Elizabeth Brubaker
Financial Post
July 20, 2005

With the passage of a new Planning Act last month, Manitoba’s NDP government furthered its 33-year campaign to foist factory farms on an unwilling public, ensuring that neither individual property rights nor the desires of a local community can stop large farm operations that create nuisances or pollute the environment.

This Orwellian act, presented as one that would "strengthen local decision-making" and "increase the flexibility of councils to respond to local concerns," does just the opposite: It concentrates power in the hands of the provincial government, thwarting communities’ efforts to mitigate the threats posed by intensive livestock operations.

The act requires municipalities to produce development plans designating areas in which livestock operations will or will not be allowed. The plans will address farm size, siting and setback issues, but will not distinguish between different types of livestock operations or farming practices. All development plans will require the approval of the provincial government, which may alter or replace them at will. It is the province, rather than a municipality, that has the final say.

After receiving an application for a large livestock operation, a municipality may approve or reject it, but not impose conditions of its own making. It may merely require the project to conform with its provincially approved development plan or to implement the recommendations of a provincially appointed technical review committee. Although the municipality may require the proposed farm to plant a "shelter belt" of trees or cover its manure storage facilities, it can do nothing else to reduce potential odours. Under no circumstances may it impose other conditions on the storage, application, transport or use of manure – not even those, now common, requiring farmers to inject manure into the soil rather than spread it on the surface of their fields.

How can a government that professes to be "committed to maintain[ing] the local control over land-use planning issues" justify such restrictions on municipal freedom? Apparently, local control must be balanced against provincial interests. In the words of Intergovernmental Affairs Minister Scott Smith, "there are certain overriding principles that are critically important to the government."

One of those overriding principles, it seems, is that livestock farmers require a predictable planning process. Restricting municipal freedom, the Minister’s press secretary explains, will let farmers know what they’re getting into. It will provide greater certainty.

The Planning Act is just the latest in a string of NDP laws enabling livestock operations to trump other interests. The party’s determination to overcome local resistance to factory farms dates back to the early 1970s, when an expanding hog farm outside Winnipeg became embroiled in a dispute with its neighbours, Michael and Carolyn Lisoway.

The Springfield Hog Ranch was huge by the standards of the day. Its barn accommodated 2,000 hogs at once and its sewage lagoons stank for miles around. In 1971, the Lisoways complained to Manitoba’s Clean Environment Commission, which ordered the farm to reduce the number of hogs to 800 within one year and to eliminate the lagoon system within 30 months.

The provincial government – led by the NDP’s Edward Schreyer – came riding to the farm’s rescue. Rather than enforcing the commission’s order, it amended the Clean Environment Act to subject commission orders to appeals to the government. The amendments gave the minister control over all matters relating to environmental contamination, along with the authority to stay, cancel, vary or replace orders made by the commission. In 1973, the government went further, passing a regulation exempting all livestock production operations from commission oversight. Those two changes paved the way for an Order-in-Council freeing the Springfield Hog Ranch from the orders imposed by the commission.

The Lisoways fought back. They sued the farm for nuisance. The court found that the farm violated its neighbours’ property rights. Its "disastrously offensive" odours interfered with their use and enjoyment of their property. The court awarded $10,000 in damages to the Lisoways and ordered the farm to abate the nuisance within eight months.

Enraged, the provincial government lost no time in ensuring that future courts could not issue similar decisions. In 1976 – just six months after the release of the Lisoway decision – it introduced the Nuisance Act, protecting farms and other businesses from common-law liability for the odours they generated. No longer could courts award damages or issue injunctions against offensive livestock operations.

The Nuisance Act marked a fundamental shift in Canadians’ rights. Rural residents lost their age-old right to enjoy their property, free from disturbing odours. Farmers, on the other hand, gained a new right – one that came to be known as the right to farm. In the following years, every other Canadian province would follow Manitoba’s lead.

Over the years, Manitoba has expanded the right to farm with a Farm Practices Protection Act exempting farmers from liability, not just for odours but also for noise, dust, smoke and other disturbances. But the NDP has always understood that such exemptions would provide insufficient certainty to farmers. Even when debating the 1976 Nuisance Act, then attorney-general Howard Pawley called for stricter land-use controls and planning legislation to limit residents’ rights outside cities, and so minimize future conflicts.

The need for provincially driven planning remained a theme for Manitoba’s NDP, whether in power or in opposition. Eight years ago, when debating amendments to the Farm Practices Protection Act, the party called for provincial involvement in upfront, long-term planning "so that we can see the industry grow."

And grow it does. Between 1975 and 2003, hog production in the province increased more than eight-fold, rising from 870,000 to 7.3 million hogs. Farm size has also increased dramatically. In 1976, the average farm produced fewer than 200 hogs. By 2001, that number had grown to more than 1,500.

The 1976 Nuisance Act, subsequent farm practices protection acts and today’s Planning Act have all contributed to the growth of livestock operations in Manitoba. They have done so by disempowering the local people – first individuals and later communities – who are adversely affected by farms and by consolidating decision-making in the hands of politicians committed to agricultural expansion at all costs.

Combined, the acts are a central planner’s dream. And little wonder. As the NDP’s Smith said of a Conservative MLA who challenged his changes to the Planning Act, "He, I guess, likes blue and I like orange."