The Rural Voice, 2006-12, Page 56Agri law
Regulating manure - absurd?
Paul G.
Vogel, a
partner in the
London law
firm of Cohen
Highley LLP.
By Paul Vogel
One of the recommendations
contained in the report of the
Walkerton inquiry was that "once a
farm has in place an individual water
protection plan that is consistent with
the applicable source protection plan,
the municipality should not have the
authority to require that farm to meet
a higher standard of protection of
drinking water sources than that
which is laid out in the farm's water
protection plan."
Based on that recommendation, in
enacting Ontario's Nutrient
Management Act (NMA), the
province stipulated that the regulation
establishing nutrient management
requirements under the Act
"supersedes a by-law of a
municipality or a provision in that by-
law if the by-law or provision
addresses the same subject matter as
the regulation." Where a municipality
enacts a by-law more stringent than
NMA requirements to protect a
municipal water source, does the
NMA "supersede" the by-law so as to
render the by-law's more stringent
provisions inoperative?
The Ontario Court of Appeal
recently considered a case in which
an intensive hog operation wishing to
double its capacity from 1,000 to
2,000 hogs had received approval of
its nutrient management plan under
the NMA and had succeeded on a
court application for a declaration
that it was not required to comply
with a municipal by-law which would
have prohibited the proposed
expansion. The NMA regulation
prohibits the construction or
expansion of permanent nutrient
storage facilities within 100 metres of
a municipal well. The municipal by -
52 THE RURAL VOICE
law, based upon a groundwater study
prohibited intensive livestock
operations in certain "sensitivity
areas", including the area of the
proposed facility from which it would
take two years or less for
contamination to reach the municipal
well. Upon the municipality's appeal,
the appellate court was required to
determine whether the by-law's
prohibition of establishment of an
intensive livestock operation within
the two-year capture zone addressed
"the same subject matter" as the NMA
regulation so as to be "superseded"
thereby.
The general test to be applied in
determining whether a provision of a
municipal by-law is rendered
inoperative by provincial legislation
is the impossibility of dual
compliance test — whether "obeying
one necessarily means disobeying the
other". Under this test, both
requirements will remain operative as
long as compliance with both is
possible. However, this general test
does not apply where the relevant
provincial legislation specifies a
different test.
In the case under appeal, the court
concluded that the impossibility of
dual compliance tests did not apply
because the NMA has stipulated a
different test — whether the by-law or
provision thereof "addresses the same
subject matter" as the Regulation.
Although the court recognized that
the Regulation was concerned with
nuuicnt management of livestock
operations while the by-law
categorized land use according to
sensitivity to potential contamination,
the court held that both the regulation
and by-law had similar underlying
purposes and objects (i.e. to protect
against water contamination of
municipal wells). The court stated:
" ... the By-law contains a specific
provision that regulates intensive
livestock operations and
associated nutrient storage
facilities. This provision addresses
the same subject matter and has
the same purpose as the
Regulation ... The dominant
feature of this provision of the By-
law is the same as the purpose of
the Regulation, that is, the
management of intensive livestock
operations and their associated
manure storage facilities, and even
has one of the same underlying
goals, to prevent groundwater
contamination."
As a. result, in applying the test as
stipulated by the NMA, the court
concluded:
"The Regulation sets out a
comprehensive scheme that
manages all aspects of nutrients in
an agricultural operation. The
Regulation includes provisions
about set backs from municipal
wells, and where and when
nutrient storage facilities can be
located. The relevant portion of
the By-law does exactly the same
thing; it tells an agricultural
operation where and when nutrient
storage facilities can be located.
The legal and practical effect of
the By-law is to add
supplementary requirements to the
approval of the province under the
Nutrient Management Act, 2002.
As indicated, the Province's intent
was not to allow municipalities to
have this role."
In this case, the more stringent
requirement of the municipal by-law
which would have prohibited the
proposed facility was rendered
inoperative because of the regulatory
standard established in the NMA. In
his dissenting decision, another
appellate court judge noted that this
result is contrary to the purpose of the
Walkerton inquiry recommendation.
He stated:
"It must not be forgotten that we
are talking about "nutrients" here
only in the euphemistic sense that
legislators like to use in framing
their enactments. What we are
talking about is manure and its
contaminating effects on surface
and ground water. On the facts of
this case, the (intensive hog
operation) new manure storage
facility is to be constructed some
823 metres from the Town's