On May 27, 2o14, Prince Edward County passed a resolution asking the provincial and federal governments to declare a moratorium on the use of neonicotinoid (neonics) crop treatments, as soon as possible, pending further study. These pesticides are thought to seriously affect bee health. Bees, which are essential to most forms of agriculture, have been dying at unprecedented rates.

The motion also goes on to resolve that “The County show local leadership in this regard by reviewing the current planting/landscaping products used on municipal property, with a view to discontinuing use of Neonicotinoic products by the end of 2014″. (emphasis added).

This is an excellent first step that all municipalities could easily take: to stop using neonics on lands owned by the municipality.

Can municipalities ban the local use of neonic pesticides?

Municipalities have a shot at this, but the precise wording of the bylaw would be very important, and it would have to have a clear nexus to the health and wellbeing of local residents.

This is not the first time that municipalities have weighed in on pesticide use. Ontario’s provincial ban on the cosmetic use of pesticides started with the Quebec Town of Hudson’s fight, all the way to the Supreme Court of Canada. The Town successfully banned the use of pesticides for cosmetic purposes within its municipal boundaries.

Many municipalities across Canada have since banned pesticides for cosmetic use. In 2008, the Province of Ontario, after unsuccessful court challenges by the pesticide industry to Toronto’s pesticide by-law in 2004, instituted a province wide ban on the use of these pesticides for cosmetic purposes.  This ban includes at least four neonics pesticides (imidaclorprid, clothianidin, thiamethoxam, and acetamiprid). At least for home gardeners, these pesticides cannot be used in Ontario already. Similarly, the provincial ban would already apply to municipally owned property where pesticide use is for cosmetic purposes.

When the Pesticides Act was amended in 2008, it specifically allowed the use of these otherwise banned pesticides for various purposes, including agricultural purposes. The Pesticides Act also made any by-law passed by a municipality inoperative, if it addressed the use, sale, offer for sale or transfer of a pesticide that may be used for a cosmetic purpose. It is of note this did not make by-laws inoperative for other uses, such as agricultural uses, which are an exception to the ban.

Under Ontario’s Municipal Act, 2001, a by-law is without effect to the extent of any conflict with a provincial or federal Act, or a regulation made under any such Act.  The courts have generally interpreted this to mean the “impossibility of dual compliance”, i.e. complying with the municipal regulation would make it impossible to comply with the legislation of the province or federal government. In this light, a stricter municipal requirement is generally considered acceptable, since complying with the more restrictive requirement does not make it impossible to comply with the less restrictive requirement.

However, before we can get to that conflict analysis, a municipality has to have the power to pass the type of bylaw it contemplates in the first place. More recent jurisprudence has taken the view that wide latitude must be given to municipalities to pass by-laws. However, if the resolution or a future by-law of Prince Edward County purported to pass a by-law that restricted the use of neonics on agricultural lands within the municipality, it’s not clear that it would have the power to pass that type of bylaw.

Two of the powers that municipalities have to pass by-laws, referred to as spheres of jurisdiction, include by-laws for

1. Economic, social and environmental well being of the municipality.

2. health, safety and well-being of persons.

For an anti-neonics by-law to succeed, the municipality would need to demonstrate that its bylaw protects the economic, social and environmental well being of their particular community.

Perhaps a by-law to restrict bee-killing pesticides could meet the economic, social and environmental well being test in Prince Edward County because of the significant local farming community who depend on insect pollination, and perhaps because of local bee-keepers. Because of their central role in modern agriculture, one way to think of bees is as “flying $50 bills”. However, it was easier to establish the necessary legal foundation in Hudsonre purely cosmetic pesticides that directly threaten human health, than it would be with neonics, which threaten bees and other pollinators, but which benefit grain farmers.

A recent example of a municipal bylaw which did not pass muster was Toronto’s shark-fin ban, tossed by the Superior Court in November of 2012. In that case, the court concluded this type of ban was not sufficiently connected to a municipal purpose under the allowable spheres of jurisdiction.

If any of our faithful readers know of other municipalities taking action on neonics, please let us know.

Paula Boutis and Dianne Saxe