Ban Stands: Canadian Municipalities Have the Power to Restrict Pesticide Use Thanks to the Supreme Court and Hudson, Quebec

Article excerpt

WHEN the Supreme Court of Canada unanimously decided in June of 2001 that the small community of Hudson, Quebec, had the legal power to ban pesticide use, community activists from coast to coast celebrated a sweet victory.

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The court denied an appeal (that had already lost in two levels of the Quebec courts) by two lawn care companies. The court confirmed that Hudson had the power, as do most municipalities in Canada, to set by-laws that respond to community concerns and that protect the general welfare of the public.

The motivation for the Hudson by-law, and the efforts of thousands of others across Canada, came primarily from mothers of young children. During the 1980s, this constituency of concerned parents had objected to pesticide spraying in parks and school grounds. The occasional headaches, nausea or rashes were difficult to trace to pesticide use. More seriously, those affected with chemical sensitivities could not go outside. For the most part, health effects were not directly evident, just worrisome. Especially galling was the fact that the spraying seemed completely unnecessary.

Throughout the 1990s, authoritative scientific reports drew attention to the special vulnerability of children to environmental pollution. Pesticides were particularly singled out for posing risks of birth defects, cancer, developmental delays, motor and nervous system dysfunction and immunotoxicity. People questioned placing children at risk for the sake of lawn care.

Many local authorities began to restrict pesticide use. Some acted merely to cut costs. More often, with health and environmental goals in mind, pesticides on public lands were dramatically reduced, in some cases by 90 to 100 percent. Hudson, Quebec, was the first to go after the sacred ground of private property in 1991.

The Hudson by-law bans pesticide use across the board. It does allow for a series of exceptions. For example, the ban ensures that public health officials can approve the use of pesticides to protect public safety for situations like water purification or insect outbreaks. The end result is a ban on the outdoor use of pesticides on public and private property for cosmetic purposes.

With the final resolution of Hudson's ten-year court battle, municipalities across the country have come under more pressure than ever to enact pesticide by-laws. Many have taken the plunge--over 70 pesticide by-laws are now in place in Quebec, Nova Scotia, New Brunswick, Ontario and British Columbia. Dozens more are actively under consideration in those and other provinces.

However, after Hudson's ten-year ordeal, municipalities are afraid of their by-laws being challenged in the courts. So far, Hudson-style by-laws, like the one passed by the City of Toronto, have withstood such challenges. CropLife, a pesticide industry lobby group, has challenged the City of Toronto's by-law, but both the trial-level court and the Ontario Court of Appeal have upheld it as valid. The three judges of the latter court unanimously rejected all arguments advanced by CropLife and echoed the Supreme Court decision in Hudson.

The Appeal Court concluded that "absent an express direction to the contrary in the Municipal Act, 2001, which is not there, the jurisprudence from the Supreme Court is clear that municipal powers, including general welfare powers, are to be interpreted broadly and generously within their context and statutory limits, to achieve the legitimate interests of the municipality and its inhabitants." In other words, despite the fact that Ontario amended its Municipal Act following the Hudson decision, those amendments did nothing to change the ability of the City of Toronto to exercise the by-law-making powers that were confirmed in the Hudson decision.

When an issue is headed for the courts, citizens or community groups can apply to organizations like Canadian Environmental Law Association (CELA) or Sierra Legal Defence Fund (SLDF) for representation. …