28 May Do Municipal Bylaws Regulating Cannabis Restrict Normal Farm Practices under the FFPPA and Conflict with the Cannabis Act?
Posted in Case Notes, Commentary
Burnstown Farms Cannabis Company v. Township of Beckwith, 2019 CanLII 57318
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Burnstown Farms Cannabis Company (Applicant) applied for a federal license under the Cannabis Act, S.C. 2018, Chapter 16 (Cannabis Act) to cultivate and produce cannabis on a farm in the Township of Beckwith (Township). The Township has a bylaw that restricts operations on agricultural land to “normal farm practices” as defined in the Farming and Food Protection Act, 1998 (FFPPA). Normal farm practice means that it is “(a) conducted in a manner consistent with proper and acceptable customs and standards as established and followed by similar agricultural operations under similar circumstances or (b) makes use of innovative technology in a manner consistent with proper advanced farm management practices.” The Applicant filed an application to the Normal Farm Practices Protection Board (Board) under s. 6 of the FFPPA arguing that the Township’s bylaw restricts the Applicant’s proposed use of the farm to cultivate and produce cannabis as permitted with a federal licence under the Cannabis Act. The parties proceeded before the Board in a prehearing conference to address the preliminary issues.
HELD: Decision withheld until full hearing.
DISCUSSION: There is agreement between the parties as to the authority of the different levels of government to regulate this matter; specifically the federal government has the authority to pass regulations surrounding cannabis cultivation and production under the Cannabis Act, and the provincial government of Ontario has the authority to regulate agriculture under the FFPPA as well as granting municipalities the authority to pass bylaws under the Municipal Act 2001, S.O. 2001, Ch. 25 (Municipal Act). Despite the Township’s authority under the Municipal Act to pass bylaws within its jurisdiction, the FFPPA limits the authority by prohibiting a bylaw to restrict a normal farm practice on agricultural land. The Applicant argued that both the FFPPA and the Cannabis Act regulated agriculture, which prevented it from complying with both laws. Section 95 of the Constitution Act 1867 to 1982 permits concurrent jurisdiction of federal and provincial law regarding agriculture; it provides that provinces can make law on agriculture but it also specifies a caveat that from time to time the federal government may make laws regulating agriculture in any or all provinces. The Board held that both the FFPPA and the Cannabis Act dealt with agriculture. Therefore, the next determination was whether the Applicant had to follow inconsistent regulations under the law. The Board reviewed the doctrine of federal paramountcy as outlined in Supreme Court of Canada in Alberta (Attorney General) v. Moloney,  3 SCR 327 “a conflict is said to arise in one of two situations, which form the two branches of the paramountcy test: (1) there is an operational conflict because it is impossible to comply with both laws, or (2) although it is possible to comply with both laws, the operation of the provincial law frustrates the purpose of the federal enactment.” The Board refused to go further without evidence from the Applicant that cannabis cultivation and production at the farm in the Township was a normal farm practice as defined under the FFPPA. The Board needed to first determine if there is a normal farm practice, following which the Board can address the doctrine of paramountcy and if there is a conflict between the FFPPA and the Cannabis Act. The Board withheld its right to issue a decision until the full hearing.
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