Right to Farm Legislation in Canada: Exceptional Protection for Standard Farm Practices

32 Pages Posted: 7 Oct 2018

See all articles by Laura Alford

Laura Alford

McGill University - Faculty of Law

Sarah Berger Richardson

University of Ottawa - Civil Law Section

Multiple version iconThere are 2 versions of this paper

Date Written: September 5, 2018

Abstract

Right to farm legislation (RTF) emerged during the 1970s and 80s in response to land-use conflicts during the post-war period between a rapidly-industrializing agricultural sector and developing residential and commercial peri-urban and rural areas. The primary function of RTFs is to create legislative protection for farmers against civil liability for nuisance for operations with adverse off-site impacts and, in some cases, to shield agri-food production from the enforcement of municipal bylaws. RTFs block litigation through the common law of nuisance in one of two ways: (1) either the dispute must first be addressed to provincial administrative board; or (2) the statute directly bars liability if the practice in question conforms to a legislatively-defined standard. In general, RTFs replace the civil fault standard with the standard of adherence to “normal” or “standard” farm practices. This paper examines the justification for and legitimacy of RTF legislation in Canada today. The paper begins with a presentation of the history of RTFs in Canada. It goes on to describe how adherence to “normal” or “standard” farm practices has been legislatively defined and interpreted by administrative boards. The paper then raises normative concerns about how normalcy has been defined to-date, especially in relation to accepted industry practices that are unsustainable and even harmful. Procedural concerns are also raised about RTFs replacing civil litigation with administrative procedures and mediation. The paper concludes with recommendations for addressing these normative and procedural concerns.

Suggested Citation

Alford, Laura and Berger Richardson, Sarah, Right to Farm Legislation in Canada: Exceptional Protection for Standard Farm Practices (September 5, 2018). Ottawa Law Review, Vol. 50, No. 1, Forthcoming , Available at SSRN: https://ssrn.com/abstract=3249649

Laura Alford (Contact Author)

McGill University - Faculty of Law ( email )

3644 Peel Street
Montreal H3A 1W9, Quebec
Canada

Sarah Berger Richardson

University of Ottawa - Civil Law Section ( email )

57 Louis Pasteur Dr
Ottawa
Canada

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