December 2006

Disclaimer: Agrilaw is a syndicated column produced by the full service London law firm of Cohen Highley LLP.  Paul G. Vogel, a partner in the firm, practises in the area of commercial litigation and environmental law.   Agrilaw is intended to provide information to farmers on subjects of interest and importance. The opinions expressed are not intended as legal advice.  Before acting on any information contained in AgriLaw, readers should obtain legal advice with respect to their own particular circumstances.

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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-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 nutrient 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 municipal well site – significantly beyond the 100 metre set-back called for in the Regulation. However, the logical extension of the argument made by the (respondents) and the intervener is that the Province has implemented the Walkerton Inquiry Recommendations by providing that a farmer can construct a manure storage facility to collect the waste from 2,000 hogs – three quarters of a million gallons per year – within the length of a football field from a municipal well that provides drinking water to the community. And the local municipality is powerless to deal with the situation, even though they have a thorough and well-founded study demonstrating that, given local geological and soil conditions, contamination seeping into the soil from a greater distance than 100 metres will endanger the municipality’s supply of drinking water. In my view, such an interpretive result is absurd and could not have been intended by the Legislature.”

For the present, provisions of municipal by-laws more restrictive than provincial regulations with respect to the siting of intensive agricultural facilities will be rendered inoperative under the test prescribed in the NMA. It would appear that, to avoid the absurdity of the result noted by the dissenting judge and frustration of the Walkerton Inquiry recommendation, will require legislative amendment