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The Freedom to Farm in an Urban Environment

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The Freedom to Farm in an Urban Environment THE FREEDOM TO FARM IN AN URBAN ENVIRONMENT: A CONSTITUTIONAL REVIEW OF SASKATOON’S PROHIBITION ON URBAN MICRO-LIVESTOCKING A Thesis Submitted to the College of Graduate Studies and Research In Partial Fulfillment of the Requirements For the Degree of Master of Laws In the College of Law University of Saskatchewan Saskatoon By JONATHAN EDWARD STOCKDALE Copyright Jonathan Edward Stockdale, June, 2015. All rights reserved. PERMISSION TO USE In presenting this thesis in partial fulfillment of the requirements for a Postgraduate degree from the University of Saskatchewan, I agree that the Libraries of this University may make it freely available for inspection. I further agree that permission for copying of this thesis in any manner, in whole or in part, for scholarly purposes may be granted by the professor or professors who supervised my thesis work or, in their absence, by the Head of the Department or the Dean of the College in which my thesis work was done. It is understood that any copying or publication or use of this thesis or parts thereof for financial gain shall not be allowed without my written permission. It is also understood that due recognition shall be given to me and to the University of Saskatchewan in any scholarly use which may be made of any material in my thesis. Requests for permission to copy or to make other use of material in this thesis in whole or part should be addressed to: Dean College of Law University of Saskatchewan Law Building 15 Campus Drive Saskatoon, SK S7N 5A6 Canada OR Dean College of Graduate Studies and Research University of Saskatchewan 107 Administration Place Saskatoon, SK S7N 5A2 Canada DISCLAIMER The author of the report is not at the time of writing a licensed or practicing member of any Law Society within Canada, and therefore, the contents of this thesis are provided for academic and informational purposes only. If you are seeking legal advice, please consult a lawyer. i ABSTRACT This work considers the legal impediments to farming in an urban environment with a particular focus on the municipal bylaws that prohibit the keeping of hens in Saskatoon. The jurisdictional competency of Saskatoon to prohibit the keeping of urban hens is challenged under both municipal law and constitutional law, and more broadly, under the general premise that liberty interests should often prevail where a bylaw is arbitrary, misinformed, and restricts the pursuit of truth and human flourishing. Saskatoon’s urban hen prohibition is argued to be premised more on a form of moral reasoning that unnecessarily distinguishes between rural and urban environments, and less, if at all, on empirical evidence. Urban agriculture is often undertaken to address the environmental and social shortfalls of the global food system, such as the system’s connection with climate change, animal welfare issues, and challenges associated with the distribution of food. Moreover, urban agriculture is a means of protecting the rights of producers and consumers, as articulated by the food sovereignty movement. In this work, a claimant’s desire to advance food rights (including food sovereignty) through the keeping of urban hens is argued to engage the guarantee to freedom of expression and freedom of conscience under Canada’s Charter of Rights and Freedoms.1 This work explores the possibility of protecting the manifestation of social and environmental action through the guarantee to freedom of conscience. This work develops a cursory test for determining where a claimant’s guarantee to freedom of conscience is violated, drawing on the well established protection of freedom of expression and freedom of religion. 1 The Constitution Act, 1982, being Schedule B to The Canada Act 1982 (UK), 1982, c 11, Part I. ii ACKNOWLEDGMENTS I would like to thank my supervisor, Professor Sarah Buhler, for her consistent support and encouragement throughout this project. I would also like to thank other committee members Patricia Farnese and Mark Carter for their wisdom and guidance. Also from the College of Law, I would like to thank Professor Felix Hoehn for his generous input in the municipal law section. Finally, I would like to thank Professor Lucinda Vandervort for sparking my interest in academic writing and providing me with the foundational analytical skills that I use every day as an advocate. This work is dedicated to my family and friends, and to all of those whose struggle and strife, and meaning of life, is sustainable agriculture. iii TABLE OF CONTENTS PERMISSION TO USE ................................................................................................................... i DISCLAIMER .............................................................................................................................. i ABTRACT ............................................................................................................................. ii ACKNOWLEDGEMENTS ........................................................................................................... iii CHAPTER 1 - INTRODUCTION .............................................................................................. 1 1.1 The Crime Scene ............................................................................................................. 1 1.2 Bringing Hen Prohibitions to Court ................................................................................ 2 1.3 General Premises ............................................................................................................ 4 1.4 Overview ......................................................................................................................... 7 CHAPTER 2 - BACKGROUND ON BYLAWS, AGRICULTURE, AND THE ENVIRONMENT ........................................................................................................................... 9 2.1 Saskatoon’s Bylaws ........................................................................................................ 9 Saskatoon’s Animal Control Bylaw, 1999 ............................................................................. 9 Saskatoon’s Zoning Bylaw ................................................................................................... 11 Other Jurisdictions ................................................................................................................ 11 2.2 History of Saskatoon’s Animal bylaws......................................................................... 14 Early Bylaws ......................................................................................................................... 16 The Advent of Zoning ........................................................................................................... 17 1950s – 1980s ....................................................................................................................... 18 2.3 Modern Agricultural Policy .......................................................................................... 19 The Global Food System ...................................................................................................... 19 Urban Agriculture Revival .................................................................................................... 22 CHAPTER 3 - THE THEORY OF FOOD RIGHTS IN CANADA ......................................... 27 3.1 Climate Justice .............................................................................................................. 27 Empirical basis for Climate Justice ...................................................................................... 28 Climate Justice and Urban Agriculture ................................................................................. 30 3.2 Food Rights ................................................................................................................... 32 Global to Local Food Security .............................................................................................. 32 Justiciability of the Right to Food ......................................................................................... 35 Food Sovereignty .................................................................................................................. 38 Incorporation and implementation of Food Sovereignty ...................................................... 40 Other food rights frameworks ............................................................................................... 43 Summary ............................................................................................................................... 44 CHAPTER 4 - MUNICIPAL AUTHORITY AND URBAN CHICKENS .............................. 45 iv 4.1 Overview of municipal power ...................................................................................... 45 Source of municipal power ................................................................................................... 45 Scope of municipal power .................................................................................................... 46 Authority to Prohibit ............................................................................................................. 48 Unreasonableness Limitation ................................................................................................ 49 Bad Faith and Invalid Purpose Limitation ............................................................................ 51 4.2 Evaluation of jurisdiction to
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