The Manitoba Ombudsman says the provincial environment department essentially broke the law when it allowed non-residents of Canada to build a home and other amenities on significant coastal wetland south of Gimli, and also failed to enforce the law when the non-residents and/or their developer showed a pattern of behaviour whereby they carried out repeated unauthorized works to develop more acres than those originally agreed upon by the province and excavated a channel in the wetlands for boat access to Lake Winnipeg.
The non-residents and/or their developer filled in a total of 2.25 acres of wetland and dug up an estimated 100-metre-long channel, according to the Ombudsman.
The Ombudsman released a report titled “Ombudsman Act Investigation Report, Manitoba Environment and Climate Change, [Case] MO-01516” in September, referencing a period of about six years that began in 2014 when the filling in of the coastal wetland on Lake Winnipeg was noticed by area residents.
A non-profit group called The People for the Preservation of the Willow Island Coastal Wetland (P4P) had been established pre-pandemic in response to the destruction of the wetland, and it documented development activities on the property (NW 33-18-4E), which is adjacent to the eastern boundary of the Siglavik subdivision and at the east end of Sunrise Drive.
At that time, the property was owned by a Swiss national, Ruth Rutz and/or her family, whom the Ombudsman refers to as “Y” and as “non-residents of Canada.” The Express asked the Rural Municipality of Gimli to verify the current ownership of the property, but it said it was “not permitted.”
P4P had raised several concerns with the province, the municipality and other organizations regarding the development. The group then submitted its concerns to the Ombudsman after the province failed to stop the filling in and the digging up of the wetland.
A spokesperson for P4P said the group is troubled by the Ombudsman’s conclusion that Manitoba environment and climate change – formerly known as Manitoba conservation and water stewardship then as sustainable development – failed to follow provincial legislation, was administratively unfair and failed to take enforcement measures against repeated unauthorized works by the property owner and/or their developer.
“[This is] deeply concerning, particularly as the problem stems from the bureaucrats who either don’t understand the law(s) or choose to ignore it for any number of reasons, [such as] incompetence, political interference or simple corruption,” said Jeff Smith, who lives in Siglavik. “The fact this report took five-plus years to investigate and report is a good indication of the seriousness of the matter.”
Under the Ombudsman Act, the Manitoba Ombudsman investigates the actions and decisions made by government departments and agencies, municipalities, and their officers and employees. This can include Crown corporations, boards and commissions, local government planning districts, watershed districts and regional health authorities. The Ombudsman is an independent office of the Legislative Assembly of Manitoba and is not part of any government department or agency.
The Ombudsman investigated two major areas of concern, according to the 23-page report on the wetland development. The first issue pertains to whether the provincial department’s decision to approve the development complied with legislation, process and policy. The second issue pertains to whether the department met oversight and enforcement requirements regarding the development, which is part of the Willow Island-Netley Marsh complex that has been identified as a provincially significant coastal wetland.
As the property was deemed to have been low-lying at 715 feet above sea level, development of the property for a single-family dwelling required fill material (717 feet is required). That commenced in summer of 2014 without a “building permit or water rights license” and the department sent Y [Rutz] a stop work order in June, says the report.
Y’s developer applied for a water rights licence in July 2014 to fill in the property, and the department denied the request in September (verbally) and again in November (letter) of that year. As part of its review, the department noted the property was a flood risk, a “designated provincially significant wetland” that could not be replaced or replicated should it be destroyed, and that filling it in went against “all recommendations in the Willow Creek Integrated Watershed Management Plan.”
Y [Rutz] then submitted a letter to the department and the Manitoba Municipal Board in December 2014 asking for an appeal extension, but did not pursue it. Following that letter, the Ombudsman says there were a “series of communications between Y’s legal counsel and the director for the department. Communications included eight emails which reference several phone calls as well as a meeting on July 16, 2015. This meeting was held in-person at the offices of Y’s lawyer. It is unclear who attended as there are no notes or minutes.”
The department then reversed its decision in 2016, giving Rutz the green light to develop the property. The province did not, however, issue a water rights licence – only an “approval letter” that was contrary to proper process.
“On January 12, 2016, after a number of conversations between the department and the property owners’ lawyer throughout 2015, the department reversed its 2014 decision,” said the Ombudsman. “The approval letter states that the department’s primary position is to deny development of any sort at this location given the ecological importance of the area, as well as the flood prone nature of the property. This being said, it is willing to consider a single one time development of a portion of the property provided the development is limited to the single lot in question.”
The department had written at that time that the general area (Siglavik, Miklavik) had been used for dyke construction in 2005 and that there was a “possibility” and “probability” that diking activity had affected the elevation of the [Rutz] property. The Ombudsman states, however, that it’s “not clear how the department arrived at this conclusion or specifically what kind of investigation was done or how it was carried out. No records or reports were provided to our office.”
The Ombudsman goes on to say it’s “unclear” how the development was permitted to be built closer to the water than both the Provincial Planning Regulation and the Watershed Management Plan stipulate, that the approval letter served as a “substitute” for a water rights licence, and that parties who were informed of the department’s denial in 2014 were not informed of its reversed decision in 2016.
With the 2016 approval letter, the Rutz property was raised with infill material, and in 2019 the RM of Gimli approved a lot grade application, a storage garage variance and a minor variance for a storage garage. In 2020 the municipality approved a permit for a new residence and attached garage.
In summing up the department’s decision to approve the development, the Ombudsman states the department was “inconsistent” with the law and that standard process had been replaced by “private discussions.”
“There is little in the way of an explanation as to why the normal process was not followed, particularly given the sensitivity of the development. The director who signed off on the approval letter is retired and no longer with the department. Current staff acknowledged to our office that the process followed in this case was unusual. They indicated that typically a party whose application is denied would either file an appeal to the Municipal Board or submit a revised application. Instead that process was replaced with a series of private discussions between the department’s director and the developer,” states the Ombudsman. “…. As such our review finds that [the] department’s change of decision did not follow the standard process and was inconsistent with law and policy and thus, administratively unfair.”
With regard to meeting its oversight and enforcement requirements when alerted by “a number of citizen complaints” to unauthorized works being carried out by the owner and/or developer at the site, the Ombudsman says the department acted appropriately in 2014 when it stopped the unauthorized infill of the wetland.
But after that the department failed to take action even when its staff “determined the project was well beyond the scope of the original plan” that had been approved in January 2016.
“While the initial ‘approval’ had been for 0.5 acres, an additional area of approximately 1 acre of coastal wetland had been filled without approval and ‘the proponent was attempting to further landscape the area by conducting channel excavation within the coastal wetland [and] … appeared to be in the initial stages of developing a marina,’” states the Ombudsman. “We note the development of a marina requires approvals under the Environment Act.”
Y’s developer also told the department that the plans “had always included” a pond south of the building site, a boat dock and a boat channel connecting to the main Siglavik channel.
In June 2018 a departmental visit to the Rutz property resulted in no enforcement action and “verbal” permission to continue development activities.
“With respect to this incident, department staff determined that unauthorized works had occurred in that the development had exceeded the prior approval by filling additional coastal wetland and excavation of a coastal wetland,” said the Ombudsman. “However, it is unclear as to why no enforcement measures were applied in response to the unauthorized works.”
The Ombudsman added that it was “unable to determine how the department made its decisions” in 2018 and why it “did not provide” written enforcement directives or any “written confirmation” that the work could continue.
It was determined that by March 2019, Y and/or the developer had carried out additional unauthorized works, including adding fill to another 0.75 acres and digging a channel “approximately 100 meters long, 8 meters wide and 4 meters deep.”
“This is an addition to the previous unauthorized attempt to excavate a channel connecting a pond to the Siglavik channel and developing a marina/boat dock,” said the Ombudsman. Although the department issued an enforcement notice to stop the work “until further written approval,” it’s unclear whether the department “ensured that the other requirements were met: address unauthorized excavation of substantial channel through coastal wetland.”
“Four years later [since the 2016 approval], 2.25 acres had been filled and landscaped and a channel approximately 100 meters long by 8 meters wide excavated to allow for docking and boating access to the Siglavik channel,” said the Ombudsman. “The department, over the course of five years, repeatedly communicated verbally and in writing with the developer and Y about the limits and expectations for the development. In spite of this, the developer continued to disregard these expectations. The department responded with revised directives, not always in writing. It is unclear why, despite the variety of enforcement measures available, the department did not apply these tools in response to these behaviour patterns.”
The Ombudsman makes three recommendations: the department adhere to defined legislation and have a framework for “discretionary actions or decisions,” ensure future wetland development is “consistent with watershed management plans,” and that it develop “guidance for its staff” regarding data, documentation and records.
The Express asked environment and climate change how it explains this failure to follow process, whether there was interference at the political level regarding the Rutz development, why the department failed to enforce the law and issue fines to the owner/developer, and how the department will ensure it follows Manitoba law in future.
A spokesperson for the department said that other than this particular wetland development, no other instance has been identified where approval was provided in the way it was.
“The modernization of The Water Rights Act and Regulation, as well as related policies, and the move to the online Water Licensing Portal has enhanced the province’s ability to ensure drainage decisions are properly documented while enhancing protection for Manitoba’s wetlands,” said the spokesperson. “The province reviewed the Ombudsman’s findings and has acknowledged proper process was not followed in the case of this development. The department has taken action to address the gaps that led to this incident, and no other instance has been identified where approval was provided in this fashion.”
Smith said they have “no faith” that the Ombudsman’s verdict will protect Manitobans in future from government that’s willing to break rules, and that the people who allowed this development to happen should be taken to task.
“There should be repercussions for the individuals that allowed this and similar projects to proceed – and I don’t mean at the lower clerical levels. We know that deputy ministers and assistant deputy ministers were involved with this particular project and either chose to look the other way or felt that the law was not important enough to enforce. We know this because we met with an assistant deputy minister (Cordella Friesen) on Jan. 7, 2020, and she did nothing,” said Smith. “Tracy Schmidt [current provincial NDP environment minister] is the first minister who has actually engaged with us on a face-to-face basis … and we did impress on the minister that she was responsible for the actions of the bureaucracy working for her and that we expected her to act accordingly.”
Smith said the 100-metre channel dug out of the wetlands has been extended by an additional 65 feet or so into the Siglavik channel with – as far as P4P is aware – no license or permits having been issued, and that a floating dock has been added to the channel.
“My question is what [premier] Wab Kinew is going to do to support the [Ombudsman’s] findings and recommendations. At the very least there needs to be a process implemented that ensures all stakeholders are able to review plans that will impact on the environment (key stakeholders for the Rutz project were excluded from the development process),” said Smith. “There’s also a need to coordinate and integrate the legal provisions of all affected legislation when considering projects that require government approval / licensing. Finally, Watershed Management Plans must be given teeth. Currently, at best they’re guidelines [and] at worst they’re a ‘feel-good document’ that allows politicians to say ‘they’re doing something’ for the environment even though that something is quite meaningless.”
Their big push now is to have the government “abide by and enforce the legislation and regulations” that exist to protect the lake, he said.
To that end, he said P4P is keeping an eye on a proposed Hutterite Colony development in the RM of Armstrong, just across the Armstong-Gimli municipal border. The development is situated at the head of Willow Creek, which will have human effluent and animal slaughter byproducts emptied into it annually from a two-cell wastewater lagoon on the site. That material will flow east to Lake Winnipeg.
“We have opposed this development but have heard nothing in a year,” said Smith.
