Imagine the scene, sometime in the near future, as a farmer stands in court accused of negligence because runoff or drift from her farm has contaminated nearby sites, perhaps causing illness.
Her defence lawyer leads her through the details of the decision several years earlier to take part in the environmental farm plan program.
She explains the changes she has made to her operation, including environmental investments and altered farming practices to meet EFP standards.
The judge listens and rules in favour of the farmer, citing adherence to an EFP as evidence of responsible farming practices and lack of negligence.
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For Melfort, Sask., lawyer and farmer Mel Annand, that scenario is not far-fetched.
“Although the program is voluntary, courts will have to recognize the existence of the environmental farm program and fit the program into our legal structures,” he wrote in a paper prepared for last year’s meeting of National Environmental Farm Planners in Prince Edward Island. “As the environmental movement gains public support in Canada, our law will have to give greater significance to programs such as environmental farm plans.”
He suggested that a farmer’s decision on whether to go through the EFP process could cut either way.
“It may be possible to suggest to a court that the existence of the program can inform the standard of care,” wrote Annand.
In other words, having completed the plan could be used as evidence that the farm operator was being as careful as possible.
The lack of participation could send the opposite message.
“For example, if a claim is made against a farmer for environmental damage resulting from his agricultural operation, would the lack of an environmental plan by the farmer arguably be a breach of standard care?”
In a Sept. 24 interview, Annand said the environmental farm plan program is too new to have been tested as a defence in court.
“But I think it will happen, definitely,” he said.
At the University of Saskatchewan Centre for Studies in Agriculture, Law and the Environment, director Hayley Hesseln is convinced the day is not far off.
“There are other reasons farmers get involved – peer pressure and the fear it will be imposed upon them,” she said. “But the biggest private benefit I see for farmers is to improve the optics and perhaps to prevent successful lawsuits.”
At Wetaskiwin, Alta., EPF graduate and grain farmer Rob Strohschein sees the same writing on the wall.
“I think this is the way forward because over time, we will be more environmentally liable, legally accountable for what we do to the resources we use.”
