Niagara farm family's four-year battle with their conservation authority grinds on
Tuesday, October 2, 2012
When the White family's farm was regularly flooded, they responded by putting up low berms to stop the damage, only to be charged by the Niagara Peninsula Conservation Authority. A justice of the peace upheld the charges but said the family's treatment was 'egregious in nature.' The dispute is far from over
by DON STONEMAN
In 2008, when heavy machine operator David White pushed dirt around parts of his elderly parents' farm property that were susceptible to flooding and erosion, he broke the law, a justice of the peace ruled last October.
He also broke a related law when he put hay bales and pipes into a watercourse in July of 2009, this to hold back what he said was urine coming from a nearby property where Niagara Regional Police kept their patrol horses.
In a sentencing report, justice of the peace Moira A. Moses wrote: "Members of the public must not be allowed to take matters into their own hands or to operate outside of the law using non-compliance as a tool for resolving legal disputes."
However, Moses found White and his elderly mother either innocent of other charges or stayed them, while describing the treatment of the farm family by the Niagara Peninsula Conservation Authority (NPCA) as "egregious in nature." Moses referred to "the unusual and mitigating circumstances heard at trial" and David White received a suspended sentence, rather than the $3,000 to $5,000 fine and rehabilitation order sought by the conservation authority. (David White says that, at one point, the Conservation Authority's lawyer sought a $10,000 fine and 90 days in jail.)
"From the perspective of the Whites and also from the court's perspective, what happened to them was egregious in nature," said the Oct. 31 reasons for decision.
"The White family wished only to retire to a life of farming on a property to which they pay taxes to farm. Their dream was partially interrupted by an unexpected or an accelerated evolution that may not have been entirely driven by natural consequences.
"The complaints of David White lend themselves to the question asking whether the consequences suffered by the Whites are the natural result of a floodplain or a wet land designation or whether they are the result of excessive use of rights by government and/or government negligence through inaction or something else entirely."
White's lawyer, Terrance Green from Ottawa, is appealing the conviction. Green is the third lawyer White has engaged since before charges were laid against him.
Prosecutor Michael Kyne, director of legal services for Niagara Region, is appealing the sentence. The NPCA did not respond to several requests for an interview. According to numerous documents and interviews with David White, the court case is just the most recent chapter in a years-long dispute he and his elderly parents have had with local municipal and conservation authorities because the land where they could grow cash crops until 2005 now floods regularly.
The Whites own two farm properties totalling nearly 24 acres on the north side of Willow Road where George and Catherine White, once prominent local sheep farmers, had retired in 1980. They pay farmland rate taxes to the City of Niagara Falls. People living on the south side of Willow Road live in the Town of Fort Erie, which owns the road and ditches.
Until 2005, when flooding began and acres were seeded to grass, the White farm grew cash crops. Their son, David White, says drainage patterns changed when nearby Netherby Road in Fort Erie was widened. Flood waters run from Fort Erie across the White farm into the adjacent Willoughby Marsh, which is under the NCPA's jurisdiction. A residents' petition for Niagara Falls to take over the road and the ditches failed in 2006. That year, White also attempted to petition Fort Erie, where the flood water comes from, under the Drainage Act, but the Fort Erie Clerk told him in writing that he should petition the City of Niagara Falls, because that is where he lives.
In a Feb. 5, 2008, letter to the local council, White complained that flooding in August of 2006 put four acres of the farm under water.
"Our way of life changed dramatically," he wrote. "The Niagara Region is forcing uncontrollable amounts of water across our farm and the Niagara region police are polluting the water and the Niagara Conservation Authority is impeding the flow, which is trapping our farm in the middle."
The judge, in her reasons for decision issued last October, wrote that White should have asked the Drainage Act Tribunal or the Drainage Referee for a resolution. But the Conservation Authority could have done better as well.
According to the judgment, neither the NPCA nor the Ministry of Natural Resources notified affected property owners when boundaries for wetlands were changed in 2007.
The judgment paraphrases an unnamed "expert witness" who said that, likely for cost saving reasons, the NPCA did not do a mailing to those affected by the study. Nor was a there a mail out three months before David White's 2008 offense, when changes to the floodplain that affected property owners came into effect.
On June 14, White invited municipal and conservation authority officials to view low berms he had built to contain flooding and prevent erosion on his parent's property. NPCA officials didn't like what they saw and charged David White and George and Catherine White with violating regulation 155/06 of the Conservation Authorities Act in November.
According to the reasons for judgment given by the justice of the peace, Tim MacGillivray, then the regulations officer for the NPCA, was concerned about the effect on the nearby Willoughby Marsh. The farm property also contained a few concrete blocks, along with "football" sized pieces of asphalt, because George White had brought in some fill to the property. The justice described the amount of debris as "relatively minimal." In testimony, David White described it as about two wheelbarrows full.
The judge also noted that on July 29, 2009, White put "straw and pipes" into the watercourse without getting permission from the NPCA. Niagara Regional police were keeping their patrol horses on a parcel of land next door and White said there was excessive urine in the waterway. The pipes, he said, were to form a bridge so that he and others could keep their feet dry.
But White had been warned before, the JP said. The judge found him guilty of interfering with a watercourse without permission.
Justice of the peace Moses, however, threw out some charges because, from various conflicting testimonies from "experts and non-experts", as well as mapping and aerial photos as far back as 1932, she could not determine if the watercourse met the legal definition of a stream.
Numerous studies referred to by expert witnesses during the trial were often in conflict. Moses ruled that some maps used by the conservation authority didn't meet standards for the Ontario Evidence Act because they were "hypothetical in nature."
Charges were eventually dropped against David's mother, Catherine White, an owner of the farm, who is in her eighties, because Moses determined that she didn't make decisions on the farm. David White's father George, also in his eighties, died before the trial date in February, 2010, with the charges still hanging over his head.
The justice of the peace dismissed the charge of interfering with an existing channel of a river, stream or watercourse. After hearing conflicting testimony, Moses was unable to determine if the watercourse running through the White property met the definition of a stream under the Act.
The case appears to be far from over for White, whose lawyer is appealing the conviction. The NPCA's director of legal services, Michael Kyne, who prosecuted the case, is appealing White's April 2 sentencing.
Last October, the justice of the peace made some recommendations to local authorities as to how to deal with property owners in the area. "I strongly suggest to (the NPCA) that they consider working together with all municipalities and with the Region to develop a comprehensive and proactive public education plan that would go a long way to preempt non-compliance. This approach is especially important when landowners are perceived to be difficult to deal with. In fact, in those cases it is almost essential."
In the sentencing report, issued six months later, the JP wrote: "Despite the Court's encouragement for collective dialogue and re-evaluation, it appears that the problematic collateral issues that also affect the NPCA's relationship with David White have remained unresolved." BF
The charges against the Whites
According to court documents, the Whites "dressed" the sides of the watercourse and built low berms with heavy machinery. David White and his parents George and Catherine White were charged with:
1) Undertaking or permitting developments without authorization in a river or stream contrary to s. 2(1) (b) of the Conservation Authorities Act.
Resolution: The prosecution was unable to prove that a "stream" ran across the White property. The charge was dismissed.
2) Undertaking or permitting development without authorization of hazardous lands contrary to s. 2 (1) (c)
Resolution: The above charge against David White was stayed.
3) Interfering with an existing channel of a river, stream or watercourse, all of them contrary to s. 28 Conservation Authorities Act Reg 155/06 on June 14, 2008.
Resolution: David White was convicted.
The prosecution withdrew the charges against Catherine White because she did not make decisions on the farm. George White died before trial and the charges were withdrawn.
In 2009, David White put either straw or hay into the watercourse (both terms were used in the documents) along with two pipes.
White was singly charged with
1) undertaking development without authorization in a river or stream contrary to s. 2(b) and
2) Without permission interfering with a watercourse, contrary to s. 5. on July 28, 2009.
Resolution: David White was found innocent on the first charge because the prosecution was unable to prove that a stream ran across the White property. He was convicted on the second charge. BF