Natural Garden Mowed Down by City of Burlington, Ontario

On June 20, 2023, the City of Burlington, Ontario, mowed down a natural garden that Karen Barnes had been cultivating for more than a decade—a garden that was free of any provincially designated Noxious Weeds and that posed no threats to public health or safety. The City flagrantly disregarded the two Ontario Court decisions (Sandy Bell case and Douglas Counter case) that have affirmed the constitutionally protected right to a natural garden in yards and boulevards, subject only to restrictions for public health or safety.

In an Order to Comply dated Nov. 2, 2022, the City ordered Karen Barnes to cut down (to 20cm) the “New England Aster, White Panicle Aster, milk weed and golden rod” (specifically named in the Order) that she had been nurturing in her front and side garden—each one a native plant, each a valuable pollinator plant, none of them Noxious Weeds.

Native asters, goldenrods and milkweeds were among the plants growing in Karen Barnes’ garden in the autumn of 2022. The plants did not impede sight lines for drivers or pedestrians, and small fences prevented plants from flopping onto the sidewalk or driveway. (Photo courtesy of Karen Barnes)

After the garden was mowed down by the City of Burlington on June 20, 2023. (Photo by Lorraine Johnson)

Prior to the recent (June 20, 2023) destruction of the garden, Karen Barnes and I met with a bylaw official, on November 27, 2022, at the garden to discuss the plants Karen was cultivating and the maintenance practices she was following. My report on this meeting and the features of this natural garden, prepared for lawyer David Donnelly (who has represented and supported many natural gardeners), can be read here:

At no point during the site visit did the bylaw official point out any prohibited plants or health and/or safety concerns in the garden. His focus was entirely on aesthetics (something already ruled by the Courts as subjective and arbitrary, and therefore unenforceable). He didn’t accept the clear signs of maintenance and deliberate cultivation that were pointed out to him.

It’s important to note that Burlington’s Lot Maintenance Bylaw has long been a problem. In 2018, another Burlington gardener, Doreen Nicoll, was ordered to cut down her milkweed plants. (Read my article about this in the link below.)

The ensuing uproar led the City of Burlington to revise its bylaw. A new bylaw was passed in 2022 that specifically allows “naturalized areas” that are “deliberately planted or cultivated with one of more species of wild flowers, shrubs, annuals, perennials, ornamental grasses, or combinations [of] them, that is monitored and maintained by a person,” a definition that clearly applies to Karen Barnes’ garden. Yet it was under this new bylaw that enforcement action was taken against her natural garden on June 20, 2023.

The exemption in Burlington’s 2022 Lot Maintenance Bylaw allows for naturalized areas.

Karen Barnes’ natural garden clearly falls within the “naturalized area” definition in Burlington’s Lot Maintenance Bylaw. Karen has deliberately planted or cultivated the plants growing and she monitors and maintains them.

Not only is the enforcement action taken against Karen Barnes’ garden outrageous, but the new bylaw is littered with anti-ecological provisions that are, quite simply, indefensible and counter to environmental well-being and human reconciliation with the natural world of which we are a part. Just a few examples:

• Leaves are labelled “waste or refuse” in the bylaw and must be removed from the front yard if the leaves are visible from the street. (Leaves, of course, have great ecological value as protective mulch and habitat for pollinators.)

• All properties must be maintained “free from any nests of bees,” which means that successfully providing nesting habitat for the roughly 70% of native bee species that are ground-nesting and the roughly 30% of native bee species that nest in spent plant stems, logs, etc., is illegal in Burlington!

• All properties must be maintained “free from any insects.” Seriously?!

This is the “new and improved” (?!) Lot Maintenance Bylaw in Burlington, in 2023?!

Karen Barnes’ natural garden after being mowed down by the City of Burlington, June 20, 2023. (Photo by Lorraine Johnson)

Details on how to support Karen Barnes’ constitutionally protected right to a natural garden will be forthcoming in another post, but for now, consider what the Bylaw Official said to Karen as her deliberately cultivated natural garden was being mowed to the ground by City workers: “Have you seen the whole street out front, all the houses? With lawns that are maintained just like everybody else? You have to do that.”

No, City of Burlington, she does not.

Invitation to the book launch for A Garden for the Rusty-Patched Bumblebee

A Naturalized Garden Goes to Court...

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/

"Ghost Plants"

While working on a new book and deciding which native plants to profile, I was confronted with one of the frustrating ironies of native plant gardening: numerous species of native plants currently not available for sale at nurseries would be grown by gardeners if they were commercially available, but nurseries aren’t growing them due, in part, to a perceived lack of demand!

It’s more complicated than that, for sure--especially the economics of growing native woodland plants that might take years before they are mature enough for nurseries to sell…

But I’ve started to think of these native species as “ghost plants.” They are memories that haunt me, spirits of what could be!

In the book Sheila Colla and I have coming out this spring, we included a list (rather than profiles) of some of these plants with a challenge to gardeners: ask for them at nurseries, urge nurseries to propagate them and to ethically source local seed, in order to expand the availability of diverse species that will grow our gardens as biodiverse habitats of ecological functioning.

Below are a few of the (Ontario) native plants that are very difficult (if not impossible) to find for sale at nurseries, but that would be fabulous additions to gardens and, I’m sure, snapped up by gardeners if they were commercially available. (I’ll be profiling these species in more detail in future posts and also adding to this list. As well, a future post will be about some of the specialty native plant nurseries that sell hard-to-find species.)

NATIVE WILDLFLOWERS:

Hooked agrimony (Agrimonia gryposepala)

Canada garlic (Allium canadense)

White camas (Anticlea elegans)

Cream-flowered rock cress, a.k.a. slender rock cress (Arabis pycnocarpa var. pycnocarpa)

Green dragon (Arisaema dracontium)

Hairy wood mint (Blephilia hirsuta)

Strawberry-bite (Blitum capitatum)

Wild hyacinth (Camassia scilloides)

Purple cress (Cardamine douglassi)

Rock harlequin (Capnoides sempervirens)

Harbinger-of-spring (Erigenia bulbosa)

White trout lily (Erythronium albidum)

Slender fragrant goldenrod (Euthamia caroliniana)

Wild licorice (Galium circaezans)

Stiff gentian (Gentianella quinquefolia)

Fringed gentian (Gentianopsis crinita)

Wild licorice (Glycyrrhiza lepidota)

Appendaged waterleaf (Hydrophyllum appendiculatum)

Eastern yellow stargrass (Hypoxis hirsuta)

Dwarf lake iris (Iris lacustris)

Wood nettle (Laportea canadensis)

Seedbox (Ludwigia alternifolia)

Winged loosestrife (Lythrum alatum)

Three-leaved Solomon’s seal (Maianthemum trifolium)

Biennial gaura (Oenothera gaura)

Yellow wood-sorrel (Oxalis stricta)

Ditch stonecrop (Penthorum sedoides)

Virginia smartweed (Persicaria vriginiana)

Dwarf Canadian primrose (Primula mistassinica)

Lizard’s tail (Saururus cernuus)

Yellow pimpernel (Taenidia integerrima)

Rue anemone (Thalictrum thalictroides)

Painted trillium (Trillium undulatum)

White vervain (Verbena urticifolia)

NATIVE SHRUBS:

Eastern burning bush (Euonymus atropurpureus)

Smooth blackberry (Rubus canadensis)

NATIVE GRASSES:

Poverty oat grass (Danthonia spicata)

Tufted lovegrass (Eragrostis pectinacea var. pectinacean)

Purple lovegrass (Eragrostis spectabilis)