, privileges not available to those who sell even a very few trees. Section 3 lists the activities which are exempted from the by-law. Included are those persons and activities excluded under the Ontario Municipal Act 2001, SO 2003. Lands licensed for a pit or quarry under the Aggregate Resources Act and land on which a pit or quarry is a permitted land use under Section 34 of the Planning Act are not covered by this by-law.

The by-law now includes exemptions not in the Municipal Act. It allows the clearing of all or part of a woodlot for Agricultural Use if the County Forest Manager is notified, the clearing is carried out in accordance with Normal Farm Practices, the farmer has owned the land for three years and the land is put into Agricultural Use within three years.

Section 3(j) allows an individual who has owned a property for two years to cut trees provided: they advise the County Forest Manager in advance; do not reduce the number of trees per hectare below those necessary to constitute a woodlot; and if and only if the trees are for the Owner’s Own Use.

The by-law continues to differentiate how landowners will be treated depending upon what use the trees are put to after they are harvested. A landowner may harvest trees without a permit if they are for personal use but must have a permit if they are sold.

It is difficult to understand why personal use is allowed while sales are not. Once a tree is cut or as the province likes to call destroyed or injured, it makes absolutely no difference to the remaining woodlot by whom the saw logs or firewood is used.

This distinction appears to violate the Canadian Charter of Rights and Freedoms by treating individuals differently on the basis of how they use their property.

The onus is on the government, in this case, the Dufferin County Council, to justify why this regulation is reasonable and justified in terms of the public good. This distinction, which discriminates against people who do not burn firewood, should be removed. Few landowners, especially those of older ages, utilize wood heating.

Requiring individuals who are making commercial sales to post a permit is another unnecessary requirement. By the time a consultant or the owner has marked the trees to be sold and the County Forester has given permission, there is no point in putting up a sign indicating that trees have been sold. This action will only encourage people who have no investment in the woodlot to raise objections. A landowner can sell any other crop or asset without such public notification. It will also encourage trespassing.

The revised by-law has removed the permit fee schedule so it can be more easily amended. Landowners should be informed of the proposed fee rates prior to approval of the by-law. The fine for conviction of contravention of the by-law is not less than $500 and may range up to $10,000. A multiple offense can go beyond $100,000. Failure to comply with an order has a similar fine per day. Ideally, a conservation by-law should encourage landowners to plant, manage and harvest woodlands. Huge fines do not help achieve these goals.

This by-law has undergone considerable review but it still does not treat all landowners fairly or equally.

Jim White