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OCTOBER 2018 • COUNTRY LIFE IN BC


13


Local governments can’t undermine ALR rules Court issues blunt message for municipalities attempting to prohibit cannabis production


by PETER MITHAM RICHMOND – A recent ruling in BC


Supreme Court has squashed Richmond’s attempts to limit cannabis production within the Agricultural Land Reserve. “Richmond got its wrists slapped – got told they can’t try to do what they were trying to do,” says Joan Young, a partner specializing in complex civil and commercial litigation in the Vancouver office of law firm McMillan. “They’re allowed to regulate in certain areas, and the court made it clear that they can’t over-ride provincial laws in doing so.” Young wasn’t involved in the case, but took a keen interest in the outcome given her area of practice, and says it sends a clear message to other municipalities. “If other municipalities were trying to do the same thing, I think they would have to be having a look at that and stepping back,” she said. “The court has made it pretty clear that they’re not going to be able to do that.”


The decision came in response to a petition filed by StevensVirgin Law Corp. on behalf of a numbered company owned by Avtar Dhillon, principal of Emerald Health Therapeutics Inc. Emerald initially grabbed headlines


last year when it partnered with Village Farms International Inc. to form Puresun Farms Inc. and convert 250,000 square feet of vegetable greenhouse in Delta to cannabis production. It was also pursuing work on a 500,000-square-foot production facility on No. 9 Road in Richmond. Richmond, however, has been cool to cannabis since commercial


example from tomatoes to cucumbers, there would be no principled basis on which to post a stop work order,” Masuhara said. “While Richmond may wish to consider the different impacts of certain crops and require certain farmers to obtain new permits to do so, there is simply no current mechanism for this in the context of the stop work order.” Moreover, he pointed out that the


greenhouse was approved knowing that it might be used for “alternative crops.” Richmond’s suspicion that a building might be used for illegal purposes also wasn’t enough to withhold building approvals. “The future possibility that illegal


FILE PHOTO


production of medicinal marijuana was legalized in 2013. With growers ramping up production in anticipation of the recreational market, Richmond passed a bylaw this summer to limit farms with non-permeable flooring. The move was widely seen as a precursor to a provincial regulation in July. In January 2018, Richmond also issued a stop-work order against the first 75,775-square-foot greenhouse Emerald was building in East Richmond on the grounds that it missed an inspection. Meanwhile, it discovered that the facility would be producing cannabis rather than microgreens, and – according to court documents – took the position that


cannabis was an illegal product and prohibited under local zoning. The same concerns have also


delayed approvals for a second greenhouse of the same size as the first, as well as an associated electrical building. The barriers prompted Emerald to seek redress through the courts, something Justice David Masuhara granted. In his decision, Masuhara said


Richmond had no grounds for maintaining a stop work order or delaying building permits on the basis that the proposed greenhouse might be growing a crop it didn’t like. “Richmond acknowledges that if a person wanted to change the intended crop in a greenhouse, for


activity will occur on the Property is not a proper consideration in refusing to lift the stop work order,” Masuhara said, concluding: “The stop work order should be lifted.” The delays Richmond caused Emerald shouldn’t prevent it from continuing work on its facilities, Masuhara added, even though the province has limited the kinds of systems allowed for cannabis production in the ALR. A regulation introduced July 13 limited cannabis to existing crop production structures, while new farms must have soil-based production systems. The decision doesn’t challenge


provincial limits on how cannabis can be grown within the ALR, however. “I don’t think the judge’s decision


takes away from the regulatory change,” says Young. StevensVirgin associate counsel Nathalie Baker, who represented Emerald, was not available to comment on the outcome of the case prior to deadline.


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