The current state of greenlands protection

The Central Ontario Zone consists of 17 upper-tier municipalities and 99 lower-tier municipalities, each of which is governed by an Official Plan that contains some policy direction regarding the protection and management of various aspects of the natural environment. Vast portions of the Zone fall within the either the Oak Ridges Moraine Planning Area or the Niagara Escarpment Planning Area, where many areas are fully protected from development and land use elsewhere is strictly controlled by provincial regulations.

However, the degree of protection afforded by Official Plans varies greatly, from full protection for some greenlands features to virtually no protection for others. As a general rule, the only true consistency among the Official Plans of Central Ontario municipalities located south and east of the Canadian Shield is that they give full protection to the two features of provincial interest within which development is prohibited under the PPS: Significant Wetlands and the Habitat of Threatened and Endangered Species. These are the two "sacred cows" of natural heritage from the Province's perspective and their protection is generally accepted as a given among land use planners and developers. Provincially Significant Wetlands in those portions of Simcoe County, Peterborough County, Haliburton County, and the City of Kawartha Lakes that lie on the Canadian Shield are not accorded the same level of protection under the PPS, although some are recognized as equally significant at the municipal level.

Under the federal Fisheries Act, fish habitat is accorded a higher degree of protection than that given under the PPS, and those who harm fish habitat face strict penalties in the form of fines and/or imprisonment. As a general rule, development or site alteration is prohibited from well-defined valleylands (not just those identified as "significant") by Conservation Authority flood and fill line regulations. Although this has the effect of protecting the physical form of a valley, there is no guarantee that the quality and quantity of the watercourse that occupies the valleyland will not deteriorate. Headwater areas are often most at risk because these smaller, often intermittent tributaries are not typically associated with valley features and do not always provide fish habitat. In recognition of the vulnerability of these important headwater tributaries, some Conservation Authorities and municipalities (such as the Town of Markham) have begun to develop specific policies to address the protection of these features.

The two greenlands features that have consistently "fallen through the cracks" so to speak, are Significant Woodlands and Significant Wildlife Habitat. This is because, through the PPS, the Province has given full responsibility for the identification of these features to the appropriate planning authority (such as a municipality), few of which have undertaken the studies necessary to define these resources at a local level. To my knowledge, the Regions of Ottawa-Carleton, Halton, Niagara, and Waterloo are among only a handful of upper-tier municipalities that have embarked on an ambitious initiative to define Significant Woodlands at a regional level. The Province has recently produced technical "guidelines" to assist in the identification of Significant Wildlife Habitat, but has not yet done so for Significant Woodlands. These two greenlands types remain largely unrecognized, unmapped, and thus largely unprotected throughout the Central Ontario Zone.

The majority of municipalities that have recently updated their Official Plans have, as required, brought them into conformity with the PPS. However, although the Official Plans recognize significant natural heritage features, and generally discourage development or site alteration from occurring within them, they do not grant any absolute prohibition on development. Instead, consistent with the direction provided by the PPS, development or site alteration within a prescribed distance of a significant natural heritage feature must be supported by an Environmental Impact Statement (EIS).

The ultimate test of an EIS, at least on paper, is very high: it must demonstrate that development will have "no negative impact" on the greenlands feature or its functions. Taken at their most literal meanings, the notions of "no negative impact" and "no loss of form or function" strongly suggest that a development application would be denied if the EIS clearly demonstrated that the feature or area in question would experience any measurable decrease, however small. For example, a reduction in one nesting pair of a given bird species, no matter how common, could arguably constitute a "loss." In practice, however, the test of "no loss" is often considered to be met as long as the "reduction" does not entail an absolute loss of an attribute or function. Recently, several Ontario Municipal Board decisions have upheld the argument that some loss of greenlands feature or function is acceptable and the OMB has approved development on this basis.

The outcome of an EIS is usually the approval of some form of development, with conditions attached as to specifically how and where it can occur in relation to the greenland feature. Sometimes development is permitted within the less significant or sensitive portion of the feature, but rarely is the entire feature either removed or fully protected. Most often, the EIS provides recommendations on the size of and uses permitted within a buffer between the feature and the development. The ability to mitigate environmental impacts, often through fairly elaborate, expensive, and unproven engineering, is the rationale usually provided in support of an undertaking. Rather than determining whether a proposed undertaking is environmentally acceptable or not, an EIS has increasingly become a tool for determining the type and extent of mitigation required to permit a development to proceed.

Another important issue to ponder is whether the current policy framework is doing its job with respect to greenlands protection. In many instances, the outcome of an application is that the physical feature (such as a significant wetland or a woodlot or valley) is afforded protection from development; however, its actual function becomes impaired over time. For example, recent studies in southern Ontario have shown that the composition, structure, and productivity of ground nesting and neotropical breeding bird communities inhabiting small woodlots is lower when residential units are built close to the woodlots. Other impacts include uncontrolled human access, trampling, tree removal, dumping of yard waste, and the introduction of invasive plant species, all of which contribute to the overall degradation of the feature. The effects of a major change in adjacent land use on a greenlands feature are rarely measured or monitored following construction. Despite the best efforts of developers, planners, politicians, and conservation groups, it is far from certain that its function or overall ecological integrity of a given area will be safeguarded as a result of its physical protection.