Overview
In Ontario, the primary production of food and fibre is tied to farmland. Ontario’s level of food production is tied to the capacity of farm property and the restrictions imposed on farming activities. A number of provincial statutes, policies and programs effect how farmers carry out their day-to-day day activities.
In a March 2015 survey, OFA members identified farmland rental conditions imposed by landlords on farmland they rent. Approximately 75% of OFA members surveyed said that if they owned their currently rented farmland, they would make additional productivity improvement investments to the farmland. The need for an investment in tile drainage was frequently noted.
Click here to view results of the March 2015 farmland rental survey
OFA Position
OFA continues to support and assist OFA members dealing with farm property issues including, but not limited to, abandoned railway rights-of-way, trespassing, line fences, drainage, and on-farm oil & gas wells.
Among the sub issues OFA has chosen to address here are;
- Abandoned Railway Rights-of-Way
- Trespass and Occupiers’ Liability
- Line Fences
- Drainage
- On-Farm Oil & Gas Wells
Abandoned Railway Rights-of-Way
Over time, Canadian railways have chosen to end rail transportation on portions of their network of rail lines. In many cases, once the decision has been made to end use of a rail line, the railway company then elects to abandon the rail line. In some cases, the tracks and adjoining lands making up a rail line are sold to another railway company. When the tracks and subsequent lands go unwanted, the tracks are removed, and the lands sold.
For farmers, fencing of these former or abandoned railway rights-of-way is a critical issue. In addition, if these lands are then used as a recreational trail, that incurs added impacts on day-to-day farming activities.
Ontario’s Line Fences Act assigns special fencing obligations on non-abutting property owners who acquire abandoned railway rights-of-way that pass-through farms. The non-abutting owners (municipalities, conservation authorities, etc.) of these former rail lines are 100% responsible for the costs associated with building and maintaining the fences where the adjoining lands are farmlands.
For more information, read OFA’s document on Rails-to-Trails Concerns and Line Fences fact sheet.
Trespass and Occupiers’ Liability
Anyone entering private property without legal authority or the permission of the occupier may be found guilty of an offence under the Trespass to Property Act. The burden of proof that permission was given is on the accused. “Occupier” means anyone in legal possession of land; legal owner or tenant. Places subject to the Act include land, water and buildings, including portable structures.
The Trespass to Property Act, and its companion, the Occupiers’ Liability Act, were enacted in 1980 to protect the rights of occupiers, while allowing them to control activities on their property.
Occupiers can use signs to show which activities they wish to allow. When choosing signs, be sure that the sign reflects your true wishes. Signs prohibiting one activity only refer to that activity; not to any other unnamed activities. For example, a “No Fishing” sign only prohibits fishing; not hiking or hunting. To prohibit all activities, use a “No Trespassing” sign. The use of signs does not affect your right to subsequently give individuals permission to use your land.
Signs used to prohibit or restrict entry to property must conform to the Act. They can show your wishes through symbols or words. All signs must be clearly visible in daylight and placed at every normal point of access to the property.
For more information, read OFA’s Trespass and Occupiers’ Liability fact sheet.
Line Fences
Line fences mark the boundary between abutting properties. While section 3 of the Line Fences Act (the Act) gives landowners the right to construct and maintain line fences, it does not force landowners to build fences to mark the boundaries of their property.
The Line Fences Act never makes reference to livestock. Other statutes, such as the Municipal Act and the Pounds Act, as well as common law, impose a duty on farmers with livestock to ensure their animals do not stray and damage neighbouring property, including crops.
When adjoining landowners cannot agree how to share the construction, repair or maintenance of their line fence, and one landowner still wants a fence built or repaired, the one needing the fence can turn to the dispute resolution process in the Act. One party begins the process by contacting their municipal clerk, asking for the Fence-Viewers.
For more information, read OFA’s Line Fences and the Law in Ontario fact sheet.
For additional information on the Line Fences Act, read the Ministry of Municipal Affairs and Housing’s Guide to the Line Fences Act.
Additional resources include OFA’s document on Rails-to-Trails Concerns, Abandoned Railway Rights-of-Way and the Line Fences and Highways fact sheet.
Drainage
The Drainage Act establishes the process for one or more landowners to obtain an outlet for drainage waters, through the construction of a municipal drain. The ability to safely remove excess waters from one’s fields enables farmers to achieve higher crop yields while also reducing rutting and soil compaction.
Municipal drains are communal projects, benefiting and paid for by those farmers and rural property owners whose lands are served by the drain. Farmers and rural property owners petition their municipality for a drain. Their municipality appoints an engineer who meets with the landowners to learn their drainage needs. The engineer then develops plans to address the drainage needs, including a schedule to assign initial construction costs, as well as future maintenance, to the benefiting landowners. For lands assessed as “agricultural” for property tax purpose, OMAFRA provides grants to offset some of the costs of construction and future maintenance; ⅓ in Southern Ontario and ⅔ in Northern Ontario.
For municipalities with at least 1 municipal drain, OMAFRA provides a grant to offset some of the municipality’s costs in employing a Drainage Superintendent. The Drainage Superintendent is the municipal “manager” of the municipal drains, responsible for ensuring that they’re keep in a good state of repair. Farmers noticing problems with a municipal drain must contact the Drainage Superintendent. Individual landowners are not authorized to undertake any maintenance or repair work on a municipal drain.
Ontario has two other drainage-related statutes, the Tile Drainage Act and the Agricultural Tile Drainage Act.
The Tile Drainage Act provides fixed rate loans to farmers, through their local municipality, for on-farm tile drainage works. The Agricultural Tile Drainage Act licenses the tile drainage contractors, their employees and their tiling equipment.
For more information, visit OMAFRA’s drainage webpage.
Fish Habitat and Drain Maintenance
Municipal drains, constructed under Ontario’s Drainage Act, have legal status. One consequence of that “legal status” is that the municipality is responsible for ensuring that necessary maintenance and repairs to drains are done by the municipality.
Municipal drains are generally open ditches or buried pipes, constructed to improve the drainage of agricultural land by providing a safe outlet for field tiles. Waters collected and carried in municipal drains eventually discharge into rivers, streams, etc. Herein lies the basis for considering municipal drains as fish habitat. The federal Fisheries Act defines fish habitat as, “spawning grounds and any other areas, including nursery, rearing, food supply and migration areas, on which fish depend directly or indirectly in order to carry out their life processes.” Therefore, municipal drains are fish habitat, making them subject to the Act’s fish habitat protection provisions.
In addition, section 28 of Ontario’s Conservation Authorities Act empowers CAs to prohibit or regulate “interfering in any way with the existing channel of a creek, stream or watercourse” along with regulating development which includes “the temporary or permanent placing, dumping or removal of any material”. It’s a common drain maintenance practice to remove soil from the drain bottom or sides, and place it on the bank.
To enable municipalities to fulfill their legal obligations to maintain and repair municipal drains, while also complying with the relevant provisions of the Fisheries Act and /or the Conservation Authorities Act, drainage stakeholders have developed a number of tools.
Municipal drains have been classified based on flow (permanent or intermittent), water temperature (warm, cool or cold) and sensitive fish species present. There are 6 classes; A, B, C, D, E and F. Type F drains are intermittent, meaning they dry up for more than 2 consecutive months. Maintenance on these is the easiest; wait until its dry, do the necessary maintenance, control downstream soil movement and stabilize any disturbed banks. Types D and E have permanent flow and sensitive fish species. Maintenance on these drains requires a specific authorization from the Department of Fisheries and Oceans. For type A, B or C drains, some routine maintenance activities, brushing side slopes, cleaning the bottom of the drain or debris removal are sanctioned.
DART Protocol
The Drainage Act and Section 28 [Conservation Authorities Act] Regulations Team (DART) was formed in 2008 under a directive from the Ministry of Natural Resources and the Ministry Agriculture, Food and Rural Affairs to propose solutions to the legal liability issues facing municipalities and conservation authorities arising from conflicting provisions in the Drainage Act and the Conservation Authorities Act.
DART representatives include MNRF, OMAFRA, Conservation Ontario, conservation authorities, Drainage Superintendents, Drainage Engineers, ROMA and OFA.
Under the Drainage Act, municipalities have a statutory obligation to repair and maintain municipal drains, in accordance with their original design specifications. These design specifications are found in the Engineer’s Report, which was adopted by municipal by-law, giving the drain its legal status.
Section 28 of the Conservation Authorities Act gives CAs regulatory powers over activities adjacent to watercourses (including drains) and to require permits for these works.
DART developed a series of Standard Compliance Requirements for the following common maintenance and repair activities, which act as stand-alone permissions;
- brushing of bank slope
- brushing of top of bank
- debris removal and beaver dam removal
- spot cleanout
- culvert replacement
- bank repair or stabilization and pipe outlet repair
- dyke maintenance and repair
- water control structure maintenance and repair
- pump station maintenance and repair
- bottom only cleanout
- bottom cleanout plus one bank slope
- full cleanout
The following Standard Compliance Requirements apply within regulated wetland limits (for cases where permits are not required);
- bottom only cleanout
- bottom cleanout plus one side slope
- full cleanout
For more information, read the DART protocol document here.
For additional resources:
Department of Fisheries and Oceans: http://www.dfo-mpo.gc.ca/pnw-ppe/index-eng.html
OMAFRA (drainage): http://www.omafra.gov.on.ca/english/landuse/drainage.htm
On-Farm Oil & Gas Wells
Many people in Ontario are surprised to learn that Ontario has an oil and gas sector. In fact, the North American petroleum industry has its beginnings in Lambton County in 1858. Since then, as many as 50,000 oil and gas wells may have been drilled in Ontario. Another little-known aspect of the petroleum industry in Ontario is that some farmers and rural property owners have their private gas well, or wells, which provide them with natural gas.
Under Ontario’s Oil, Gas and Salt Resources Act, rural property owners can operate a “private gas well” to provide gas to heat their home, barn, shop, etc.
OFA supports the right of rural property owners to operate a “private gas well” and further believes these private gas wells should not in any way compromise public health, safety or environmental standards.
A number of private wells were initially drilled and operated as commercial gas wells, and were subsequently sold to the land owners where they were located when they ceased to produce commercially-viable amounts of natural gas.
OFA believes that the siting requirements for these wells should be based on those in effect when the well was drilled. Ontario farmers with a private gas well should be able to use and access the gas produced from their well or wells, in any way they chose; e.g. to heat one’s greenhouse, shop, livestock/poultry barn or to fuel a non-commercial grain dryer in addition to domestic household use.
Since 2012, the Ministry of Natural Resources and Forestry has offered an incentive program to owners of private gas wells, to upgrade their private well, or fund the plugging of wells no longer being used.
For more information:
Oil, Gas and Salt Resources Act: https://www.ontario.ca/laws/statute/90p12
Regulation 245/97: https://www.ontario.ca/laws/regulation/970245
NNRF Private Gas Well Incentive Program: https://www.ontario.ca/page/private-gas-well-incentive-program