Grain Farmers of Ontario Neonic Appeal Dismissed

The Court of Appeal for Ontario has dismissed the appeal by the Grain Farmers of Ontario ("GFO") related to its challenge of Ontario's neonicotinoid regulations.  As noted by the Court, GFO was concerned that the regulation was unworkable, would produce little benefit, and would significantly impair the ability of grain farmers to protect their crops from damaging insects.  However, the Court of Appeal has ruled that the regulation is not ambiguous and that GFO has not identified a genuine dispute about the rights and obligations of farmers - "to grant the remedy that GFO seeks would be tantamount to amending a regulation through interpretation, a remedy well outside the court's discretionary power to order declaratory relief."

The Court of Appeal found that the motion judge (who originally dismissed GFO's application) was correct to strike the application on the basis that it presented no genuine issue for determination. Even if, as GFO pleaded, the regulation creates financial hardship, is futile, and provides little environmental benefit, "neither the wisdom nor the efficacy of a regulation is a justiciable issue."  The remedies sought by GFO are "solely within the powers of the legislative and executive branches of government."

Thankfully for grain farmers, the Court did not order costs of the appeal against GFO. While GFO will likely be responsible for the costs of its own lawyers, it won't have to pay the costs of the government's lawyers.

Read the decision at: Grain Farmers of Ontario v. Ontario (Environment and Climate Change).

NEB confirms that no standards exist for maintenance of depth of cover over pipelines after installation

The National Energy Board ("NEB") has just released its report into its investigation of various whistleblower allegations made against TransCanada PipeLines Limited (read the report here).  I haven't read through the report in full, but I was drawn to the section dealing with inadequate cover over a pipeline.  In its observations, the NEB notes that:

"Other than during the design and initial installation of the pipeline, CSA does not address requirements for maintaining the depth of cover during the life of the pipeline.  In a general sense, OPR section 6.5(1)(e) requires companies to: identify the hazards and potential hazards; assess the risk associated with those hazards; and implement controls to prevent, manage and mitigate those hazards.  TransCanada has recognized the low depth of cover as a hazard, has assessed the consequence of a hazard to be low because the site was in an unused, fenced in pasture area and has mitigated the risk by installing fencing to secure the site."

In other words, there is no regulation in place for NEB-regulated pipelines with respect to the depth of cover that must be maintained over a pipeline.  Once a pipe is installed, it is left to the company to determine what depth must be maintained over a pipeline to avoid potential hazards.  For people who have read through the CSA Standards applicable to pipelines (which requires an expensive licence), this gap in regulations was obvious.  In some cases, landowner groups have successfully negotiated agreements with pipeline companies requiring maintenance of depth of cover over pipelines to a specific minimum depth and requiring the payment of compensation where restrictions on land use are imposed.  But what about everyone else with a pipeline on their lands?

Isn't depth of cover an important enough component of pipeline safety that it should be the subject of specific prescriptive regulations?

From the Environmental Registry: Updating the Schedule of Noxious Weeds in Ontario

Regulation Proposal Notice: Updating the Schedule of Noxious Weeds in R.R.O. 1990, Regulation 1096 - General made under the Weed Control Act, R.S.O. 1990, c. W-5.

Description of Regulation:

The Weed Control Act and Regulation 1096 prohibit listed noxious weeds from being grown where they have the potential to negatively affect agricultural land. The list in the regulation’s Schedule of Noxious Weeds is outdated. Proposed revisions include the removal of nine weeds that are no longer considered to be significant threats to agriculture or horticulture in Ontario and the addition of nine new weeds that are considered emerging threats to the agriculture industry within Ontario.

Purpose of Regulation:

The Schedule of Noxious Weeds in Regulation 1096 includes nine weed species that are no longer considered to be significant threats to agriculture or horticulture in Ontario. Designating some of these plant species as noxious weeds may be in conflict with conservation initiatives, most notably the restoration and conservation of habitat to support pollinator health. The nine plant species can be managed through modern management practices upon farmed land.

It is proposed that the following species currently listed in the Schedule of Noxious Weeds under R.R.O. 1990, Regulation 1096 be removed:

1. Colt’s-foot (Tussilago farfara L.)
2. Dodder spp. (Cuscuta spp.)
3. Johnson grass (Sorghum halepense (L.) Persoon)
4. Black-seeded proso millet (Panicum miliaceum L. (black-seeded biotype))
5. Yellow rocket (Barbarea spp.)
6. Cypress spurge (Euphorbia cyparissias L.)
7. Leafy spurge (Euphorbia esula L. (complex))
8. Russian thistle (Salsola pestifer Aven Nelson)
9. Tuberous vetchling (Lathyrus tuberosus L.)

Removing some of the above weed species from the Schedule of Noxious Weeds would demonstrate support for sustaining biodiversity in Ontario. Some species, such as Colt’s-foot and yellow rocket, are also known to attract pollinating insects, such as bees.

The Schedule of Noxious Weeds in Regulation 1096 has not been subject to a comprehensive update for many years. Nine weed species have been identified that are considered to be emerging threats to the agriculture industry in Ontario. Some of the species recommended for addition have previously caused large losses in crop revenues in other jurisdictions (e.g., kudzu) and are of growing concern to Ontario farmers.

It is proposed that the following weed species are added to the Schedule of Noxious Weeds:

1. Smooth bedstraw (Gallium mollugo (L.))
2. Wild chervil (Anthriscus sylvestris)
3. Common crupina (Crupina vulgaris Cass.)
4. Jointed goatgrass (Aegilops cylindrical Host)
5. Kudzu (Pueraria lobata)
6. Wild parsnip (Pastinaca sativa)
7. Serrated tussock (Nassella trichotoma)
8. Tansy ragwort (Senecio jacobeae)
9. Wolly cup grass (Eriochloa villosa (Thunb.) Kunth)
These proposed changes would support initiatives related to invasive alien species control, biodiversity, and the environment.

Public Consultation:

This proposal has been posted for a 33 day public review and comment period starting September 26, 2014. If you have any questions, or would like to submit your comments, please do so by October 29, 2014 to the individual listed under "Contact". Additionally, you may submit your comments on-line.
All comments received prior to October 29, 2014 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 this notice and reference EBR Registry number 012-2634.
Please Note: All comments and submissions received will become part of the public record. You will not receive a formal response to your comment, however, relevant comments received as part of the public participation process for this proposal will be considered by the decision maker for this proposal.

Contact:

All comments on this proposal must be directed to:

Mike Cowbrough
Weed Management Field Crops Program Lead
Ministry of Agriculture, Food and Rural Affairs
Economic Development Division
Agriculture Development Branch
Field Crops - University of Guelph Office
50 Stone Road East
Crop Science Building, University of Guelph
Guelph Ontario
N1G 2W1
Phone: (519) 824-4120 Ext. 52580

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.