An Ontario history lesson through the lens of drainage and drainage law.
July 4, 2023 By Mel Luymes
The more I get to learn about drainage contracting in other parts of the world, the more I wonder how we have such a different system here in Ontario. As many readers will know, our drainage contractors need provincial licenses, for our tile drainage machine operators, our machines, and our businesses. And the industry is going strong with incredible farmer demand for drainage, pipe manufacturers working hard to keep up to the demand and plow technology that is ever improving with Bron, Wolfe and Tait here in Ontario.
But this didn’t come from nowhere. To wrap our heads around this, I think we need to go back about 200 years
Well before Canadian Confederation in 1867, drainage laws had been instituted in Upper Canada (later called Ontario) that encouraged farmers to work together across their properties to dig open channels to drain land for agriculture. Under British ‘common law’ there is no right of surface water drainage unless the property is adjacent to a natural watercourse. So, some of the earliest statute laws in Upper Canada created ways for landowners to acquire rights to drainage.
In 1835, the Act to Regulate Ditches and Watercourses allowed drains to be constructed by all the neighbours involved and it had some teeth. If anyone did not dig or maintain their section of the ditch, they could be sued for the costs of a neighbour to do it. In 1859, another statute law allowed for municipalities (most local bodies of government) to take on the role of design and construction, creating public drains that many still call ‘municipals’ to this day. The province began financial support of these drains in the 1860s and currently support one third of the share of the cost of engineering, construction, and maintenance (two thirds cost-sharing in Northern Ontario) for land that is assessed for agriculture.
In 1963, several previous statutes were put into one act, the Drainage Act. It has nearly 200 years of experience and well over 200 revisions that make it a powerful and practical piece of legislation. This Act has real strength, with the power to expropriate corridors for drainage, even moving utilities.
In 1878, the Ontario Tile Drainage Act began to offer loans directly to farmers to install subsurface drainage, up to 75 percent of the project, administered through the municipalities. This tile loan program is still intact today and is now also conditional on hiring a licensed drainage contractor (unless the landowner completes the work themselves). The licensing program for businesses, operators and machines was implemented in 1972 under the Agricultural Tile Drainage Installation Act and requires contractors to report all the work they do in their annual business renewal. As much of a hassle as it might be for contractors, it gives us all great information to better understand drainage trends.
And we continue to have a great relationship with our regulators, the Ontario Ministry of Agriculture, Food and Rural Affairs (OMAFRA). Both the Ministry and the Ontario Agriculture College have offered continued support to the drainage industry since the beginning with demonstration days, drainage courses and the Drainage Guide for Ontario.
I thought that everywhere else would have a similar drainage story as us, until I started poking around and got a sense that drainage law unfolded differently in Quebec, New York, Ohio, Minnesota or Saskatchewan. Driving around, we can see how laws impact our landscapes.
And when legislation is vague, it is open to interpretation and can often lead to costly litigation. How many Ohio courts are arguing over whether a farmer or contractor’s drainage work can be considered ‘reasonable’ or not? Without hard-won clarity, the law becomes a weapon for individuals on a power-trip, instead of a tool for improving farmland.
No matter where your province or state’s drainage legislation sits, I think we all need to be contributing our on-the-ground experience to our politicians and legislators. We are seeing increased pressure to reduce nitrogen and phosphorus losses from agricultural land, and there are powerful lobbying organizations that have the ear of the government but don’t understand the need for farm drainage in the first place. In North Dakota, Ellingson Drainage made a smart move and hired a lobbyist – they know that to have effective drainage, you first need effective drainage laws.
Farm drainage is not only critical for food production in many areas of the world, but also a best practice for reducing soil erosion and nitrous oxide emissions, and it provides an opportunity to filter out nitrates and dissolved phosphorus as well. I think that drainage water recycling will be crucial for adapting to a changing climate. But we can’t have conservation drainage if we don’t even have drainage!
Ontario’s Drainage Act was last updated in 2021 and will likely be updated again. Under Section 78, it already includes provisions for municipalities to improve drains with ‘green infrastructure’ like erosion control berms, grassed waterways, two-stage ditches, etc. that reduce nutrient loss and can be protected and maintained long-term within municipal by-laws.
Just like a watercourse itself, Ontario’s drainage legislation is an achievement that has been ever evolving, the result of hundreds of years of conflicts and experience. And we still have work to do. DC
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