Recently some Ontarians received a press release from a provincial MPP expressing their support for a new Act called Bill 36 the "Respecting Private Property Act," an Act to amend the provincial Trespass to Property Act. Also expressed in the press release was that the vice-president of the OFA was supportive of this Act and that he endorsed it. There is one problem with the new Act and even the Trespass to Property Act
Firstly, we are not "occupiers" of our property; we are owners, so it would seem that the provincial Trespass to Property Act is (i) only applicable to public property, and (ii) is not applicable to private property unless one has a lease with government.
Secondly, increasing fines for provincial property is an option for the province, but when it comes to private property one can look to Small Claims Court for compensation, when damage is done to private property, where one can sue for up to $25,000.00. Basically all this act is doing is allowing someone who is a leaseholder of public land to charge someone and it allows the province to charge larger fines for someone who trespasses on provincial property.
Thirdly, we already have a Property and Civil Rights Act, which still stands in Ontario, and is based on the Constitution of 1792. It expresses that all actions in the courts are to be based on evidence, testimony and legal proof and that in the courts, the courts are to use Common Law as the law regarding property, particularly between the people and the government.
The Constitution of 1792, states (part of our present constitution) under the "intent"
of the Legislators, there can be no interference, by any level of government, with any
private lands, tenements, hereditaments, encumbrances, mortgages, or two party contracts.
(See sections 2, 3, 5, etc.,) Where the Act says that "resort shall be had to the laws of England as they stood…" in 1792, it is quite clear that there can be no third party interference with private property, land or individual's estates, by government. As explained in the Federal Interpretations Act section 8.1 and 8.2 (property and civil rights) that it is the common law terminology which had been used and still prevails. In section 9 it states that a private Act cannot affect the rights of another person. It is also under the Federal government that any contracts between 2 entities must not violate the Criminal Code of Canada.
As a farmer, you may be wondering how this affects you. The Conservation Authorities (C.A.), and the Municipalities were created with private Acts. The C.A.s, in the legislation, section 3 (4), are "a body corporate", and the only jurisdiction they have is on public property, and only after a municipality has passed a by-law, or when someone has entered into an agreement either under section 21 of the C.A. Act, or has granted an easement or covenant under the Conservation Lands Act, section 3. (2); anything else is an expropriation. This does not grant anyone the right to pollute the water, and that is covered under Common Law.
With regards to the Municipalities, unless the Municipalities have acquired the asset, meaning property, they are unable to exercise their authority under the Municipal Act or any other Act, and therefore have no jurisdiction over private property. Everything is in the legislation that is needed to protect private property. Unfortunately no one is reading the legislation, in its entirety. With Ontario having so many pieces of legislation, created by people who know so little about our laws, we continue to sink further and further into the black whole of duplication and misinterpretation. Perhaps the promoter of this new Act (Bill 36 the "Respecting Private Property Act."), might have their staff look into this, and perhaps everyone should take a step back before passing any new legislation. We don't need any more new laws; we just need the courts to respect the law that is already there.