table of contents - law society of...

) TABLE OF CONTENTS

I. INTRODUCTION 2

II. ENVIRONMENTAL PROTECTION LAW AND AGRICULTURE 4

III. LEGAL IMPLICATIONS OF ENVIRONMENTAL FARM PLANS 6

A. CIVIL LAW 61. Negligence 62. Nuisance 8

B. CRIMINAL LAW 111. The Statutory Law ofPollution 112. Due Diligence : 12

IV. CONFIDENTIALITY AND PRIVILEGE 14

V. CONCLUSION 16

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Legal Implications of an Environmental Farm Plan

I. INTRODUCTION

Agriculture has a huge influence on the environment. This influence arises partly from the fact

that agriculture covers such a large land area and partly from the fact that agriculture has such a

complex and intimate interaction with the natural environment. Public attention is increasingly

focused on the impact that agriculture has on the environment. Public concerns about water

quality and global warming are examples of increased public attention to the roll that the

agriculture plays in our environment. These areas of public concern have lead to an increased

public interest in government policies that can mitigate agriculture's negative effects on the

environment. The interest of the urban public in the environment has resulted in this new

approach to agricultural and environmental policy called environmental farm plans.

Until recently, the environmental community has not had a large influence on agricultural policy

in Canada. However, the political power of environmental interests is increasing at a time when

the political influence of agriculture is declining. This is partly due to the urbanization of our

society and to the declining number of people making a living from the business of farming. Up

until now, the usual approach to environmental issues in agriculture has been voluntary rather

than regulatory in nature. However, these trends are changing. For example, the regulation of

fuel and pesticides storage on farms is a recent phenomenon.

It is noteworthy that environmental farm plans are a federal government program designed and

implemented through the Agriculture and Agri-Food Canada Ministry. It is not a program

through Environment Canada. The environmental farm plans are in fact a component of the

federal Agriculture Policy Framework adopted by the federal government since 2000.

EMERGING ENVIRONMENTAL ISSUES - Legal Implications ofEnvironmental Farm Plans

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U.S. farm and environmental policy is somewhat ahead of Canadian policy in this regard. In the

United States, cross-compliance provisions have been part of U.S. farm law since 1985. This

policy requires farmers who receive government benefits to develop and apply conservation

plans in order to be entitled to the money. Such cross-compliance provisions have been in place

for soil conservation on highly erodable land and for wetland conservation. These programs are

"carrot" voluntary programs instead of "stick" programs. In this respect, agriculture is unique in

that "command and control" type measures have been the norm outside of agriculture for some

time. There is some concern that environmental farm plans are moving agriculture a step closer

to the "stick" type of programs.

Policy makers in Ottawa are aware that farmers are sharing their rural environment with people

who care more about quality of life issues than about the availability or price of food. These

non-farm residents of rural areas increasingly value the natural amenities of the countryside over

its ability to produce food. The environmental concerns of these non-farm rural residents are

given a voice in environmental farm plans. If these non-farm rural residents cannot be satisfied

by the voluntary nature of the environmental farm plan measures, further regulation of

agriculture may be imminent.

This paper will provide a brief comment on environmental protection law and its general

application to agriculture. The next part of the paper will outline some of the legal implications

of environmental farm plans by reviewing their implications in the areas of criminal law and

civil law. The paper will then briefly review the concepts of confidentiality and privilege as they

effect environmental farm plans.


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II. ENVIRONMENTAL PROTECTION LAW AND AGRICULTURE

Environmental farm plans are programs designed to help farmers assess the environmental

impact of their operations and identify areas of concern and actions that can be taken to minimize

environmental risk on the farm. A key part of the program is to help farmers identify and learn

about provincial and federal environmental legislation that may impose liability on farmers.

Farmers are educated about the liabilities that may be imposed on them as farm owners and

operators when they are engaged in activities that may result in harm to the environment. It is a

significant and valuable part of the environmental farm planning process that the farmer's

awareness is increased about the potential environmental liabilities associated with farming.

Provincial and federal environmental legislation as well as the common law impose liabilities for

harm to the environment. These liabilities may arise whether a farmer has an environmental

farm plan or not.

Environmental farm plans are designed to help farmers identify the potential liability risks in a

number of areas. Generally, statutes and regulations prohibit the discharge of contaminants or

waste into the environment. Farmers should understand that environmental farm planning is

designed to limit the discharge of contaminants or waste into the environment and, where there is

a discharge, to limit the potential damage from such a discharge. This broad general concept

goes a long way towards describing what an environmental farm plan is.

Statutes and regulations which regulate the discharge of contaminants or waste into the

environment also give the government authority to take action against the farmer where there has

been an adverse environmental effect. The actions available to the government include a

requirement to stop the discharge, a requirement to report the discharge and a requirement to

reduce or repair any damage that may have been caused by the discharge. The environmental

farm plan process helps the farmer to understand that there are potential regulatory consequences

for any activity which has adverse environmental effects.


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) Each province has laws which deal with waste and contaminant discharges into the environment.

The federal government has regulations in a number of these areas as well. These regulatory

schemes can impose liability on farmers in the following areas:

(a) Water contamination.

(b) Water use and management.

(c) Farm waste management.

(d) Nutrient management/manure storage, handling and use.

(e) Petroleum storage and handling.

(f) Pest management.

(g) Livestock production.

(h) Soil conservation and management.

(i) Protection of endangered species.

G) Air pollution.

It has long been an accepted part of our legal system that ignorance of the law is no excuse for a

violation. Farmers need to be reminded of this when it comes to environmental farm planning.

A farmer may be guilty of pollution and be exposed to serious remedies for his actions, even

though he may not be aware that his action is against the law. The process of creating an

Environment Farm Plan will therefore assist the farmer in learning about the law and about the

potential liabilities of his farm operation. Most farmers will recognize the benefits to their farm

business of taking action to reduce risk in the business. This risk reduction benefit should be a

major selling point for environmental farm plans.

)EMERGING ENVIRONMENTAL ISSUES - Legal Implications ofEnvironmental Farm Plans

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III. LEGAL IMPLICATIONS OF ENVIRONMENTAL FARM PLANS

Before the development of environmental law in government statutes and regulations,

environmental liability was provided for by the common law. Courts had ruled in some cases

that if the activities of a farmer injured another person, the farmer could be held liable under

common law claims in negligence, nuisance, or trespass. An increased public awareness of the

environmental risks involved in farming lead to the enactment of environmental statutes. Thus,

there is now a mix of common law and statute law setting the rules for environmental liability.

A. Civil Law

Civil law deals with the area of claims for money when one party has been injured by the

activities of another. One area of civil law is sometimes called tort law and includes the legal

concepts of negligence, nuisance and trespass.

1. Negligence

Every farmer has a duty to conduct his farming operations in such a way so as not to harm

others. A farmer may be liable for injuries to others if the farmer breaches this duty of care and

his conduct is found to be negligent.

In order to make a negligence claim, the person who is injured (called the plaintiff) must first

establish that the defendant owed the plaintiff a duty of care. A duty of care is broadly owed to

people who are "so closely and directly effected by my act that I ought reasonably to have them

in contemplation as being so effected when I am directing my mind to the acts or omissions

which are called in question"!

I Donoghue v. Stevenson, [1932] A.C. 562 at 580 (H.L.).

EMERGING ENVIRONMENTAL ISSUES - Legal Implications o/Environmental Farm Plans

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If a duty of care is established, it must further be shown that the defendant failed to meet a

standard of care to which the plaintiff was entitled. The "standard of care" is a key concept that

involves the environmental farm plan. The reason that the standard of care is an important

concept is that the standard is influenced by many factors. These factors include statutory

requirements, normal farming practices, and from what would be expected of a reasonable

person. Further comments will follow regarding the standard of care.

To complete the negligence law description, a plaintiff must also show that the defendant's

failure to provide the standard of care resulted in some injury to the plaintiff. Therefore, there

must be a breach of the standard of care and there must be some real injury or loss to the

plaintiff.

There are many examples ofnegligence claims in agriculture. One example is a successful claim

where a defendant applied a weed pesticide that mixed with run-off water and ran on to the

plaintiff s land due to the contours of the land. The Court held that the defendant owed a duty of

care to the neighbour and that the standard of care included ensuring that the run-off

contaminated with the pesticide would not enter the plaintiffs land. The Court found the

defendant liable when he breached the standard of care and caused loss to the plaintiff.2

The issue here is how environmental farm plans will influence the standard of care. in negligence

claims involving agriculture. The standard of care in negligence claims is influenced by many

factors. Statutory provisions, including statutory duties and regulations have influenced the

standard of care for some time. Courts have recognized that government regulations of

economic activity can influence the standard of care. In most cases, a government regulation

prescribing a higher standard of conduct may increase the standard of care on those persons who

undertake activity in the prescribed area.

2 Melito v. Lenbro Holdings Ltd., (1983), 13 C.E.L.R. 37 (Ont. Co. Ct.).


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For an example of how Courts have used regulations to influence the standard of care in other

tort areas see the case of Housen v. Nikolaisen. 3

The environmental farm plan program is not currently a government regulation. The program is

voluntary for farmers. However, it is possible for a plaintiff to suggest to a Court that the

existence of the environmental farm plan program is a factor in the standard of care. For

example, if a claim were made against a farmer for environmental damage resulting from his

agricultural operation, it would be argued that the lack of an environmental farm plan by the

farmer is a breach of the standard of care. A plaintiff who suffered damage from environmental

pollution will certainly argue that every farmer should have an environmental farm plan.

The existence of the environmental farm plan program and its promotion by the government may

amount to the same thing as a mandatory environmental farm plan regulation when it comes to

the standard of care. If the farmer has an environmental farm plan, or, if a farmer has an

environmental farm plan and has carried out his action plan, he will be less likely to be found in

breach of a standard of care. These issues regarding environment farm plans and the standard of

care will eventually find their way into Court discussions about negligence claims against

farmers.

2. Nuisance

Nuisance is a cause of action that is based on a landowners right to the use and enjoyment of his

land without interference by others. Nuisance occurs when a plaintiff can show that a defendant

caused unreasonable interference with the plaintiff's use and enjoyment of the plaintiff's land.

In agriculture for example, nuisance can occur as a result of error or water pollution from

livestock manure or a pesticide application. Once a plaintiff shows that his use and enjoyment of

his land has been interfered with, the onus is on the defendant to show that the defendant"

activity was not unreasonable. Due diligence, which will be discussed later, is not generally a

defence to a nuisance claim.

3 189 Sask. R. 51 (Sask. C.A.), CA 00002.


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) An example of a successful nuisance action in agriculture is where an offensive odor from a

piggery was held to be a nuisance.4 The actions of a defendant which caused flooding on a

plaintiff s property have also been held to create a nuisance. The defendant was ordered to

restore the watercourse to its natural state and damages were awarded to the plaintiff to

compensate for crop loss.5

Many provinces have modified the common law to protect agricultural operations from nuisance

claims. This is known as "right to farm" legislation. This legislation generally protects farmers

from unwarranted nuisance claims through the establishment of review boards that work to

resolve private nuisance claims directly between the parties.

The Agricultural Operations Act, R.S.S. 1978, c. A-12.1, contains provisions that may offer

farmers some limited protection from nuisance claims arising from their agricultural operations.

Such claims are subject to a review by the agricultural operations board before any nuisance

claims can be advanced. The relevant sections of the Act are:

"2(i) "normally accepted agricultural practice" means an agriculturalpractice that:

(i) is conducted in a prudent and proper manner that is consistent withaccepted customs and standards followed by similar agriculturaloperations under similar circumstances, including the use of innovativetechnology or advanced management practices in appropriatecircumstances;

(ii) is conducted in conformity with any standards established pursuant to theregulations; and

(iii) meets accepted standards for establishment and expansion;

)4 Sullivan v. Desrosiers, (1986),40 C.C.L.T. 66, 76 N.B.R. (2d) 271 (C.A.).5 Vancise v. Schubert, (1983), 13 C.E.L.R. 26 (Sask. c.A.).


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PART IIAgricultural Nuisance Provisions

PROTECTON FROM NUISANCE CLAIMS

Protected3(1) The owner or operator of an agricultural operation is not liable to any person innuisance with respect to the carrying on of the agricultural operation, and may not beprevented by injunction or other order of any court from carrying on the agriculturaloperation on the grounds ofnuisance where the owner or operator uses normally acceptedagricultural practices with respect to the agricultural operation.

(2) Subsection (l) does not protect a person who fails to comply with arecommendation of the board pursuant to section 17 within the time specified in therecommendation.

(3) The protection provided by subsection (1) applies notwithstanding the occurrenceof one or more of the following:

(a) a change in the ownership of the land or buildings on or in which theagricultural operation is situated;

(b) the transfer of the agricultural operation;(c) a change in the use of land or buildings near to the land or buildings on or in

which the agricultural operation is carried on.

Onus4 The onus of proving that the agricultural operation is causing nuisance arisingfrom practices that are not consistent with normally accepted agricultural practiceslies on the plaintiff or claimant where the plaintiff or the claimant in an action orproceeding against an operator claims:

(a) damages in nuisance with respect to the agricultural operation; or(b) an injunction or other order preventing the continuing operation of the

agricultural operation on the grounds of nuisance."


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How will environmental farm plans fit into this legislation? It will now be considered a normally

accepted agricultural practice to have an environmental farm plan. It will now be necessary to

have an environmental farm plan to claim that you are following normally accepted agricultural

practices. The action plans to deal with environmental risks will also become part of normally

accepted agricultural practices. The existence and availability of environmental farm plans will

have to be considered in any potential claims involving The Agricultural Operations Act. For a

good judicial consideration of similar legislation, see Pyke v. Tri Gro Enterprises Ltd.6

B. Criminal Law

The area of criminal law involves protecting the public or public goods or the public interest by

imposing fines or jail for bad behavior. It involves prosecution by the government of persons

charged with such bad behavior. Governments have created criminal law offences for pollution

and environmental damage.

1. The Statutory Law of Pollution

Federal and provincial governments have passed laws to control pollution of natural resources.

The definitions of pollution and the adverse effects caused by pollution are very broad and the

definitions vary in each provincial jurisdiction. As farming makes extensive use of natural

resources, farmers need to be aware of the statutes concerning pollution. The penalties of

pollution can be very costly, including fines and jail terms, and this makes this law part of what

is known as criminal law or quasi-criminal law.

Offences under environmental legislation are generally considered to be public welfare offences.

As such, they fall into a category of offences considered to be "strict liability" offences. This

means that liability under the legislation will not require proof that the defendant intended the

consequences of their actions. A defendant will be guilty of the pollution offence if they

intended to do the action complained of.

) 62001 Can LlI 8581 (ON C.A.), (2001), 204 D.L.R. (4th) 400.


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2. Due Diligence

It is possible to establish a defence to the strict liability charge if a farmer can establish that they

acted with due diligence in the matter involved. A defence of due diligence allows a person to

show that they use reasonable care under the circumstances to prevent the harm.

In considering the defence of due diligence in an environmental prosecution, a Court will

consider a number of factors to assess whether reasonable care was used under the

circumstances. These factors include:

1. acceptable standards in the industry and whether they were followed;

2. the nature and gravity of the environmental harm;

3. the forseeability of the harm, including atypical sensitivity;

4. available alternative solutions;

5. legislative and regulatory compliance;

6. character of the neighbourhood;

7. the efforts made to address the problem and matters beyond control;

8. the expected skill level of the defendant;

9. preventative practices;

10. economics; and

11. any actions taken by officials.7

7 Robert S. Fuller & Donald E. Buckingham, Agriculture Law in Canada, (1999 Butterworths Canada Ltd.) at 133.


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) Courts in Canada have considered the due diligence offence in a number of environmental

prosecutions. In 1983, the Yukon Territorial Court considered the due diligence defence in a

prosecution under the Fisheries Act. In R. v. Plasser Developments Ltd.s, the Court rejected the

defence of due diligence when the defendant company was charged with permitting the pollution

of water frequented by fish by a leak of diesel oil from its fuel system. The Court considered

many aspects of the due diligence defence and rejected the defence. The Court ordered a type of

environmental audit as part of the sentencing. This early case was subsequently followed by

other Courts in Canada.

Another early important case is R. v. Commander Business Furniture Inc.9 The Ontario Court of

Justice (Provincial Division) convicted the defendant after considering the defence of due

diligence. The defendant company did a number of things to try eliminate odors from a painting

operation but they were ultimately convicted under the Environment Protection Act because they

prioritized their economic interests over the interests of their neighbours when control of the

odors proved expensive. Another case from the Ontario Court of Justice, R. v. BatalO, resulted in

a conviction under the Ontario Water Resources Act. The defence of due diligence was rejected

when chemical waste stored in leaking drums was seeping into ground water on their property.

The sentencing was interesting as it included an Order for an environmental audit and

implementation of the audit's recommendations. It is now quite likely that any convictions for

environmental offences involving agricultural operations will now include a sentencing Order for

an environmental farm plan.

The preparation of an environmental farm plan would be an important positive element in raising

a defence of due diligence. If a farmer is charged with an environmental offence, the ability to

show that the farmer completed an environmental farm plan, and followed through on the risk

reducing activities identified in the plan, would help to establish the defence of due diligence and

avoiding conviction for the environmental offence. Thus, the environmental farm plan would

reduce the risk of criminal charges or conviction for environmental damage.

8 (1983) 13 CELR 42.9 [1992] 9CELR (N.S.) 185.


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IV. CONFIDENTIALITY AND PRIVILEGE

The term "confidential" is defined in Black's Law Dictionary as "something that is meant to be

kept secret". Most farmers would consider that the information in their environmental farm plan

is confidential. The information may be confidential in the sense that the review panel would

intend to keep the information secret and confidential from other people.

However, in our legal system, the only information that is clearly protected from disclosure in

Court is that information which is part of a privileged relationship. The relationship between a

lawyer and his client is the best example of a privileged relationship. In this solicitor-client

relationship, information that is obtained and provided to the solicitor for the purpose of enabling

the solicitor to give advice to the client is considered to be privileged and is not to be disclosed in

Court.

The real issue of confidentiality and privilege is when can information included III an

environmental farm plan be disclosed in Court. This would be most important III an

environmental prosecution against a farmer when the prosecutor would try to show that the

farmer had an environmental farm plan and failed to carry out the risk reduction steps identified

in the farm plan. When can the environmental farm plan information be involuntarily taken from

a farmer and used in Court against him?

The general law is that even though information may be considered confidential by the person

that created it, it will not be privileged and protected from use in Court unless it is part of a

privilege relationship. Therefore, an environmental farm plan will never be privileged and

protected from use in Court, unless it was somehow prepared and provided to a lawyer in order

to obtain advice from a lawyer.

10 (1992) 7 CELR (N.S) 245.


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) It would be possible for a farmer to exchange correspondence with a lawyer about environmental

risks generally prior to preparation of the environmental farm plan. Specifically, the lawyer

could provide the client with a letter requesting that the client prepare an environmental farm

plan and provide it to the lawyer for the purpose of enabling the lawyer to give the client legal

advice about environmental matters. This would then protect the environmental farm plan from

future disclosure in Court in any action against the farmer under the doctrine of privilege.

Some prOVInces have enacted legislation to protect any person who voluntarily discloses

information about non-compliance with environmental protection legislation where the

information was obtained through an environmental audit such as an environmental farm plan. ll

This legislation is not consistent across the country. It does not directly protect the

confidentiality of the information, but rather protects the farmer from the result of disclosure of

the information. This is an area of evolving law and policy across the country. The delivery

agents for environmental farm plans may have some influence in persuading governments to

protect farmers from having environmental farm plans used against the farmer.

)

11 Environmental Farm Plan Program - Evaluation ofLegal Implications, LJM Environmental Consulting,Wolfeville, Nova Scotia, December 23,2002.


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v. CONCLUSION

Environmental farm plans are a new feature of the business of agriculture in Canada. Although

the program is voluntary, Courts will have to recognize the existence of the environmental farm

program and fit the program into our legal structures. As the environmental movement gains

public support in Canada, our law will have to give greater significance to programs such as

environmental farm plans. This paper provides a brief guideline to the nature of environmental

farm plans and some ofthe legal issues involved.

Farming necessarily involves the risk of causing environmental damage. The law imposes

obligations on farmers to limit the risk and to be responsible for damage caused by these risks.

Environmental farm plans can play an important role in understanding these legal liabilities and

reducing the risks to the farm. The benefits of an environmental farm plan outweigh any risks

involved in creating an environmental farm plan.


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