The Town of Smiths Falls has a Land Acknowledgement that is read when official municipal business is being conducted. The Town acknowledges that the “sacred land” on which Smiths Falls is now located is “unceded territory” and that the Town is grateful to the “Algonquin ancestors who cared for the land and water” and “mindful of broken covenants and the need to reconcile with our relations.” The acknowledgement ends with a vision that “together we may care for this land and each other.”
These words opened a January 25, 2022, Property Standards Appeals Committee hearing in Smiths Falls, convened to consider whether or not Beth and Craig Sinclair were violating the Town’s “property standards” bylaw with their habitat garden. The Sinclairs had been ordered to remove the habitat logs they’d placed in the yard for wildlife; cut down their “grass and weeds” to 20cm (no “weeds” were identified or named and no measurements taken); remove or rebuild their compost “heap” (a compost bin not a “heap”); and remove all “landscaping” within 3 metres of the curb (though, of course, “landscaping” is what pretty well everyone in the town has done with lawns right to the curb and no one else has been charged with this “violation”).
The appeals committee upheld all of these orders except for the one about the compost “heap” (bin!). Everything else had to go, said the committee making the Town’s final decision about land care on unceded territory. So much for reconciling with our relations and caring for this land and each other.
The Sinclairs naturalized garden is full of pollinator-supporting plants such as swamp milkweed. (Photo by Craigh Sinclair)
The appeals committee hearing was painful to watch, and painful to participate in. After seven minutes of testimony from the first expert witness (full disclosure, that was me), the Chair intervened and asked the witness to “cut it short” or “risk losing their attention” due to “long-winded presentations.” Following the three experts’ testimony challenging each of the Town’s asserted “violations,” the only question asked of the witnesses related to aphids on the Chair’s rose plants.
After not asking the expert witnesses any probing or relevant questions, the Chair then displayed a staggering confusion about his role in this quasi-judicial hearing. He seemed unaware that the committee’s legally mandated task was to listen to the evidence before it, weigh the evidence, and make a decision. Instead, the Chair offered his own “evidence,” not in the context of questioning the expert witnesses, but, well, just ‘cause. His expertise? He’d “worked at a garden centre full-time for five years” and done research “on the Internet.”
The Chair kept repeating that the Committee was not “empowered to interpret the bylaw,” yet saw no contradiction in saying that one phrase in the bylaw (“waste” as applied to habitat logs) “was defined very loosely in the bylaw and it gave us scope to go beyond what was written.”
Likewise, the Chair repeatedly asserted the Committee’s powerlessness to come to any conclusion other than to affirm the violations. Indeed, the Chair declared the Sinclairs guilty just past the half-way mark in the hearing. There were references in the expert testimony—including that of urban planner and policy expert Nina-Marie Lister—to the bylaw’s provision for dismissal of infractions deemed to be “minor,” but the committee did not use this provision.
(Photo by Craig Sinclair)
The Committee also had the legislated power to defer a decision. When one of the committee members asked the Town Clerk for her opinion on the matter (surely a wildly inappropriate question), the Town Clerk highlighted the fact that the Town Council had already expressed its intention to revise the bylaw and that any decision could be deferred by the Committee until after such a review had taken place. The Committee declined to defer.
And so the Sinclairs were ordered to remove their habitat logs (despite expert testimony presenting the recommendations of 10 wildlife organizations urging the addition of habitat logs to gardens); cut undefined and unidentified weeds and grass to 20 cm; and remove all “landscaping” within 3 metres of the curb (and presumably leave bare soil).
(Photo by Craig Sinclair)
The backlash against the Committee’s decision was swift, loud and virtually universal—the hearing was a farce. A farce with damaging consequences. Damaging to efforts to care for the land and each other. Damaging to the Town’s stated goals of supporting habitat and trees. Damaging to the Town’s reputation.
There’s one thing I agree with those committee members about: there’s nothing “minor” about what the Sinclairs are doing. Instead, the Sinclairs are responding to the twin major threats of climate change and biodiversity loss by following a call to action you’ll hear from every expert you could ask: they are restoring habitat and native plants to the landscape, nurturing biodiversity for the future of the planet.
The only option available to the Sinclairs to keep their habitat garden is to appeal the Town’s decision in court, and that is what they are doing.
And so, for the third time, an Ontario court will have a naturalized garden on the docket. Why this is even necessary is hard to comprehend. Ontario courts have already been clear: vague and arbitrary references to “weeds” based on aesthetics render such bylaws unenforceable (the Sandy Bell case); gardeners have the constitutional right to natural gardens (the Sandy Bell case), including on municipal easements (the Douglas Counter case), subject only to limitations based on public health and safety (the Douglas Counter case).
Despite the Ontario court rulings, municipalities throughout Ontario continue to have such vague and unconstitutional bylaws on their books and enforce them illegally. Will people such as the Sinclairs need to go to court over and over again to defend their legal plantings? What will it take?
Leadership is what it will take. Residents such as the Sinclairs can continue to fight these bylaws, at great personal cost, one bad bylaw at a time. But where are elected representatives across the country in proactively reforming municipal bylaws in support of biodiversity and to conform to the court decisions on these issues? Where are organizations such as the Federation of Canadian Municipalities, Association of Municipalities of Ontario, Canadian Institute of Planners, Ontario Professional Planners Institute, Canadian Society of Landscape Architects, Ontario Association of Landscape Architects, etc., in advocating for change?
We’re in the midst of a biodiversity crisis and climate emergency and these bad bylaws are major impediments to getting us to where we need to be: with habitat plantings flourishing anywhere and everywhere. How many people are not creating naturalized landscapes out of fear that they, too, will be harassed and fined?
As long as people such as the SInclairs are forced to fight for the already-court-confirmed right to “natural gardens,” we will be stuck in a quagmire of anti-ecological, aesthetically based, subjectively interpreted, colonial, retrogressive “property standards/grass and weeds” bylaws.
Smiths Falls is in the township of Montague, which bills itself as the “Wildflower Capital of Ontario.”
And the Land Acknowledgement will no doubt continue to be uttered at the beginning of Council meetings, even as the Town has forced two people caring for the land on unceded territory to go to court.
To support the Sinclairs in their legal challenge, visit: https://smallchangefund.ca/project/safeguarding-the-right-of-canadians-to-have-naturalized-gardens/
