Is clearing of trees a normal farm practice?

The Supreme Court of British Columbia is going to be dealing with the question of whether a farmer can be restrained from clearing trees on his property in spite of normal farm practices legislation.  A B.C. farmer purchased a Nanaimo property in 2006.  In December, 2005, the Regional District of Nanaimo had registered against title to the property a restrictive covenant that prohibits the removal of any vegetation from a 30 metre wide strip along the boundary of the property with an adjacent road.  After the farmer began to clear trees, Nanaimo sued under the restrictive covenant, and also applied for a pre-trial injunction to prohibit any further clearing.

The Supreme Court granted the injunction as requested.  In the course of deciding the injunction application, the Court examined the defences put forward in the action by the farmer.  The main defence appears to be that the farmer has not breached the covenant since it is invalid by reason of non-compliance with the Agricultural Land Commission Act, s. 22(2) and the Farm Practices Protection (Right to Farm) Act, s. 2(1).  The farmer claims that his clearing activities were farm operations.

We will have to wait and see what the Supreme Court makes of this argument and what implications its decision may have on similar situations in the future.

Read the decision at: Regional District of Nanaimo v. Buck.

OMAFRA proposing amendments to Drainage Act Referee Rules of Practice

From the Environmental Bill of Rights Registry:

The Ontario Ministry of Agriculture, Food and Rural Affairs (OMAFRA) is proposing amendments to R.R.O. 1990, Regulation 275 “Rules of Practice and Procedure to be Followed in All Proceedings Before the Referee” under the Drainage Act. The current version of Regulation 275 dates from 1990 and the proposed amendments intend to update, clarify and generally improve the regulation.

The Drainage Act provides three bodies to which a landowner may appeal when a drainage works is being proposed or improved. The appeal bodies are the Court of Revision, the Agriculture, Food and Rural Affairs Appeal Tribunal, and the Drainage Referee.

The Drainage Referee hears appeals on the legal aspects of drainage work as well as appeals from a decision of the Tribunal. The legal procedures before the Referee are formal. Regulation 275 sets out the procedural rules that must be followed in a matter held before the Drainage Referee. Proposed amendments include:

• Rewording to provide clarification and avoid ambiguity
• Removal of superfluous text and unnecessary and obsolete sections
• Updated terminology and timeframes to reflect present uses in proceedings
• Additional subsection requiring parties to attend a pre-trial conference where parties may resolve the issue before it goes to trial

This proposal has been posted for a 45 day public review and comment period starting March 29, 2012.  Comments or questions can be submitted by May 13, 2012 to:

Sid VanderVeen
Coordinator
Ministry of Agriculture, Food and Rural Affairs
Food Safety and Environment Division
1 Stone Road West
Floor 5 NW
Guelph Ontario
N1G 4Y2
Phone: (519) 826-3552
Fax: (519) 826-3259

Comments can be submitted on-line at: Comments.

All comments received prior to May 13, 2012 will be considered as part of the decision-making process by the Ministry of Agriculture, Food and Rural Affairs if they are submitted in writing or electronically using the form provided in the notice and reference EBR Registry number 011-5985.

MOE moving more industries into Environmental Activity and Sector Registry

From the Environmental Bill of Rights Registry:

The Ministry of the Environment has recently implemented an Environmental Activity and Sector Registry (EASR) that allows businesses to register certain activities with the Ministry (rather than seeking an Environmental Compliance Approval, formerly known as a Certificate of Approval). The EASR is a public, web-based system where people engaging in selected activities will be required to register the activity and to meet eligibility and operating requirements set out in regulation, rather than seeking an approval through the normal application submission and review process. These requirements could be comprised of, but not limited to, design requirements, pollution control measures and best management practices. The Ministry will enforce compliance with the EASR regulation according to our compliance strategy, as it does for all its approvals today.

To date, activities relating to the following have been added to the registry: automotive refinishing (autobody shop spray booths), comfort heating systems and stand-by power systems. Registry requirements for these activities/sectors are described in Ontario Regulation 245/11 under the Environmental Protection Act.

As part of the Ministry’s ongoing work to implement a new environmental approvals program, additional activities and sectors are being evaluated for their potential inclusion on the EASR. This work involves comprehensive technical analysis and two periods of public consultation to ensure registry activities are developed in a transparent and science-based manner and that the resulting registry rules are protective of the environment.

To encourage localized generation from smaller, cleaner sources of electricity and community-based renewable energy facilities, the Ministry is proposing to allow specific small scale renewable energy projects to register on the EASR. The proposed EASR eligibility criteria for small scale renewable energy facilities are designed to eliminate potential impacts to the environment through facility design and siting restrictions.

Process for Developing Registry Regulations

When developing a regulation to include a new activity/sector on the EASR, the Ministry undertakes a comprehensive technical analysis and consultation process. This process contains the following steps:

1. Detailed scoping and technical assessment of activity/sector
   
   • Engineering analysis
   • Risk evaluation and modelling
   • Jurisdictional review
   • Evaluation of local concerns/complaints and past administrative non-compliance with requirement to obtain an approval
2. Development of draft registry requirements
   
3. Public consultation on a technical report describing draft requirements (the reports included in this posting)
   
4. Development of a draft regulation
   
5. Public consultation on a draft regulation
   
6. Finalizing of regulation and implementation

It is important to note that, while Steps 3 and 5 specifically provide for broad public input through comment on postings on the Environmental and Regulatory Registries, the Ministry is also engaging at various levels with relevant interested groups (industry, associations, Aboriginal organizations/communities and technical specialists).

The following technical reports summarize the proposed rationale for moving specific activities and sectors from the Renewable Energy Approvals (REA) process to the registration process.

1. Technical Report on Proposed Environmental Activity and Sector Registry (EASR) Requirements: Small Ground-Mounted Solar
2. Technical Report on Proposed Environmental Activity and Sector Registry (EASR) Requirements: On-Farm Anaerobic Digestion
3. Technical Report on Proposed Environmental Activity and Sector Registry (EASR) Requirements: Landfill Gas Electricity Generation

This proposal has been posted for a 45 day public review and comment period starting April 02, 2012. Comments or questions can be submitted by May 17, 2012 to:

Chris Goode
Senior Advisor
Ministry of the Environment
Environmental Programs Division
Modernization of Approvals Project
135 St. Clair Avenue West
Floor 4
Toronto Ontario  M4V 1P5
Phone: (416) 325-7893

Comments can be submitted on-line at: Comments.

All comments received prior to May 17, 2012 will be considered as part of the decision-making process by the Ministry of the Environment if they are submitted in writing or electronically using the form provided in this notice and reference EBR Registry number 011-5695.

Federal Cabinet will have power to approve projects denied by NEB

Read the CBC News article at: "Cabinet to get final say on pipeline projects": Little-noticed change to send all National Energy Board decisions to federal cabinet for review.

Farmer recovers damages from trucker for fertilizer contamination of canola

The Provincial Court of Saskatchewan has ruled in favour of a farmer who claimed damages against a trucking firm after a load of his canola was discounted by a feed processor due to fertilizer contamination.  There were five loads of canola being trucked to Cargill.  The fourth load was rejected because it was contaminated with fertilizer.  The canola then had to be sold to the feed processor at a discount.

The issue in the case was this: was there proof on a balance of probabilities that the trucking company contaminated the fourth load of canola taken from the Plaintiff's farm?  The Court found that there was proof.  The Court rejected a claim that the contamination came from a fertilizer bin on the Plaintiff's farm.  The farmer was granted judgment in the amount of $5,936.68.

Read the decision at: Zuchkan v Biggar Transport (2006) Ltd.

OPA FIT Program Webinar - April 17, 2012

Here is the notice from the OPA:

You are invited to participate in a webinar to learn more about the revised FIT Program. This session will focus solely on the revised FIT Program materials posted on the FIT website and will describe how you can provide feedback on the draft FIT rules, contract and standard definitions.

Below are the details about the session and how you can participate. For this session we will be taking web questions only. By logging onto the weblink, you will be able to view and listen to the presentation and submit your questions. 

Date: April 17, 2012

Time: 1:00 – 2:00 p.m. (ET)
Web URL: http://www.snwebcastcenter.com/event/?event_id=2739
Toll Free Number:  1-866-212-4491

An archive will be posted to the FIT website shortly after the session.

We look forward to your participation in the session.

 
Ontario Power Authority

OPA MicroFIT Webinar - April 13, 2012

Here is the notice from the Ontario Power Authority:

You are invited to participate in a webinar to learn more about the revised microFIT Program. This session will focus solely on the revised microFIT Program materials posted on the microFIT website and will describe how you can provide feedback on the draft microFIT rules, contract and eligible participant schedule.

Below are the details about the session and how you can participate. For this session we will be taking web questions only. By logging onto the weblink, you will be able to view and listen to the presentation and submit your questions. 

Date: April 13, 2012

Time: 10:00 – 11:00 a.m. (ET)
Web URL:  http://www.snwebcastcenter.com/event/?event_id=2732
Toll Free Number:  1-866-212-4491

An archive will be posted to the microFIT website shortly after the session.

We look forward to your participation in the session.

 
Ontario Power Authority

NEB Landowner "Satisfaction" Research

The National Energy Board (NEB) has released a report of its 2011 Landowner Survey, conducted by Ipsos Reid.  1,200 landowners were surveyed, out of 32,114 identified by records provided by NEB-regulated companies.  In the Key Findings section of the report, Ipsos Reid begins with the following peculiar result: "We find that 71% of landowners mention a company other than the one indicated in the sample records we received, suggesting that many landowners may not know who the correct company is."  For instance, 35% of Kinder Morgan landowners mentioned TransCanada as their company.

4% of respondents said they did not know where the pipeline was located on their property.  22% of respondents do not know whether the limit of their right of way is. 

It does not appear that any questions were asked about pipeline abandonment issues.

Read the report at: NEB Landowner Satisfaction Research October 2011.