Tag Archives: municipal

Ontario’s Neonicotinoid Law Survives Appeal

In October 2015 I reported on how Ontario’s neonicotinoid law, which dramatically reduces the number of acres planted with corn and soybean seeds coated with a class of pesticides known as neonicotinoids, was to remain in place despite a challenge to that law by the Grain Farmers of Ontario (“GFO”).

As you probably know, there are strong links between neonicotinoids and bee colony collapses, and neonicotinoids are known as being toxic to bees.

In that post, I referenced the fact that the GFO was “reviewing its legal options”, and the GFO ultimately opted to appeal the Ontario Supreme Court’s decision.

Well today, I’m pleased to report that the appeal was heard, and dismissed, by the Ontario Court of Appeal (the “Court”). For a full review of the decision, just click here.

At the appeal, the GFO raised two issues. It submitted that the motion judge erred in finding that:

(1) Ontario Regulation 139/15 made under the Pesticides Act, R.S.O. 1990, c. P.11 (“the Regulation”) does not limit the farmers’ property rights; and

(2) the relief sought is not the determination of rights through the interpretation of a regulation.

In dismissing the appeal, the Court did find that the Regulation narrows the farmers’ range of legally permitted options of treated seeds, and so affects the farmers’ rights. However, the limitation of a right does not, standing alone, create a justiciable issue (an issue that can be tried in a court of law).

The GFO argued that the justiciable issue in this case was found in r. 14.05(3)(d) of the Regulation, which provides:

“(3) A proceeding may be brought by application where these rules authorize the commencement of a proceeding by application or where the relief claimed is,

(d) the determination of rights that depend on the interpretation of a deed, will, contract or other instrument, or on the interpretation of a statute, order in council, regulation or municipal by-law or resolution;”

However, the Court noted that this rule was a procedural rule, and is not a mechanism whereby a person could simply challenge the wisdom or fairness of a governmental action. The Court agreed with the reasoning of the motion judge, citing the Alberta Court of Appeal in Trang v. Alberta (Edmonton Remand Centre) which provided:

“Private litigants are not entitled to use the courts as an indirect method of altering public policy decisions, especially those involving the expenditure of public funds. Just because a private party has a sincere concern about the validity of a public policy does not entitle him or her to litigate its legality: Canadian Council of Churches v. Canada (Minister of Employment and Immigration). As a corollary, the superior courts are not to use their powers to grant generally worded declarations as a method of controlling or influencing governmental operations.”

In the result, Ontario’s neonicotinoid law remains, and its bees are safer for another day.

James Early

Calgary SDAB Quashes Inglewood Bird Sanctuary Development Permit

The Development Authority of The City of Calgary (“Development Authority”) had approved a development permit for a new community recreation facility located on a site known as the Inglewood Bird Sanctuary (“Sanctuary”). The Sanctuary is a Regional Park in Calgary’s Park system and the site id designated Major Public Open Space.

The Appellants in this matter (SDAB2015-0159 (Re), 2015 CGYSDAB 159 (CanLII)) were the Inglewood Community Association and Nature Calgary. These two organizations challenged the approval of the development permit for an ‘outdoor classroom’ on the grounds that:

(a) necessary stakeholders were not circulated and/or consulted before development permit filing; and

(b) facilities at the Bird Sanctuary may be well need to be augmented but the location and design can be considerably improved in a way that is not prejudicial to the sensitivity of the Bird Sanctuary.

In particular, the appellants contended that the location of the proposed development was in contravention of the Municipal Development Plan, the Urban Parks Master Plan, the Natural Area Management Plan, the Biodiversity Strategic Plan, and the Inglewood Bird Sanctuary Master Plan.

The Sanctuary has a Federal Migratory Bird Sanctuary designation which confers special significance that helps to protect it from potentially destructive whims of a local community. It hands the Sanctuary a wider purpose and establish it as a keystone migratory bird habitat within the patchwork of international conservation areas (Inglewood Bird Sanctuary Master Plan, page 51). In the City’s Natural Area Management Plan the Bird Sanctuary is listed as a “Special Protection Natural Area”. It is listed as having the characteristics of “high overall sensitivity, provincial/regional significance and highly productive habitat”.

The Development Authority argued that the Inglewood Bird Sanctuary Master Plan, Calgary Urban Park Master Plan and Natural Area Management Plan are not relevant to the development at hand and, therefore, outside of the Board’s jurisdiction. The Board, however, disagreed, finding that section 35(a) of the Land Use Bylaw refers to “plans and policies affecting the parcel” and, further, that this section applies to policies of statutory and non-statutory plan documents of The City of Calgary. The section is not limited solely to statutory plans.

The Board placed, what it termed, “pivotal weight” on point 4.8 of the Biophysical Impact Assessment, which states:

“4.8       Environmentally Significant Areas

The Sanctuary is within the provincial ESA # 289. This ESA includes the Bow River Valley and is of national significance as it encompasses unique landforms, observations of species of concern, important wildlife habitat, intact riparian areas and headwater streams, and large natural areas (Fiera Biological Consulting Ltd. 2009).

The Sanctuary is considered “Special Protection Natural Area” by The City of Calgary with the Natural Environment Park designation. This designation is meant to describe areas of high environmental sensitivity, including high wildlife habitat quality and primarily native vegetation (City of Calgary 1984). In particular, the balsam popular forests of the Sanctuary are of high conservation value (City of Calgary 1994). The Inglewood Bird Sanctuary is also listed as a Federal Migratory Bird Sanctuary under the Migratory Bird Sanctuary Regulations (Government of Canada 1994).

[…]

In the Board’s view this statement astutely described the importance of the “Special Protection Natural Area”. The Sanctuary was found to be an area of a high environmental sensitivity, including high wildlife habitat quality and primarily native vegetation. This was a significant factor considered by the Board.

Further, the Board was persuaded on the significance of the Sanctuary by the fact that it is protected as a Federal Migratory Bird Sanctuary under the Migratory Bird Sanctuary Regulations which, to the Board, spoke volumes about the unique status of the Sanctuary and the special environmental significance of it.

Finally, the Board cited the evidence of famed environmental educator Brian Keating, and the Canadian Parks and Wilderness Society (“CPAWS”) as corroborating that evidence, wherein Mr. Keating stated:

“The Sanctuary needs to be respected for the purpose intended: the preservation of some of the best and most diverse bird habitat within the City It is a preserve we need to protect as a sanctuary, a celebration of high-quality, critical riparian wildlife habitat. More structures will only degrade, not enhance the small treasure of Calgary”.

As a result, therefore, the Board overturned the decision of the Development Authority to approve the development permit, and declared that permit null and void.

James Early

Duty to Report / Transfer of Responsibility: Saskatchewan’s new Environmental Legislation

Saskatchewan’s Environmental Management and Protection Act, 2010 (“EMPA 2010”) came in to force on June 1, 2015 and has a couple of new features of interest to those involved in the development and transfer of real estate.

First, the EMPA 2010 contains a duty to report a “discovery”. That duty attaches to: any person who discharges or allows the discharge of a substance that may cause, or is causing, an adverse effect; any person who owns or occupies lands on which a substance is discovered; any person who, while conducting work on the lands, discovers such a substance; and any police officer or employee of a municipality or government agency who is informed of, or investigates, a discharge or discovery of a substance.

This is a significant expansion of the scope of the duty to reporter from the EMPA’s predecessor legislation.

Second, responsibility for an environmentally impacted site may now be transferred by a person responsible to another person if:

(a) the other person has agreed to accept responsibility for the environmentally impacted site;

(b) a site assessment has been conducted;

(c) a corrective action plan has been prepared;

(d) an estimate of the costs to carry out the corrective action plan has been prepared;

(e) the other person has agreed to undertake the corrective action plan within the time frame contemplated in the corrective action plan; and

(f) the other person has provided the minister with a financial assurance in the amount and in the form acceptable to the minister equal to:

(i) the anticipated costs of reclaiming the site; and

(ii) an additional contingency amount.

As a result, when land transactions are being contemplated between parties in Saskatchewan, the parties should be cognizant of these new changes, and turn their minds to both the duty to report, and to determining whether there ought to be a transfer of responsibility for any environmentally impacted site.

James Early

Right to a healthy environment for Richmond, B.C., residents

The City of Richmond, B.C., has become the second municipality in Canada (after Montreal borough of Rosemont-La Petite-Patrie) to adopt a municipal declaration of an individual’s right to live in a healthy environment. The full text of the declaration is as follows:

City of Richmond Municipal Declaration
The Right To A Healthy Environment

Whereas the City of Richmond understands that people are part of the environment, and that a healthy environment is inextricably linked to the well‐being of our community;

The City of Richmond finds and declares that:

1. All people have the right to live in a healthy environment, including:

The right to breathe clean air.

The right to drink clean water.

The right to consume safe food.

The right to access nature.

The right to know about pollutants and contaminants released into the local environment.

The right to participate in decision‐making that will affect the environment.

2. The City of Richmond has the responsibility, within its jurisdiction, to respect, protect, fulfill and promote these rights.

3. The City of Richmond shall apply the precautionary principle: where threats of serious or irreversible damage to human health or the environment exist, the City of Richmond shall take cost effective measures to prevent the degradation of the environment and protect the health of its citizens. Lack of full scientific certainty shall not be viewed as sufficient reason for the MUNICIPALITY to postpone such measures

4. The City of Richmond shall apply full cost accounting: when evaluating reasonably foreseeable costs of proposed actions and alternatives, the City of Richmond will consider costs to human health and the environment.

5. By Dec 31st, 2015, the City of Richmond shall specify objectives, targets and timelines and actions the City of Richmond will take, within its jurisdiction, to fulfill residents’ right to a healthy environment, including priority actions to:

a. Ensure equitable distribution of environmental benefits and burdens within the municipality, preventing the development of pollution “hot spots”;

b. Ensure infrastructure and development projects protect the environment, including air quality;

c. Address climate change by reducing greenhouse gas emissions and implementing adaptation measures;

d. Responsibly increase density;

e. Prioritize walking, cycling and public transit as preferred modes of transportation;

f. Ensure adequate infrastructure for the provision of safe and accessible drinking water;

g. Promote the availability of safe foods;

h. Reduce solid waste and promote recycling and composting;

i. Establish and maintain accessible green spaces in all residential neighbourhoods.

The City of Richmond shall review the objectives, targets, timelines and actions every five (5) years, and evaluate progress towards fulfilling this declaration.

The City of Richmond shall consult with residents as part of this process.

This is part of a greater push across Canada for a change in the Canadian Charter of Rights and Freedoms to specifically recognize the right of all Canadian’s to live in a healthy environment. An in depth and comprehensive analysis of this issue was recently undertaken by Professor David R. Boyd in his book: The Environmental Rights Revolution: A Global Study of Constitutions, Human Rights and the Environment.

James Early

Final South Saskatchewan Regional Plan Released

Alberta’s Land-use Framework (LUF), released in December 2008, established seven land-use regions and called for the development of a regional plan for each. The Alberta Land Stewardship Act (the “Act”) supports the LUF and establishes the legal basis for the development of regional plans.

The South Saskatchewan Regional Plan (the “Plan”) is one such plan and was released today by the Alberta Government. To review the Plan, just click here.

While the Plan establishes a long term vision for the South Saskatchewan region and places various commitments and requirements on those who make land-use decisions in Alberta, it is largely toothless when it comes to enforcement by the public. The Act provides that a regional plan, while binding the Crown, local government bodies and decision-makers, does not

– create or provide any person with a cause of action or a right or ability to bring an application or proceeding in or before any court or in or before a decision‑maker,

– create any claim exercisable by any person, or

– confer jurisdiction on any court or decision‑maker to grant relief in respect of any claim.

A person may, however, make a written complaint to the secretariat that a regional plan is not being complied with. If, following the investigation of the secretariat, the stewardship commissioner is satisfied that there has been non-compliance with a regional plan, the stewardship commissioner may apply to the Court of Queen’s Bench for an order, inter alia:

– to stop something being done, to require something to be done or to change the way in which something is being done;

– to manage the conduct of a person who is non‑compliant;

– declaring that any regulatory instrument of a local government body does or does not comply with a regional plan and, if necessary, ordering compliance;

– to take any action or measure necessary to remedy or rectify non‑compliance with a regional plan and, if necessary, an order to prevent a reoccurrence of the contravention;

– to amend or repeal a regulatory instrument of a local government body that does not comply with a regional plan.

As for the Plan, itself, criticism is already being directed at it in terms of its failure to fully protect the Castle Special Place and the headwaters of the Oldman River. Criticism is also aimed at the Plan’s failure to stand up to industry and motorized recreation groups, although, in turn, those recreation groups are also complaining that the Plan would make some off-roading trails off limits.

As expected, few appear to be happy with the final plan. So far, industry has been silent.

James Early

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

Municipal Government Act Public Feedback Deadlines

As I posted last month, the Government of Alberta is conducting a review of the Municipal Government Act (“MGA”).

Albertans are able to provide their input by way or workbook, until April 30, 2014, or by email submissions to: mga.review@gov.ab.ca by June 13, 2014.

The province is encouraging Albertans to share feedback and ideas and what is working, what isn’t working and what sort of revisions you would like to see so that the MGA can best support building strong communities.

To get to the workbook, you can visit: mgareview.alberta.ca, scroll to the bottom of the page and click on “workbook.”

By James Early