Right-to-Farm Legislation in British Columbia Melina Laverty University of Toronto Law School Prepared for Environment Probe 2008 Introduction As their popular name suggests, “right-to-farm” laws are a form of statutory protection of farmers.1 While laws vary from jurisdiction to jurisdiction, their main purpose is to protect farmers from lawsuits, primarily those based on nuisance. The first such legislation was enacted in the United States in 1963 to protect feedlots in Kansas. By 1994, every state had enacted some form of right-to-farm law.2 Canadian provinces followed their lead, and eventually every province across Canada implemented some form of right-to-farm law [see Table 1]. British Columbia enacted its first right-to-farm law in 1989. Table 1. Current Right-to-Farm Legislation in Canada Province Statute Alberta Agricultural Operation Practices Act, R.S.A. 2000, c. A-7 British Columbia Farm Practices Protection (Right to Farm) Act, R.S.B.C. 1996, c.131 Manitoba Farm Practices Protection Act, C.C.S.M. 1992, c. F45 New Brunswick Agricultural Operation Practices Act, S.N.B. 1999, c. A-5.3 Newfoundland and Farm Practices Protection Act, S.N.L. 2001, c. F- Labrador 4.1 Nova Scotia Farm Practices Act, S.N.S. 2000, c.3 Ontario Farming and Food Production Protection Act, S.O. 1998, c.1 Prince Edward Island Farm Practices Act, R.S.P.E.I. 1988, c.F-4.01 Quebec Act Respecting the Preservation of Agricultural Land and Agricultural Activities, R.S.Q. c.P-41.1 Saskatchewan Agricultural Operations Act, S.S. 1995, c. A-12.1 Historically under the common law, property owners had the right to the “reasonable use and enjoyment of their property.”3 The activities they could conduct on their property were limited to ones that did not harm their neighbours. This is summed up in the Latin maxim sic utere tuo, ut alienum non laedus, literally “use your own property so as not to harm another’s.” The principle underlying this maxim is thought to date to the mid- thirteenth century judge and scholar Henry of Bracton. These ideas would later serve as 4 the foundation for nuisance law. 1 Brubaker, E. Greener Pastures: Decentralizing the Regulation of Agricultural Pollution. (Toronto: University of Toronto Press, 2007) 2 American Farmland Trust. Right-to-Farm Fact Sheet. Available at http://www.farmland.org. 3 Brubaker, E. Property Rights in the Defence of Nature. (Toronto: Earthscan, 1995) at 39-43. 4 Ibid at 41. 2 The classic nuisance case involved some kind of unreasonable interference with the enjoyment of land. This could include a host of disturbances, such as dust, smoke, odours, or noise. The standard to determine whether something constituted a disturbance was based on what a reasonable person would find disturbing. Historically, when nuisance cases were before the courts, judges issued injunctions, or orders requiring the defendants to stop the nuisances. This right to an injunction most famously arose in the Shelfer case.5 In that case, an electric generator was creating a nuisance; the court held that an injunction was the appropriate remedy, and that damages should be awarded instead of injunctions only in exceptional cases. A second remedy to nuisance suits arose in the United States and involved a “balancing of equity” as between the plaintiff and the defendant. In cases where defendants (most typically large companies) provided important socio-economic services to society, and the costs to prevent the nuisances would be too high, the courts awarded damages in lieu of injunctions. In both the United States and Britain, courts tended to give industry more leeway to pollute and afforded less protection to the rights of private property owners than they did in Canada. Black v. Canadian Copper Co.6 represented a departure from traditional nuisance law decisions in Canada.7 In that case, farmers in Sudbury Ontario complained about crop losses from nearby copper and nickel smelters. Justice Middleton awarded a modest amount of damages but did not issue an injunction against the company. In part, this was because the mining industry supported much of the community. Following this case, the provincial government enacted the Damage by Fumes Arbitration Act,8 removing the remedy of injunction against the emitters of sulphur fumes.9 Another famous Canadian nuisance case is that of KVP Co. v. Mckie et al.10 KVP operated a pulp and paper mill on the Spanish River. The waste from its operations was polluting the river downstream, killing fish and making the water unfit to drink. Property owners downstream of the mill, including tourist lodge operators, commercial fishermen and farmers, were directly impacted by waste. In contrast to Black v. Canadian Copper, the courts stuck to the traditional nuisance remedy and ordered an injunction requiring KVP to stop polluting the water. Initially the legislature amended the Lakes and Rivers Improvement Act to require judges to balance the interests of injured property owners with the socio-economic impact on the communities who depended on the pulp and paper industry. The amendment was too late to assist with the appeal. Following the Supreme Court decision against the mill owners, the government stepped in and enacted the K.V.P. 5 Shelfer v. City of London Electric Lightning Company [1895] 1 Ch. 287 6 Black v. Canadian Copper Co. (1917) 12 OWN 243 7 Dewees, D. and M. Halewood. 1992. The Efficiency of the Common Law: Sulphur Dioxide Emissions in Sudbury. 42 University of Toronto Law Journal 1 at 8; McLaren, J.P.S. The Common Law Nuisance Actions and the Environmental Battle – Well Tempered Swords or Broken Reeds. 10 Osgoode Hall L. J. 552-60; Nedlsky, J. Comparative Perspectives on Nuisance Law 1880-1930 in D.H. Flahery. Essays in the History of Canadian Law. (Toronto: University of Toronto Press, 1981) 8 Damage by Fumes Arbitration Act, R.S.O. 1921, c.85 9 Supra Note 5 at 11. 10 K.V.P. Co. Ltd. v. McKie et al., [1949] S.C.R. 698 3 Company Limited Ac,11 enabling KVP to continue to pollute the river. Clearly, farmers are not the only ones that governments have sought to protect from nuisance cases via statute. Parallels are also seen between the statutory protection of the lumber industry in the nineteenth century with that of farmers now.12 Strong lobbyists within the lumber industry, such as the lumber barons of the Ottawa River, cited the importance of lumber to the economy and the costs of preventing sawdust from entering neighbouring streams. They urged the government to protect them from economic ruin.13 The Ontario government responded by enacting An Act Respecting Sawmills on the Ottawa River.14 The Act removed the threat of an injunction and allowed courts to order only damages when the industry adversely impacted private property rights. Eventually, increasing evidence of the pollution of the nation’s waterways by industry and its interference with other interests such as navigation and fisheries led to the enactment of environmental legislation. The social costs of industrialization began to be recognized, and there was an understanding that government support for industry came with a duty to protect the broader public interest.15 The parliamentary debates in British Columbia leading up to the introduction of right-to- farm legislation highlight the similarities between government’s efforts to protect powerful industrialists in the nineteenth century and its efforts to protect farmers today. In particular, the emotional appeals about the economic struggles to survive as a farmer and the importance of farmers to society echo the industrialists’ claims. The Evolution of Right-to-Farm Laws in British Columbia Agricultural Land Reserve Act Assistance to farmers in British Columbia began with efforts to set aside land for agricultural use.16 Reserving land for farming was considered particularly critical in British Columbia and it is not surprising that it was the first province to enact this type of legislation. The mountainous landscape meant there was a shortage of developable land, resulting in competition for land to meet both urban and agriculture needs. Less than five percent of land in British Columbia, concentrated in the valleys, is suitable for agriculture.17 Prime farmland (less than one percent of the land base) is found in the areas under most pressure for urbanization. In 1973, the Agricultural Land Commission Act, 11 K.V.P. Company Limited Act (1950, c. 33) 12 Mclaren, J.P.S. 1984. The Tribulations of Antoine Ratté: A Case Study of Environmental Regulation of the Canadian Lumbering Industry in the Nineteenth Century. U.N.B. Law Journal 33 at 203-259. 13 Ibid at 224. 14 Ibid at 204 and 224. An Act Respecting Sawmills on the Ottawa River, S.O. 1885, c. 24 s.1. 15 Ibid at 255. 16 Pierce, J.T. and O.J. Furuseth. 1982. Farmland protection planning in British Columbia. Geojournal 6(6):555-560 17 Curran, D. 2007. British Columbia’s Agricultural Land Reserve: A Legal Review of the Question of Community Need, April 4, 2007. Smart Growth BC, Vancouver BC. 4 now known as the Agricultural Land Reserve Act (ALRA), was enacted.18 The ALRA allowed special zoning for agricultural land reserves (ALRs) to be created by the provincial government. Agricultural land reserves total about 4.7 million hectares, with slight fluctuations in total area since they were created in 1973.19 Since 2002, the Commission has begun to allow a broader range of uses on the ALRs based on community needs. The factors that are considered include the social, economic, environmental, and heritage needs of the community.