Silent Spring: Ongoing Legal Wrangling’s Over Agricultural Pesticide Use

It’s been 52 years since Rachel Carson documented the detrimental effects of pesticides on the environment in her book, Silent Spring. Many positive steps have been taken by countries, states and municipalities around the world, but pesticide use continues to be an ongoing issue. In just the last couple of months, it has been widely written about by EcoJustice, here, West Coast Environmental Law, here, and the David Suzuki Foundation, here. The list goes on, and applies to bees, fish, human health and a myriad of other complaints.

These issues also continue to play themselves out in court. In Nauss v Waalderbos and Viking Crest Farm Ltd., a decision just released by the Supreme Court of Nova Scotia, the court had to consider two competing applications regarding the continuation of the plaintiffs’ claim.

First, some background. The plaintiffs reside at their organic farm in Shinimicas, Nova Scotia. The defendants farmed the field across the road. The plaintiffs alleged that on May 15, 2007 the defendant sprayed his lands with herbicide which drifted (the “herbicidal drift” or “herbicidal overspray”) on to their property causing Mrs. Nauss significant health issues, damaging their crops and allegedly leading to four of their horses miscarrying. In addition, the plaintiffs alleged that the defendants’ ditching activities led to contaminated run-off.

Instead of bringing their concerns to the Farm Practices Board (the “Board”), under the Farm Practices Act, S.N.S. 2000, c.3 (the “Act”), and despite the fact that the Nova Scotia Department of Environment advised the plaintiffs that they could approach the Board, the plaintiffs instead commenced legal proceedings in court. When the defendants learned of this, they successfully applied to have the plaintiffs’ claim stayed (put on hold) on the basis that they should first pursue their claim through the Board.

The legislative framework in the Act provides:

10(1) …no person shall

(a) commence a civil action in nuisance, negligence or otherwise, for any odour, noise, dust, vibration, light, smoke or other disturbance resulting from an agricultural operation; …

but that section does not apply:

10(2) …

(a) to an agricultural operation that is found by the Board not to comply with normal farm practices. (my emphasis)

In granting the stay, the court found that no civil action could be pursued unless the Board first determined that the defendants’ actions were not in compliance with normal farm practices. The Order, staying the action, contained the following provision:

“…after considering the … application, should the Farm Practices Board find that the    defendants’ alleged conduct falls under s.10(2) of the Farm Practices Act, the stay            granted herein is immediately lifted.

After bringing their concerns to the Board, the Board dismissed the plaintiffs’ complaints. It found that the defendants’ spraying activity was in accordance with normal farm practice and that there was insufficient evidence, on a balance of probabilities, that the spray had caused the alleged damage. Though the plaintiffs appealed the Board’s decision, this was also dismissed.

Following the exhaustion of the Board process, the plaintiffs returned to the Court to ask that the stay be lifted and the civil action be allowed to proceed. In a cross-application, the defendants asked that the stay be lifted and the claim be dismissed.

In part, the plaintiffs argued that, despite the Board’s finding, it had made a decision which was beyond the scope of the Board’s mandate. Essentially, the plaintiffs argued that because the Board did not have jurisdiction to address every issue in their claim, they should not be prohibited from their civil action by s.10(1) of the Act.

As expected, however, the Court reasoned that, while the Board did not have jurisdiction to address the issue of damages, the damages issue would only be adjudicated after a determination had been made on the issue of liability.

One important issue that arose is that, until this case, no Canadian court had settled the issue of whether a “herbicidal drift” (the drift of herbicides from one property to another) constituted an “other disturbance” as defined in right-to-farm legislation across the country. The Court could find no authority on this issue and determined, absent contrary authority, that a “herbicidal drift”, “herbicidal overspray” or “contaminated run-off from ditching” are, in fact, “other disturbances”.

Ultimately, the Court struck the plaintiffs’ claims finding that the defendants’ actions were in compliance with normal farming practices and, as such, civil action was prohibited under the Act. The applicable standard of care for agricultural operations in this case was that of “normal farm practice”.

If you are caught up in the overspray of pesticides and suffer damages as a result, if the actions of the “sprayer” were in the course of normal farm practice, you may very well be prohibited by your local right-to-farm legislation from seeking damages as a result. In Alberta, the relevant provision is contained in the Agricultural Operation Practices Act, RSA 2000, c. A-7, which provides:

Application re disturbance

3(1) A person who is aggrieved by, or an owner or operator who is aware that a person is aggrieved by, any odour, noise, dust, smoke or other disturbance resulting from an     agricultural operation may apply in writing to the Minister to request consideration of whether the disturbance results from a generally accepted agricultural practice.

(2) An application under subsection (1) must be in writing and must contain a statement of the nature of the disturbance, the name and address of the applicant, the location of the agricultural operation, the name and address of the owner or operator, if known, the name and address of the person who is aggrieved and the steps taken by the applicant, if any, to resolve the disturbance.

(3) The parties to an application are the applicant, the owner or operator or the person aggrieved and any other person the Minister considers appropriate.

(4) A person shall not commence an action in nuisance for any odour, noise, dust, smoke or other disturbance resulting from an agricultural operation unless an application has been made under this section with respect to the disturbance at least 90 working days previously.

There appears to have been no judicial consideration of this section in Alberta, at present. I expect that, following an application by an aggrieved party, if the Board determines that the actions of the sprayer constituted a “generally accepted agricultural practice”, the chances of getting past the liability stage of adjudication in a civil matter are small.

James Early