Bill 28 — First Session, 25Th Legislature, 50 Elizabeth N the Legislative Assembly of Alberta Bill 28 Agricultural Operation Practices Amendment Act, 2001 (Legislature 25, Session 1)

L25 S1 119

Alberta — Bills

2001 BILL 28 First Session, 25th Legislature, 50 Elizabeth n THE LEGISLATIVE ASSEMBLY OF ALBERTA BILL 28 AGRICULTURAL OPERATION PRACTICES AMENDMENT ACT, 2001 MR. KLAPSTEIN First Reading ............................................................................................ Second Reading ........................................................................................ Committee of the Whole .......................................................................... Third Reading ...........................................................................................

Royal Assent................................................................... -• Title: 2001 (25th, 1st) Bill 28, Agricultural Operation Practices Amendment Act, 2001

Bill 28 Mr. Klapstein BILL 28 2001 AGRICULTURAL OPERATION PRACTICES AMENDMENT ACT, 2001 (Assented to , 2001) HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Alberta, enacts as follows: Amends sa The Agricultural Operation Practices Act is amended by 1987 cA'7 7 this Act. 2

Section 1 is amended (

a) by repealing clause (

a) and substituting the following: (a) “affected person” means, in

Part 2, a person or municipality determined in accordance with the regulations to be an affected person; (a.l) “agricultural land” means (

i) land the use of which for agriculture is either a permitted or discretionary use under the land use by-law of the municipality or Metis settlement in which the land is situated or is permitted pursuant to

section 643 of the Municipal Government Act, or (ii) land that is subject to an approval, registration or authorization; (

b) in clause (

b) by striking out “and” at the end of subclause (vni); 1

Explanatory Notes 1 Amends

chapter A-7.7 of the Statutes of Alberta, 1987. 2

Definitions.

Section 1 presently reads: 1 In this Act, (a) “agricultural land” means land the use of which for agriculture (

i) is either a permitted or discretionary use under the land use by-law of the municipality or Metis settlement in which the land is situated, or (ii) is permitted pursuant to

section 643 of the Municipal Government Act (b) “agricultural operation” means an agricultural activity conducted on agricultural land for gain or reward or in the hope or expectation of gain or reward, and includes (

i) the cultivation of land, (ii) the raising of livestock, including game-production animals within the meaning of the Livestock Industry Diversification Act and poultry, (Ui) the raising of fur-bearing animals, pheasants or fish, (iv) the production of agricultural field crops, 1 Explanatory Notes

(ii) in subclause (ix) by striking out “manure,”; (iii) by adding the following after subclause (ix): (

x) the collection, transportation, storage, application, use, transfer and disposal of manure, and (xi) the abandonment and reclamation of confined feeding operations and manure storage facilities; (

c) by adding the following after clause (b): (b.l) “apply manure” means to spread manure on, to spread manure on and incorporate manure into, or to inject manure into, agricultural land; (b.2) “approval” means an approval under

Part 2; (b.3) “approval officer” means a person appointed as an approval officer under

Part 2; (b.4) “authorization” means an authorization under

Part 2; (b.5) “Board” means the Natural Resources Conservation Board; (b.6) “confined feeding operation” means an activity on land that is fenced or enclosed or within buildings where livestock are confined for the purpose of growing, sustaining, finishing or breeding by means other than grazing, but does not include seasonal feeding and bedding sites; (b.7) “development permit” means a development permit issued pursuant to

Part 17 of the Municipal Government Act', (b.8) generally accepted agricultural practice” means 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, and without restricting the generality of the foregoing includes the use of innovative technology used with advanced management practices; (b.9) “inspector” means a person appointed as an inspector under

Part 2; 2

(

v) the production of fruit, vegetables, sod, trees, shrubs and other specialty horticultural crops, (vi) the production of eggs and milk, (vii) the production of honey, (viii) the operation of agricultural machinery and equipment, including irrigation pumps, and (ix) the application of fertilizers, manure, insecticides, pesticides, fungicides and herbicides, including application by ground and aerial spraying, for agricultural purposes; (c) “land use by-law” means a land use bylaw as defined in

Part 17 of the Municipal Government Act or a by-law respecting land use that is in effect in a Metis settlement; (d) “Minister” means the Member of the Executive Council charged by the Lieutenant Governor in Council with the administration of this Act; (e) “nuisance” includes an activity which (

i) arises from unreasonable, unwarranted or unlawful use by a person of the person’s own property which causes obstruction or injury to the right of another person or to the public and produces such material annoyance, inconvenience and discomfort that damage will result, (ii) creates smoke, odour, noise or vibration which interferes with the reasonable and comfortable use of a person’s property, or (Hi) is found to be a nuisance at common law. 2 Explanatory Notes

(

d) by adding the following after clause (c): (c.l) “livestock” means poultry, horses, cattle, sheep, swine, goats, bison, fur-bearing animals raised in captivity and game-production animals within the meaning of the Livestock Industry Diversification Act; (c.2) “manure” means livestock excreta, associated feed losses, bedding, litter, soil and wash water, but does not include manure to which the Fertilizers Act (Canada) applies; (c.3) “manure storage facility” means a storage facility for manure; (

e) by adding the following after clause (d): (d.l) “ministry” means ministry as defined in the Government Accountability Act', (d.2) “municipal development plan” means a municipal development plan within the meaning of the Municipal Government Act', (

f) by adding the following after clause (e): (f) “owner or operator”, when used with reference to an agricultural operation, means (

i) the owner and previous owner of an agricultural operation or the land where it is or was situated, (ii) every person who has or has had charge, management or control of an agricultural operation or the land where it is or was situated, (iii) any successor, assignee, executor, administrator, receiver, receiver-manager or trustee of a person referred to in subclause (

i) or (ii), and (iv) a person who acts as the principal or agent of a person referred to in subclause (i), (ii) or (iii); (

g) practice review committee” means an agricultural practice review committee appointed under

Part 1; 3

3 Explanatory Notes

(h) “registration” means a registration under

Part 2; (i) “seasonal feeding and bedding site” means an over-wintering site where livestock are fed and sheltered; (j) “working days” does not include (

i) Saturdays, (ii) Sundays, (iii) New Year’s Day, Alberta Family Day, Good Friday, Easter Monday, Victoria Day, Canada Day, Labour Day, Remembrance Day and Christmas Day, (iv) the birthday or the day fixed by proclamation for the celebration of the birthday of the reigning sovereign, (

v) December 26, or when that falls on a Sunday or a Monday, then December 27, (vi) any day appointed by proclamation of the Governor General in Council or by proclamation of the Lieutenant Governor in Council for a public holiday or for a day of fast or thanksgiving or as a day of mourning, and (vii) with reference to any particular part of Alberta, the day in each year that may by proclamation of the Lieutenant Governor in Council be appointed as a public holiday for that part of Alberta for the planting of forest or other trees; 3 The following is added before

section 2: 1.1

(1) An owner or operator who is required to create, submit or retain records (

a) by the regulations must do so in accordance with the regulations, or (

b) by an approval, registration or authorization must do so in accordance with the approval, registration or authorization. 4

3 Records. Heading. 4 Explanatory Notes

(2) A person shall not create, submit or retain a record that contains false or misleading information.

PART 1 NUISANCE 4

Section 2 is amended (

a) in subsection (1) (

i) in clause (

b) by striking out “made by the Minister under

section 3” and substituting “or an approval, registration or authorization”; (ii) in clause (

c) by striking out “practices for similar agricultural operations” and substituting “agricultural practice”; (

b) by adding the following after subsection (1):

(1.1) If subsection (l)(

a) is contravened but the contravention is authorized by an approval, authorization or registration; the approval, authorization or registration prevails over the land use by-law with which it conflicts. (

c) in subsection (3) by striking out “regulation” and substituting “regulation, approval, registration, authorization”. 5

Section 2 presently reads: 2(1) A person who carries on an agricultural operation and who, in respect of that operation, does not contravene any of the following: (

a) the land use by-law of the municipality or Metis settlement in which the agricultural operation is carried on; (

b) the regulations made by the Minister under

section 3; (

c) the generally accepted practices for similar agricultural operations; is not liable to any person in an action in nuisance resulting from the agricultural operation and shall not be prevented by injunction or other order of a court from carrying on the agricultural operation because it causes or creates a nuisance. (2) Subsection (1) continues to apply notwithstanding that 1 or more of the following occur: (

a) the land use by-law of the municipality or Metis settlement in which the agricultural operation is carried on changes; (

b) the ownership of the agricultural land on which the agricultural operation is carried on changes; (

c) the agricultural operation is carried on by other persons; (

d) the use of land adjacent to the land on which the agricultural operation is carried on changes.

(3) Where a plaintiff or claimant in a proceeding against a person who carries on an agricultural operation (

a) claims damages in nuisance resulting from the agricultural operation, or (

b) applies for an injunction or other order of a court preventing or restricting the carrying on of the agricultural operation because it causes or creates a nuisance, 5 Explanatory Notes

Section 3 is repealed and the following is substituted: Application re disturbance Referral Practice review committee 3(1) A person who is aggrieved by, or an owner or operator who is aware that a person is aggrieved by, any odour, noise, dust, smoke or other disturbance resulting from an agricultural operation may apply in writing to the Minister to request consideration of whether the disturbance results from a generally accepted agricultural practice.

(2) An application under subsection (1) must be in writing and must contain a statement of the nature of the disturbance, the name and address of the applicant, the location of the agricultural operation, the name and address of the owner or operator, if known, the name and address of the person who is aggrieved and the steps taken by the applicant, if any, to resolve the disturbance.

(3) The parties to an application are the applicant, the owner or operator or the person aggrieved and any other person the Minister considers appropriate.

(4) A person shall not commence an action in nuisance for any odour, noise, dust, smoke or other disturbance resulting from an agricultural operation unless an application has been made under this

section with respect to the disturbance at least 90 working days previously. 4 The parties to a referral under

section 39 are the Board and the persons to whom the enforcement order is directed. 5(1) On receipt of an application under

section 3 or a referral under

section 39 the Minister may (

a) refuse to consider the application or referral if, in the Minister’s opinion, (

i) the subject-matter of the application or refetral is frivolous or vexatious, 6

the onus of proving that the defendant contravened the land use by-law, regulation or practice referred to in subsection (1) is on the plaintiff or claimant, as the case may be.

(4) In an action in nuisance against a person who carries on an agricultural operation, a court may (

a) order the party that commenced the action to furnish security for costs in any amount the court considers proper; (

b) award party and party costs and solicitor and client costs or either of them. 5

Section 3 presently reads: 3 The Minister may make regulations respecting standards for the carrying on of agricultural operations. 6 Explanatory Notes

7 Explanatory Notes

8 Explanatory Notes

9 Explanatory Notes

10 Explanatory Notes

application was determined to be complete, for a determination whether the affected person, other person or organization or member of the public is a directly affected party.

(5) An applicant under subsection (4) must provide, on the request of an approval officer, further information relevant to the application.

(6) Despite subsection (4), the applicant for an approval or amendment and the municipalities that are affected persons are directly affected parties. Considerations on approvals

(7) The approval officer must notify the affected person, organization or member of the public that applies under subsection (4) in writing of the approval officer’s determination whether the applicant is a directly affected party. 20(1) In considering an application for an approval or an amendment of an approval, an approval officer must consider whether the applicant meets the requirements of this Part and the regulations and whether the application is consistent with the municipal development plan and if, in the opinion of the approval officer, (

a) the requirements are not met or there is an inconsistency with the municipal development plan, the approval officer must deny the application, or (

b) there is no inconsistency with the municipal development plan and the requirements are met or a variance may be granted under

section 17 and compliance with the variance meets the requirements of the regulations, the approval officer (

i) must consider matters that would normally be considered if a development permit were being issued, (ii) may make, or require the applicant to make, inquiries and investigations and prepare studies and reports, (iii) must give directly affected parties a reasonable opportunity to review the information relevant to the application that is submitted to the approval officer and a reasonable opportunity to furnish 11

11 Explanatory Notes

evidence and written submissions relevant to the application, (iv) may hold meetings and other proceedings with respect to the applications, (

v) may provide or facilitate mediation among directly affected parties, (vi) must consider the effects the proposed approval or amended approval may have on natural resources administered by ministries, (vii) must consider the following if available when the application for approval is considered: any applicable statement of concern submitted under

section 70 of the Environmental Protection and Enhancement Act or under

section 109 of the Water Act and any written decision of the Environmental Appeal Board or the Director under the Water Act in respect of the subject-matter of the approval, (viii) may consider any evidence that was before the Environmental Appeal Board or the Director under the Water Act in relation to the written decision referred to in subclause (vii), and (ix) must consider the effects on the environment, the economy and the community and the appropriate use of land.

(2) A Director under the Environmental Protection and Enhancement Act and the Director under the Water Act may disclose the statements of concern referred to in subsection (l)(b)(vii) to an approval officer and the approval officer may use the information in the statements of concern for the purposes of this Part.

(3) The approval officer may, under subsection (l)(b), (

a) deny the application, or (

b) grant an approval or an amendment of an approval and impose terms and conditions on the approval or amendment including the terms and conditions that a municipality could impose if the municipality were issuing a development permit. 12

12 Explanatory Notes

13 Explanatory Notes

Considerations on regis trations, authorizations 22(1) In considering an application for a registration or an amendment of a registration, the approval officer must determine whether the applicant meets the requirements of this Part and the regulations and whether the application is inconsistent with the municipal development plan and if, in the opinion of the approval officer, (

a) the requirements are not met or there is an inconsistency with the municipal development plan, the approval officer must deny the application, or (

b) the requirements are met and there is no inconsistency with the municipal development plan, the approval officer may grant a registration or an amendment of a registration and may impose terms and conditions on the registration or amendment, including the terms and conditions that a municipality could impose if the municipality were issuing a development permit.

(2) In considering an application for an authorization or an amendment of an authorization, the approval officer must determine whether there is an inconsistency with the municipal development plan and determine whether the applicant meets the requirements of this Part and the regulations and if, in the opinion of the approval officer, (

a) there is an inconsistency or the requirements are not met, the approval officer must deny the application, or (

b) there is no inconsistency with the municipal development plan and the requirements are met, or a variance may be granted under

section 17 and compliance with the variance meets the requirements of the regulations, the approval officer may grant an authorization or an amendment of an authorization, may include a variance and may impose terms and conditions on the authorization or amendment including the terms and conditions that a municipality could impose if the municipality were issuing a development permit.

(3) The approval officer must provide a written copy of a decision under subsection (1) or (2) to the directly affected parties.

(4) A directly affected party may, within 10 working days of receipt under subsection (3), of a copy of a decision, 14

14 Explanatory Notes

15 Explanatory Notes

(

c) whether other persons or organizations who are entitled to receive notice and be heard at a hearing under the Environmental Protection and Enhancement Act or the Water Act should receive notice and have the opportunity to participate in the Board’s review, (

d) any applicable and available written decision of the Director under the Water Act or the Environmental Appeal Board in respect of the subject-matter of the approval, registration or authorization, and (

e) any applicable and available statement of concern or evidence submitted to the Director under the Water Act or under

section 70 of the Environmental Protection and Enhancement Act.

(3) A Director under the Environmental Protection and Enhancement Act and the Director under the Water Act may disclose the statements of concern referred to in subsection (2) to the Board, and the Board may use the information in the statements for the purposes of this Part.

(4) In conducting a review the Board (

a) may arrange a mediation among the applicant and the directly affected parties, (

b) must give the directly affected parties a reasonable opportunity to review information relevant to the review, (

c) must give the directly affected parties a reasonable opportunity to furnish evidence and written submissions relevant to the review, (

d) may hold meetings and other proceedings with respect to the review, (

e) in the case of an approval or an amendment of an approval, may hold hearings, (

f) may make, or require the applicant to make, inquiries and investigations and prepare studies and reports, (

g) must have regard to, but is not bound by, the municipal development plan, 16

16 Explanatory Notes

(

h) must consider matters that would normally be considered if a development permit were being issued, (

i) must consider how the proposed application would affect natural resources administered by ministries, (

j) must consider any applicable written decision of the Environmental Appeal Board or the Director under the Water Act in respect of the subject-matter of the approval or registration and may consider any evidence that was before the Environmental Appeal Board or the Director under the Water Act in relation to that written decision, and (

k) must consider the effects on the environment, the economy and the community and the appropriate use of land.

(5) If a Board member participates in a mediation process under subsection (4)(a), that member may not participate in the review of the application.

(6) On applying for a review, the applicant and any directly affected party may request that the decision referred to in the application be suspended until the application is heard, and the Board may suspend the decision on the terms and conditions it prescribes or may refuse the request.

(7) On holding a review the Board may (

a) grant an approval, registration or authorization or an amendment of an approval, registration or authorization on any terms and conditions that the Board considers appropriate, including the terms and conditions that a municipality could impose if the municipality were issuing a development permit, (

b) refuse to grant an approval, registration or authorization or an amendment of an approval, registration or authorization, or (

c) make any other disposition of the application that the Board considers to be appropriate.

(8) The Board must provide a written copy of the decision under subsection (1 )(

a) or (7) to the directly affected parties and the persons and organizations who were determined, under

section 20(8), not to be directly affected parties. 17

17 Explanatory Notes

18 Explanatory Notes

19 Explanatory Notes

20 Explanatory Notes

21 Explanatory Notes

22 Explanatory Notes

23 Explanatory Notes

24 Explanatory Notes

Amends SA 1992 cE-13.3 (

b) to remedy any confusion, difficulty, inconsistency or impossibility resulting from the transition.

(2) A regulation made under subsection (1) may be made retroactive to the extent set out in the regulation.

(3) A regulation made under subsection (1) is repealed on the earliest of (

a) the coming into force of an amendment that adds the subject-matter of the regulation to this Act; (

b) the coming into force of a regulation that repeals the regulation made under subsection (1); (

c) two years after the regulation comes into force.

(4) The repeal of a regulation under subsection (3)(

b) or (

c) does not affect anything done, incurred or acquired under the authority of the regulation before the repeal of the regulation. 6 The Environmental Protection and Enhancement Act is amended (

a) in

section 65(4)(

a) and (

b) by adding “, the Board, as defined in the Agricultural Operation Practices Act, under

Part 2 of that Act” after “the Energy Resources Conservation Board”; (

b) in

section 87 (

i) in subsection (2)(

a) by adding “under

Part 2 of the Agricultural Operation Practices Act,” before “under the Natural Resources”; (ii) in subsection (5)(b)(

i) by adding “under

Part 2 of the Agricultural Operation Practices Act,” before “under the Natural Resources”; (

c) in

section 105(2) by adding “or in respect of which recommendations under

Part 1 of the Agricultural Operation Practices Act indicate that the agricultural operation follows a generally accepted agricultural practice after “such an operation”. 25

6 Consequential. 25 Explanatory Notes

Amends sa 7 The Farming Practices Protection Statutes Amendment 1999 c9 Act iggg js amended (

a) in

section 2(3) in the new clause (

f) by striking out “including, but not limited to, the need for written notice to be provided to the owners of land situated adjacent to agricultural operations”; (

b) by repealing

section 2(5). Amends sa 8 The Municipal Government Act is amended by adding the 1994 cm-26.1 following after

section 618: Exemption 618.1 This Part and the regulations and bylaws under this Part respecting development permits do not apply to a confined feeding operation or manure storage facility within the meaning of the Agricultural Operation Practices Act if the confined feeding operation or manure storage facility is the subject of an approval, registration or authorization under

Part 2 of the Agricultural Operation Practices Act. ^Td.s.SA 9 The Natural Resources Conservation Board Act is 1990cn-5.5 amended (

a) in

section 19 by adding “or under powers or duties conferred or imposed on the Board under another enactment” after “order or direction of the Board”; (

b) in

section 21 by striking out “and” at the end of clause (a), adding “and” at the end of clause (

b) and adding the following after clause (b): (

c) may do all things that are necessary for or incidental to the exercise or performance of any power or duty conferred or imposed on it by another enactment. Transitional10 If an applicant has submitted an application to a municipality for a development permit with respect to a confined feeding operation and a decision has not been made by the municipality on t e application before January 1, 2002, the municipality must continue to consider the application and make a decision unless the 26

7 Consequential. 8 Consequential. 9 Amends

chapter N-5.5 of the Statutes of Alberta, 1990. Sections 19 and 21 presently read: 19 No action or proceeding may be brought against the Board or a member of the Board or an officer or employee of the Board in respect of any act or thing done purportedly under this Act, the regulations or an order or direction of the Board. 21 The Board (

a) may, with the approval of the Lieutenant Governor in Council, take any action and make any orders and directions that the Board considers necessary to effect the purpose of this Act that are not otherwise specifically authorized by this Act, and (

b) may do all things that are necessary for or incidental to the exercise or performance of any power or duty conferred or imposed on it by this Act or the regulations. 10 Transitional. 26 Explanatory Notes

Transitional Transitional applicant withdraws the application prior to the decision being made. 11(1) If on January 1, 2002 a confined feeding operation or manure storage facility exists with respect to which a municipal development permit was not issued, this Act and the regulations apply to the confined feeding operation and manure storage facility, and the owner or operator must ensure that the confined feeding operation and manure storage facility meet the requirements of this Act and the regulations. (2) Subsection (1) does not apply to a building or structure that exists on January 1, 2002 and is directly related to the confined feeding operation or manure storage facility referred to in subsection (1), until the building or structure is expanded.

(3) Despite this section, the Board may, if in the opinion of the Board there is a risk to the environment or an inappropriate disturbance, issue an enforcement order with respect to the confined feeding operation or manure storage facility and any building or structure that is directly related to either of them. 12(1) If on January 1, 2002 a confined feeding operation or manure storage facility exists with respect to which a development permit was issued or is constructed pursuant to a development permit that has been issued before January 1, 2002 or issued pursuant to

section 10 and the development permit includes terms or conditions for the operation of the confined feeding operation or for the collection, transportation, storage, application, use, transfer or disposal of manure, this Act and the regulations apply to the confined feeding operation, manure storage facility and the collection, transportation, storage, application, use, transfer or disposal of manure but the terms and conditions of the development permit continue to apply and prevail over any provision of this Act or the regulations with which the terms and conditions are inconsistent until (

a) in the opinion of the Board there is a risk to the environment or an inappropriate disturbance and an enforcement order is issued under this Act with respect to the confined feeding operation, manure storage facility or the collection, transportation, storage, application, use, transfer or disposal of manure, or (

b) an approval, registration or authorization is granted under this Act to expand the confined feeding operation or to expand or modify the manure storage facility or with 27

11 Transitional. 12 Transitional. 27 Explanatory Notes

respect to the collection, transportation, storage, application, use, transfer or disposal of manure.

(2) If a development permit includes terms or conditions that require the permit holder or owner or operator to undertake tests or evaluations or to submit information to the municipality, the holder, owner or operator must continue to undertake the tests and evaluations but despite subsection (1) must submit the information to the Board.

(3) A municipality must disclose to the Board information about any part of a development permit it possesses that relates to a confined feeding operation or a manure storage facility that exists on or is to be constructed after January 1, 2002.

(4) The Board may use information disclosed under subsection (3) for the purposes of administering

Part 2 of this Act and the regulations. 13 This Act comes into force on January 1, 2002. 28

13 Coming into force. Title: 2001 (25th, 1st) Bill 28, Agricultural Operation Practices Amendment Act, 2001 28 Explanatory Notes

Document details

Collection	Alberta — Bills
Citation	L25 S1 119
Type	bill
Volume / chapter	L25 S1 119
Language	en
Format	json
Source	PROVINCIAL
Identifier	7b1abe6892341095f5815ce3be71cec6c6cd4f2f

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