BILL 48 Agricultural Operation Practices Act

BILL 48

 

Agricultural Operation Practices Act

 

 

Chapter Outline

Definitions 1

acceptable farm practice pratique agricole admise

agricultural operation activité agricole

board Commission

complaint plainte

farm organization organisme agricole

Minister Ministre

Protection from liability 2

Farm Practices Review Board 3

Chairperson and vice-chairperson 4

Responsibilities of chairperson and vice-chairperson 5

Term of appointment 6

Rules of Procedure 7

Quorum 8

Remuneration and reimbursement 9


Provision of supplies and services by the Minister 10

Board to conduct studies 11

Professional assistance 12

Application containing complaint 13

Parties to the application 14

Notice of the application 15


No action commenced unless application made 16

Subsequent nuisance action not required 17

Similar applications 18

Investigation and settlement of complaint 19

Refusal to consider an application 20

Mediation 21

Determination by the board 22

Determination shall be considered by court 23

Regulations 24

Consequential amendments 25

Repeal 26

Commencement 27

 

 

 

Her Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:

1 In this Act

"acceptable farm practice" means a practice that is carried on

(a) in a manner consistent with proper and accepted customs and standards as established and followed by similar agricultural operations under similar circumstances, including the use of innovative technology used with advanced management practices, and

(b) in conformity with any standards set out in the regulations;

"agricultural operation" means an agricultural operation that is carried on for gain or reward or in the hope or expectation of gain or reward, and includes

(a) the clearing, draining, irrigating or cultivation of land,

(b) the raising of livestock, including poultry,

(c) the raising of fur-bearing animals,

(d) the raising of bees,

(e) the production of agricultural field crops,

(f) the production of fruit and vegetables and other specialty horticultural crops,

(g) the production of eggs and milk,

(h) the operation of agricultural machinery and equipment, including irrigation pumps,

(i) the preparation of a farm product for distribution from the farm gate, including cleaning, grading and packaging,

(j) the on-farm processing of farm products for the purpose of preparing farm products for wholesale or retail consumption,

(k) the storage, use or disposal of organic wastes for farm purposes,

(l) the operation of pick-your-own farms, roadside stands, farm produce stands and farm tourist operations as part of a farm operation,

(m) the application of fertilizers, conditioners, insecticides, pesticides, fungicides and herbicides, including ground and aerial spraying, for agricultural purposes, or

(n) any other agricultural activity or process prescribed by regulation

that is carried on for gain or reward or in the hope or expectation of gain or reward;

"board" means the Farm Practices Review Board established under section 3;

"complaint" means a complaint contained in an application under section 13;

"farm organization" means an organization designated by regulation as a farm organization;

"Minister" means the Minister of Agriculture and Rural Development.

 

Protection from liability

2(1) A person who carries on an agricultural operation using acceptable farm practices is not liable in nuisance to any person for any odour, noise, dust, vibration, light, smoke or other disturbance 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 odour, noise, vibration, dust, light, smoke or other disturbance that constitutes a nuisance.

2(2) Subsection (1) shall not be construed so as to exempt any person from compliance with any Act of the Legislature or of the Parliament of Canada or any regulation under an Act of the Legislature or of the Parliament of Canada.

Farm Practices Review Board

3 The Lieutenant-Governor in Council shall appoint a Farm Practices Review Board consisting of no fewer than

(a) four members recommended by farm organizations, and

(b) two members who do not carry on agricultural operations.

Chairperson and vice-chairperson

4 The Lieutenant-Governor in Council shall

 

(a) designate one of the board members as chairperson, and

(b) designate one of the board members as vice-chairperson.

Responsibilities of chairperson and vice-chairperson

5(1) The chairperson of the board is responsible for the general supervision and direction over the conduct and affairs of the board.

5(2) In the absence of the chairperson or where the chairperson is unable to carry out the duties conferred by this Act, the vice-chairperson shall have all the powers of the chairperson.

Term of appointment

6 The members of the board shall be appointed for a term of office not exceeding three years and are eligible for reappointment.

Rules of procedure

7 Subject to the regulations, the board may make rules of procedure for the conduct and management of its affairs and for the practice and procedure to be observed in matters before it.

 

Quorum

8 A quorum of the board shall include

(a) either the chairperson or vice-chairperson,

(b) two members appointed under paragraph 3(a), and

(c) one member appointed under paragraph 3(b).

Remuneration and reimbursement

9 The members of the board may be remunerated for their services and receive reimbursement for expenses at rates established by regulation.

Provision of supplies and services by the Minister

10 The Minister may provide the board with any supplies and the services of any employees that the Minister considers necessary for the board to exercise its powers and carry out its duties under this Act.

Board to conduct studies

11 The Minister may direct the board to study any matter related to farm practices and the board shall conduct the study and report its findings and recommendations to the Minister.

 

Professional assistance

12 The board may appoint one or more persons having technical or special knowledge of any matter to assist the board in any capacity in respect of a matter before it.

 

Application containing complaint

13(1) A person who is aggrieved by any odour, noise, dust, vibration, light, smoke or other disturbance resulting from an agricultural operation may make an application in writing to the board on a form provided by the board for a determination as to whether the odour, noise, dust, vibration, light, smoke or other disturbance results from an acceptable farm practice.

13(2) The board shall acknowledge receipt of the application within seven days of receiving the application.

Parties to the application

14 The parties to an application are the applicant, the person who carries on the agricultural operation and any other person added as a party by the board.

Notice of the application

15 The board may require that the applicant give notice of the application, in the form and manner specified by the board, to the Minister, the person who carries on the agricultural operation and any other person specified by the board.

 

No action commenced unless application made

16 A person shall not commence an action in nuisance for any odour, noise, dust, vibration, light, smoke or other disturbance resulting from an agricultural operation unless the person has, at least ninety days previously, applied to the board under this Act for a determination as to whether the disturbance complained of results from an acceptable farm practice.

 

Subsequent nuisance action not required

17 A person may apply to the board for a determination under this section whether or not an action in nuisance is subsequently commenced.

 

Similar applications

18 The board may consider two or more applications together where

(a) the facts of the applications are determined by the board to be similar, and

(b) the complaint is made against the same agricultural operation.

Investigation and settlement of complaint

19 On receipt of an application, the board may inquire into and endeavour to settle a complaint between the aggrieved person and a person who carries on an agricultural operation.

Refusal to consider an application

20(1) The board may refuse to consider an application or to make a determination if, in its opinion,

 

(a) the subject matter of the application is trivial,

(b) the application is frivolous or vexatious or is not in good faith,

(c) the complaint in question has already been before the board and a determination has been made by the board, or

(d) the applicant does not have a sufficient personal interest in the subject matter of the application.

20(2) The board shall notify the parties of its refusal to consider an application or to make a determination under subsection (1) and give written reasons for its actions.

Mediation

21(1) Upon receiving an application, the Board may

(a) refer the matter to mediation, and

(b) appoint a mediator to carry out the mediation and establish terms and conditions for the mediation.

21(2) Where a mediator has completed a mediation, the mediator shall

(a) file a report regarding the outcome of the mediation with the board, and

(b) distribute a copy of the report to the parties.

21(3) The board shall consider the report before making a determination regarding the application.

 

Determination by the board

22(1) If the mediation does not result in the settlement of the complaint, the board may make a determination as to whether the disturbance complained of results from an acceptable farm practice.

22(2) The board shall give a copy of its determination to the parties together with written reasons for the determination.

Determination shall be considered by court

23 A determination of the board respecting a complaint that is the subject of an application under section 13 shall be considered by the court in any subsequent action in nuisance in respect of that particular disturbance.

Regulations

24 The Lieutenant-Governor in Council may make regulations

(a) respecting standards for the purpose of the definition of "acceptable farm practice";

(b) respecting matters that the board must have regard to in determining what constitutes an acceptable farm practice for agricultural operations;

(c) respecting remuneration and reimbursement of expenses for board members;

 

(d) respecting an application made under section 13 and fees payable in respect of the application;

(e) prescribing an agricultural activity or process for the purposes of the definition "agricultural operation";

(f) designating organizations as farm organizations;

(g) respecting practices and procedures of the board.

Consequential amendments

25(1) Section 1 of the Agricultural Land Protection and Development Act, chapter A-5.11 of the Acts of New Brunswick, 1996, is amended by repealing the definition "agricultural operation" and substituting the following:

 

"agricultural operation" means an agricultural operation that is carried on for gain or reward or in the hope or expectation of gain or reward, and includes

(a) the clearing, draining, irrigating or cultivation of land,

 

(b) the raising of livestock, including poultry,

 

(c) the raising of fur-bearing animals,

(d) the raising of bees,

(e) the production of agricultural field crops,

(f) the production of fruit and vegetables and other specialty horticultural crops,

(g) the production of eggs and milk,

(h) the operation of agricultural machinery and equipment, including irrigation pumps,

(i) the preparation of a farm product for distribution from the farm gate, including cleaning, grading and packaging,

 

(j) the on-farm processing of farm products for the purpose of preparing farm products for wholesale or retail consumption,

 

(k) the storage, use or disposal of organic wastes for farm purposes,

 

(l) the operation of pick-your-own farms, roadside stands, farm produce stands and farm tourist operations as part of a farm operation,

(m) the application of fertilizers, conditioners, insecticides, pesticides, fungicides and herbicides, including ground and aerial spraying, for agricultural purposes, or

(n) any other agricultural activity or process prescribed by regulation

that is carried on for gain or reward or in the hope or expectation of gain or reward;

25(2) Section 20 of the Act is amended by adding after paragraph (a) the following:

(a.1) prescribing an agricultural activity or process for the purposes of the definition "agricultural operation";

Repeal

26 The Agricultural Operation Practices Act, chapter A-5.2 of the Acts of New Brunswick, 1986, is repealed.

Commencement

27 This Act or any provision of it comes into force on a day or days to be fixed by proclamation.