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Eleven years after the landmark Spraytech case, how far have municipalities been able to go in regulating environmental impacts of federally and provincially regulated activities? The people who must live closest to a resource or energy project often turn to their municipalities to protect them from health and environmental harm. Some municipalities have therefore adopted, or are considering, bylaws to prohibit or control unpopular activities such as sludge spreading, pig farms, power plants or fracking. Every opinion on the validity of such bylaws starts with the Supreme Court of Canada’s 2001 decision in 114957 Canada Ltée (Spraytech, Société d’arrosage) v. Hudson (Town). In Spraytech case, the SCC upheld the right of the Town of Hudson to restrict the cosmetic use of pesticides, in order to protect human health of its residents. This decision was extraordinary for at least three reasons (aside from the ability of a small municipality to take on the well funded pesticide lobby):

  1. Pesticides are already intensely regulated by the federal and provincial governments, specifically to protect human health. Municipalities have not historically been permitted to interfere in senior governments’ regulatory schemes, and
  2. Hudson did not have any express statutory power to regulate pesticides. It relied on its general “basket” power to “secure peace, order, good government, health and general welfare in the territory of the municipality,” a power that is rarely given much force.
  3. The provincial Pesticides Act stated that its provisions would prevail over any inconsistent provision of any bylaw. Amazingly, the Court interpreted this to mean that Act contemplated the existence of municipal regulation, and allowed municipalities to co-regulate so long as there was no direct conflict, i.e. if it were impossible to comply with both the by-law and the federal or provincial law.

The Court also recognized  that local laws may be best for local issues.   law-making and implementation are often best achieved at a level of government that is not only effective, but also closest to the citizens affected and thus most responsive to their needs, to local distinctiveness, and to population diversity. If pesticides can be regulated by municipalities using their general power, why not everything else that adversely affects local health? Surprisingly, there have been no other cases since Spraytech where municipalities have successfully used their  general power to control an activity authorized by the federal or provincial governments. (The Oakville power plant bylaw was politically successful, but didn’t have to withstand a legal attack.)

Special statutes come first

Most cases since Spraytech have turned on special statutory powers for municipalities to regulate local activities. In Darvonda Nurseries Ltd. v. Greater Vancouver (Regional District), for example, the Region’s District Director successfully set more rigorous air quality standards for agricultural operations than the province-wide standard set in the provincial Agricultural Waste Control Regulation. The District adopted an air quality by-law pursuant to the Environmental Management Act, which allowed it to issue air contaminant discharge permits “subject to requirements for the protection of the Environment.” Darvonda Nurseries, which was in compliance with the more permissive provincial standards, applied for a Regional permit to discharge air contaminants from the wood-fired boilers used to heat its greenhouses. The Regional permit was significantly more stringent. Darvonda Nurseries appealed, arguing that it was exempt from the by-law standards because it complied with provincial standards. The court concluded that the Environmental Management Act was intended to give the District authority to regulate the discharge of air emissions within its boundaries differently than in the rest of the province. Nothing in the Regulation specifically restricted the authority of the District to impose more stringent air emission limits, and it was possible for Darvonda to comply with both municipal and provincial standards. In contrast, some federal or provincial statute or regulations specifically bar municipalities from some types of regulation. In those cases, municipalities can’t rely on Spraytech to expand their powers. For example, in Peacock v. Norfolk (County) , the province clearly intended to preclude municipal regulation of manure spreading near municipal wells. Hog farmers were therefore able to expand their hog farming operation despite the municipal well water setback requirement, intended to protect municipal drinking water from contamination.  The Ontario Superior Court of Justice concluded that the bylaw was superseded by the Provincial Nutrient Management Act regulations. Section 61(1) of the Act provided that a regulation under that Act superseded a by-law if the by-law addressed the same subject matter as the regulation.

If no special statutes?

Even without specific statutory bars, bylaws may be invalid if they would  “displace or frustrate” the purpose of the federal or provincial law, i.e. interfere with it too much:   While enabling provisions that allow municipalities to regulate for the “general welfare” within their territory authorize the enactment of by-laws genuinely aimed at furthering goals such as public health and safety, it is important to keep in mind that such open-ended provisions do not confer an unlimited power. Rather, courts faced with an impugned by-law enacted under an “omnibus” provision … must be vigilant in scrutinizing the true purpose of the by-law. In this way, a municipality will not be permitted to invoke the implicit power granted under a “general welfare” provision as a basis for enacting by-laws that are in fact related to ulterior objectives, whether mischievous or not.   An absolute ban on all pesticide use would not have been permissible but as the by-law only limited the cosmetic (i.e. unnecessary) use of pesticides, it was upheld. On the other hand, the Peacock bylaw would have been struck down even without s. 61(1): The by-law in this case attempts to change the comprehensive siting provisions of the provincial legislation. This is not an enhancement of the provincial legislation, and since it professes to alter the siting provisions of the statute, it is repugnant to the provincial statute. It both deals with the same subject and matter as the provincial legislation, and conflicts with it. The by-law is restrictive, prohibitive and nullifies the comprehensive code for management of nutrients in the Nutrient Management Act, 2002. It is therefore at cross-purposes with the provincial statute and regulation.

Bottom line

Spraytech has opened the door to  municipal bylaws to control local environmental harm, but not very far. If there is no special statute either permitting or forbidding municipal action, municipalities may be able to act, but only if they do not “displace or frustrate” federal and provincial regulatory schemes. Anti fracking bylaws, for example, probably can’t ban all fracking, but may be able to prohibit the injection of toxic substances near valuable and important aquifers. Above all, municipal bylaws must be measured, tied directly to particular local harms, and minimize interference with the senior government regulatory framework.

First published in Municipal World

PS, and yes, we do think municipalities can, and should, ban shark fin soup!

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