( Disponible en anglais seulement )
“Right to farm” legislation has been enacted by every province in Canada. Although the various provincial acts have different names, the legislation is geared towards promoting agricultural use of land by restricting interference from neighbouring individuals who would otherwise be inconvenienced by the effects of agricultural processes that can be viewed as causes of annoyance, inconvenience, or discomfort such as noise, vibrations and, most commonly, odour.
Prior to the enactment of right to farm legislation, neighbours who were inconvenienced by agricultural operations had to seek redress through the common law and the tort of private nuisance. Private nuisance also serves to protect individuals with a proprietary or possessory interest in land, and protects individuals from indirect and continuing interference from neighbouring lands with the intention of striking a balance between the conflicting claims of landowners while giving each party the ability to enjoy their own land without the enjoyment of one subverting the other. To this end, early courts ruled that no use of land was reasonable if it produced substantial discomfort to others or materially damaged their property.
As cities grow, and as once previously isolated farms receive new neighbours, these new neighbours may not always appreciate the agricultural processes occurring next door. Right to farm legislation overrides the common law and provides limited protection to farmers from private nuisance lawsuits, so long as certain conditions are met. Generally, legislation typically requires that farmers either abide by environmental regulations or follow generally accepted farming practices.
In Alberta, the Agricultural Operation Practices Act uses “generally accepted agricultural practices” as the criteria to determine whether an agricultural process is permissible. A “generally accepted agricultural practice” is a practice that is conducted in a manner consistent with appropriate and accepted customs and standards as established and followed by similar agricultural operations under similar circumstances.
In Alberta, the onus is on the individual aggrieved by the odour, noise, dust, smoke, or other disturbance resulting from an agricultural operation to prove that the farmer is not following generally accepted agricultural practices. An aggrieved individual should first contact the Farmer’s Advocate Office. If the Farmer’s Advocate Office is unable to resolve the matter, the next step is for the aggrieved party to contact the Minister of Agriculture and Food and request that the Minister establish a Practices Review Committee. This application must be in writing and contain a statement of the nature of the disturbance, the name and address of the applicant, any steps taken by the applicant to resolve the disturbance, the location of the agricultural operation, the name and address of the aggrieved party and, if known, the name and address of the owner or operator.
The Minister has the discretion to refuse the application if the application is without merit, frivolous, vexatious, has already been considered by a Practice Review Committee, is currently the subject of a review, was not made in good faith, or the aggrieved individual lacks a significant connection to the subject-matter of the application.
If the application is valid, a Practice Review Committee will be formed. A Practice Review Committee consists of three members, with two of the members having experience in the type of agricultural activity relating to the complaint. The Practice Review Committee is formed with the ultimate goal of assisting the parties reach their own mutually acceptable settlement. If the matter is not resolved, they may make recommendations to the Minister as to what constitutes a generally accepted agricultural practice. Keep in mind that it is up to the individual farmer to defend their actions to the Practice Review Committee.
Farmers can take a number of steps to ensure that they do not become the subject of a review or a nuisance lawsuit. First and foremost, a proactive approach is the best approach. Meeting with neighbours and keeping them apprised of potential disturbances while using the best available practices serves as worthwhile preventative maintenance. Second, if a problem does arise, having detailed records of what has already occurred can go a long way. Finally, if it appears as if there is going to be a problem, the Act allows the farmer to request a review by a Practice Review Committee. If best practices are being followed and the farmer is likely to be successful, this can represent sound pre-emptive action.