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WHEREAS the “Right to Farm” legislation within Alberta is provided under the Agricultural Operation Practices Act; and
WHEREAS the present legislation requires the agricultural operator to defend their operations as “generally accepted agricultural practice” to be not liable in an action in nuisance, or to prevent an injunction against their operations; and
WHEREAS the cost and time to defend against actions may result in the agricultural operation being forced to cease operations at that location; and
THEREFORE BE IT RESOLVED that the Alberta Association of Municipal Districts and Counties urge the Government of Alberta to protect agricultural operations by extending the following protections to agricultural operations under the Agricultural Operation Practices Act:
(a) establishing a priority of prior use based on the use of land for agricultural operations prior to newer developments;
(b) accepting generally accepted agricultural practices from existing decisions and standards without the requirement of the agricultural operation to prove those practices; and
(c) having all legal costs and expenses paid by those originating the action;
The Agricultural Operation Practices Act contains the following legislation which is considered as the “Right to Farm” legislation within Alberta.
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2(1) A person who carries on an agricultural operation and who, in respect of that operation, does not contravene
(a) the land use bylaw of the municipality or Metis settlement in which the agricultural operation is carried on,
(b) the regulations or an approval, registration or authorization, or
(c) the generally accepted agricultural practice
is not liable to any person in an action in nuisance resulting from the agricultural operation and is not to be prevented by injunction or other order of a court from carrying on the agricultural operation because it causes or creates a nuisance.
(1.1) If subsection (1)(a) is contravened but the contravention is authorized by an approval, authorization or registration; the approval, authorization or registration prevails over the land use bylaw with which it conflicts.
(2) Subsection (1) continues to apply notwithstanding that one or more of the following occur:
(a) the land use bylaw of the municipality or Metis settlement in which the agricultural operation is carried on changes;
(b) the ownership of the agricultural land on which the agricultural operation is carried on changes;
(c) the agricultural operation is carried on by other persons;
(d) the use of land adjacent to the land on which the agricultural operation is carried on changes.
(3) Where a plaintiff or claimant in a proceeding against a person who carries on an agricultural operation
(a) claims damages in nuisance resulting from the agricultural operation, or
(b) applies for an injunction or other order of a court preventing or restricting the carrying on of the agricultural operation because it causes or creates a nuisance,
the onus of proving that the defendant contravened the land use bylaw, regulation, approval, registration, authorization or practice referred to in subsection (1) is on the plaintiff or claimant, as the case may be.
(4) In an action in nuisance against a person who carries on an agricultural operation, a court may
(a) order the party that commenced the action to furnish security for costs in any amount the court considers proper;
(b) award party and party costs and solicitor and client costs or either of them.
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.
4 The parties to a referral to the Minister under section 38.1 are the Board, the owner or operator about whom the referral is made and any other person the practice review committee considers to be directly affected.
5(1) On receipt of an application under section 3 or a referral under section 38.1 the Minister may
(a) refuse to consider the application or referral if, in the Minister’s opinion,
(i) the subject matter of the application or referral is without merit, frivolous or vexatious,
(i.1) the subject matter of the application or referral has already been considered by a practice review committee,
(i.2) the subject matter of the application or referral is the subject matter of an enforcement order under section 39, a review being held by the Board under section 41 or an emergency order under section 42.1,
(ii) the application or referral is not made in good faith, or
(iii) the applicant or person aggrieved does not have a sufficient connection to the subject matter of the application,
(b) appoint 3 persons as an agricultural practice review committee to consider the application or referral, 2 of whom must have experience in the type of farming operation to which the application or referral relates.
Section 5(2) through 5(3) provide for the administration, appointment and renumeration of a practice review committees
(Section 6 provides for the powers and immunity of a practice review committee)
(Section 7 provides for the practice and procedures of a practice review committee)
8(1) A practice review committee, when acting as a mediator, may assist the parties in reaching their own mutually acceptable settlement by structuring negotiations, facilitating communication and identifying the issues and interests of the parties.
(2) The practice review committee may inquire into and assist the parties in resolving the dispute and, if the matter is not resolved, may recommend to the Minister what should constitute a generally accepted agricultural practice in respect of that agricultural operation.
9(1) If the parties enter into an agreement to resolve the dispute or if a practice review committee makes recommendations, the practice review committee must provide a written copy of the agreement or of its recommendations to the Minister, to each of the parties and to any other person or organization the Minister directs.
(2) In any proceeding arising out of a matter giving rise to an application under this Part, a certificate purporting to be signed by a person authorized by the Minister to issue such a certificate stating that the document attached to the certificate is a true copy of an agreement entered into by the parties, or of recommendations issued under subsection (1) by a practice review committee, may be admitted into evidence, in the absence of evidence to the contrary, of the agreement or recommendations without proof of the signature or official character of the person signing it, the parties to the agreement or the practice review committee members and, if admitted into evidence, must be considered in the proceeding.
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History of Right to Farm Legislation in Canada:
Manitoba in 1976 passed the first right-to-farm law in Canada with the Nuisance Act, which it replaced in 1992 with the Farm Practices Protection Act.
Quebec was next in 1978 with an Act to Preserve Agricultural Land, which it replaced by an Act Respecting the Preservation of Agricultural Land and Agricultural Activities.
New Brunswick In 1986 passed its Agricultural Operation Practices Act; and amended it most recently in 2003.
Nova Scotia in 1986 passed the Agricultural Operations Protection Act; since replaced by the Farm Practices Act.
Alberta in 1987 passed the Agricultural Operation Practices Act, and amended it most recently in 2004.
Ontario in 1988 passed the Farm Practices Protection Act, and moved those provisions to the Farming and Food Production Protection Act.
British Columbia in 1989 passed the Agriculture Protection Act; since replaced by the Farm Practices Protection (Right to Farm) Act.
Saskatchewan in 1995 passed the Agricultural Operations Act.
Prince Edward Island in 1998 passed the Farm Practices Act.
Newfoundland and Labrador in 2001 passed the Farm Practices Protection Act.
The AAMDC has no active resolutions directly related to this issue.
Agriculture and Rural Development:
Alberta does not have right to farm legislation; however, the Agricultural Operation Practices Act (AOPA) includes a process that may provide an agricultural operator protection from a civil nuisance case. Under Part 1 of the AOPA, which deals with nuisance relating to any agricultural operation, a Practice Review Committee may hold a hearing on the agricultural operation and recommend to the Minister if a generally acceptable agricultural practice (GAAP) certificate should be issued. This certificate provides a due diligence defense for the agricultural operator in a civil nuisance lawsuit. Agriculture and Rural Development reimburses the costs of the committee and the tribunal members, while the operator and/or the complainant are responsible for their own costs.
It should be noted that the new Alberta Land Stewardship Act, which includes development of regional plans, will take priority over the AOPA. Some regional plans are now being developed and are expected to address land use and prioritize land use on a regional or sub-regional basis. Municipalities, producers and citizens will have opportunities to participate in the regional planning process. Counties may also choose to protect agricultural lands through their own land use bylaws, which is the current mechanism.
The Government of Alberta’s original response to this resolution was deemed unsatisfactory. It focused primarily on the existing AOPA processes related to generally accepted agricultural practices. The Government of Alberta did not address the fact that agricultural operators are facing lengthy time and significant costs to defend their generally accepted agricultural practices. At a previous meeting with the Minister of Agriculture and Rural Development, the AAMDC encouraged the Minister to consider expanding the right to farm legislation under AOPA to ensure priority of use of agriculture over new developments; to accept agricultural practices from existing decisions and standards without the requirement to prove those practices; and to have all legal costs and expenses paid by those originating the action. In response, the AAMDC was advised that municipal planning plays an important role in establishing agriculture as a priority use of land. In addition, the generally accepted practice standard is a moving target that gradually transitions to higher levels of environmental performance over time. The AAMDC will continue to advocate on this issue.