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C.C.S.M. c. F45
The Farm Practices Protection Act
(Assented to June 24, 1992)
HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:
In this Act,
"agricultural operation" means an agricultural, aquacultural, horticultural or silvicultural operation that is carried on in the expectation of gain or reward, and includes
(a) the tillage of land,
(b) the production of agricultural crops, including hay and forages,
(c) the production of horticultural crops, including vegetables, fruit, mushrooms, sod, trees, shrubs and greenhouse crops,
(d) the raising of livestock, including poultry,
(e) the production of eggs, milk and honey,
(f) the raising of game animals, fur-bearing animals, game birds, bees and fish,
(g) the operation of agricultural machinery and equipment,
(h) the process necessary to prepare a farm product for distribution from the farm gate,
(i) the application of fertilizers, manure, soil amendments and pesticides, including ground and aerial application, and
(j) the storage, use or disposal of organic wastes for farm purposes; (« exploitation agricole »)
"board" means the Farm Practices Protection Board established under section 3; (« Commission »)
"court" means the Court of Queen's Bench; (« tribunal »)
"land use control law" means any Act of the Legislature, regulation, plan or by-law that restricts or prescribes the use to which land or premises may be put or the nature of business or activities that may be carried on on any land or premises; (« loi de réglementation en matière d'utilisation du sol »)
"minister" means the member of the Executive Council charged by the Lieutenant Governor in Council with the administration of this Act; (« ministre »)
"normal farm practice" means a practice that is conducted
(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; (« pratique agricole normale »)
"person" includes an unincorporated association, partnership or cooperative. (« personne »)
PROTECTION FROM NUISANCE CLAIMS
Protection from nuisance claims
A person who carries on an agricultural operation, and who, in respect of that operation,
(a) uses normal farm practices; and
(b) does not violate
(i) a land use control law,
(ii) The Environment Act or a regulation or order made under that Act, or
(iii) The Public Health Act or a regulation or order made under that Act;
is not liable in nuisance to any person for any odour, noise, dust, 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 an odour, noise, dust, smoke or other disturbance.
Protection continues despite change in by-law, etc.
Subsection (1) applies notwithstanding the occurrence of one or more of the following:
(a) the land use by-law of the municipality in which the agricultural operation is carried on changes or the agricultural operation becomes a non-conforming use;
(b) the ownership of the 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 near to the land on which the agricultural operation is carried on changes.
FARM PRACTICES PROTECTION BOARD
Farm Practices Protection Board established
The "Farm Practices Protection Board" is established and shall consist of not less than three members appointed by the Lieutenant Governor in Council.
Chairperson and vice-chairperson
The Lieutenant Governor in Council shall designate one of the members of the board as chairperson and another as vice-chairperson.
The chairperson is responsible for the general supervision and direction of the conduct of the affairs of the board and, if he or she is absent or unable to act, the vice-chairperson shall have the powers of the chairperson.
Repealed, S.M. 2001, c. 12, s. 2.
The members of the board shall be paid such remuneration and receive such expenses as the Lieutenant Governor in Council determines.
The minister may from time to time nominate one or more persons from among whom acting members of the board may be selected.
Selection of acting board members
When in the opinion of the chairperson it is necessary or desirable for the proper performance of the board's duties, the chairperson may select not more than three persons nominated under subsection (1) as acting members of the board for a period of time or for the purpose of any matter before the board.
Powers and duties of acting member
An acting member has and may exercise and perform the powers and duties of a member of the board.
An acting member is entitled to be paid such remuneration and receive such expenses as the minister determines.
Three members of the board, of whom at least two are members appointed under subsection 3(1), constitute a quorum and are sufficient for the exercise of all of the jurisdiction and powers of the board.
Management and procedural rules
The board may make rules for the management of its affairs and for the practice and procedure to be observed in matters before it. The rules may also authorize the chairperson or another officer or member to sign board documents.
Information and representations from parties
In any matter before it, the board shall give full opportunity to the parties to present information and make representations.
The members of the board have the powers of commissioners under Part V of The Manitoba Evidence Act.
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.
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.
No action or proceeding may be brought against the board, a member or acting member of the board or any other person acting under the authority of this Act for anything done or not done, or for any neglect,
(a) in the performance or intended performance of a duty under this Act or the regulations; or
(b) in the exercise or intended exercise of a power under this Act or the regulations;
unless the board or the person was acting in bad faith.
A person who is aggrieved by any odour, noise, dust, smoke or other disturbance resulting from an agricultural operation may apply in writing to the board for a determination as to whether the disturbance results from a normal farm practice.
An application under subsection (1) shall contain a statement of the nature of the complaint, the name and address of the person making the application and the name and address of the agricultural operation, and shall be in a form acceptable to the board.
The board may require that an applicant give written notice, in such form and manner that the board specifies, to the persons that the board specifies.
The parties to an application are the applicant, the owner or operator of the agricultural operation and any person added as a party by the board.
No action commenced unless application made
A person shall not commence an action in nuisance for any odour, noise, dust, smoke or other disturbance resulting from an agricultural operation unless the person has, at least 90 days previously, applied to the board under this section for a determination as to whether the disturbance complained of results from a normal farm practice.
Subsequent nuisance action not required
A person may apply to the board for a determination under this section whether or not an action in nuisance is subsequently commenced.
Investigation and resolution of dispute
On receiving an application, the board may inquire into and endeavour to resolve a dispute between the aggrieved person and the owner or operator of the agricultural operation and may determine what constitutes a normal farm practice in respect of that agricultural operation.
Refusal to consider application
The board may refuse to consider an application or to make a decision if in its opinion,
(a) the subject-matter of the application is trivial;
(b) the application is frivolous or vexatious or is not made in good faith; or
(c) the applicant does not have a sufficient personal interest in the subject-matter of the application.
The board shall notify the parties of its refusal to consider an application or to make a decision under subsection (1), and give them written reasons for its action.
If the board is unable to resolve the dispute between the aggrieved person and the owner or operator of the agricultural operation, the board shall
(a) dismiss the complaint if the board is of the opinion that the disturbance complained of results from a normal farm practice; or
(b) order the owner or operator of the agricultural operation to cease the practice causing the odour, noise, dust, smoke or other disturbance if it is not a normal farm practice or to modify the practice in the manner set out in the order to be consistent with normal farm practices.
The board shall give a copy of its decision to each of the parties together with written reasons for the decision.
Decision shall be considered by court
A decision of the board under this section respecting an agricultural operation shall be considered by the court in any subsequent action in nuisance taken in respect of that operation.
Order of board may be filed in court
Where a person has failed to comply with an order of the board made under subsection (1) and the time for an appeal against the order has expired, the board may file a copy of the order, certified by the chairperson or secretary of the board to be a true copy, in court.
Upon filing under subsection 12(4), the order shall be deemed to be a judgment of the court in favour of the board and the board may apply to a judge of the court for an order requiring the person to comply with the judgment and the judge may also make one or more of the following orders:
(a) a contempt order against the person;
(b) an order respecting costs;
(c) any other order that may be necessary to give effect to the judgment or that the judge considers just.
Any party to an application may appeal an order of the board on a question of law to the court within 30 days after the making of the order.
Subject to subsection (5), the board may review an order it has made, if a party or another person who is affected by the order applies.
After the review, the board may, by further order, dismiss the application or change, revoke or replace the order.
The members of the board who review the order may be different from the members who made it.
Application of certain previous provisions
Subsections 9(2) to (4) and sections 10 to 13 apply, with necessary changes, to an application or order made under this section.
The board shall not review an order
(a) before the end of the appeal period set out in section 13;
(b) after an appeal has been made under section 13 but before it is determined or withdrawn; or
(c) after the order has been filed in court under subsection 12(4).
Injunction proceedings in abeyance
When an agricultural operation is the subject of an application under subsection 9(1), no injunction proceedings may be commenced or continued in respect of that agricultural operation until the board has made a decision under subsection 12(1) or has refused to hear the application.
Subsection (1) does not apply to proceedings taken under The Environment Act or The Public Health Act.
The Lieutenant Governor in Council may make regulations
(a) prescribing fees payable in respect of applications made under subsection 9(1) or 13.1(1);
(b) respecting the nomination and selection of acting members of the board;
(c) respecting standards for the purpose of the definition of "normal farm practice";
(c.1) respecting matters that the board must have regard to in determining what constitutes a normal farm practice for agricultural operations;
(d) respecting any other matter or thing necessary or advisable for carrying out the purposes of this Act.
S.M. 1997, c. 30, s. 4; S.M. 2001, c. 12, s. 5.
NOTE: This section contained consequential amendments to The Nuisance Act which are now included in that Act.
This Act may be cited as The Farm Practices Protection Act and referred to as chapter F45 of the Continuing Consolidation of the Statutes of Manitoba.
This Act comes into force on a day fixed by proclamation.
NOTE: S.M. 1992, c. 41 was proclaimed in force January 31, 1994.