Field

Part 3: Neighbors

Question 18: Is the smell of manure or the noise from farm equipment an environmental issue?

Answer:

The Environment Act does not require farmers to obtain an approval to manage the smell of manure or the noise of farm equipment.

The smell of manure or the noise from farm equipment may be an environmental issue, if the Minister of the Environment determines that the smell or noise is causing an adverse effect to the environment. Section 67 of the Environment Act prohibits the release of any substance into the environment if it is in an amount that may cause an adverse effect. The definition of “substance” is very broad and could include smell or noise. The definition of “adverse effect” is also broad and includes an effect that impairs or damages the environment, including an adverse effect respecting the health of humans or the reasonable enjoyment of life or property. Given these broad definitions, a farmer could be prosecuted for causing an adverse effect where the smell or noise has resulted only in a disturbance to a person’s reasonable enjoyment of life or property.

As a result of the broad scope of the Environment Act, the Departments of Environment and Agriculture have a Memorandum of Understanding in place which provides for a joint investigation process. When a complaint relating to agriculture is made under the Environment Act, staff of both departments will investigate. If the activity appears to be causing an adverse environmental effect, it will be handled by the NSE staff. If the activity is not causing an adverse effect to the environment but maybe a nuisance, it will be handled by the DOA staff. The DOA staff will work directly with the famer to try and solve the problem. If a resolution is not easily reached the complaint may be addressed under the Farm Practices Act (see Question 19).

For more information:

Reference Section:
Environment Act, section 3(c) and 3(au) page 8
Environment Act, section, 67 page 8

Question 19: What should I do if someone complains about my farm practices?

Answer:

Public complaints about agricultural activities are often jointly investigated by staff from the Nova Scotia Department of Agriculture and NSE. Question 18 provides an overview of the broad application of the Environment Act and the role of the joint investigation.

The NSE will look into all complaints that fall within the regulatory authority of the Nova Scotia Environment Act. In some instances, the inspector may decide that the complaint concerns a nuisance issue, such as smell or noise, and it may be addressed by the Farm Practices Act. The Farm Practices Act protects farmers who are engaged in “normal farm practices” from actions by their neighbors and others. The Act defines a “normal farm practice” as a practice that is conducted as part of an agricultural operation:

[block_indent](i) in accordance with an approved code of practice,
(ii) in accordance with a directive, guideline or policy statement set by the Minister of Agriculture with respect to an agricultural operation or normal farm practice, or
(iii) in a manner consistent with proper and accepted customs and standards as established and followed by similar agricultural operations under similar circumstances, including the use of innovative technology used with advanced management practices.[/block_indent]

The Farm Practices Act prevents a complainant from suing a farmer in nuisance unless the Farm Practices Board determines that the farmer is not using ‘normal farm practices’ or the farmer has failed to comply with an order from the Board. An application to the Farm Practices Board costs $250.00. The Board will hear the concerns of the complainant and the farmer before making a decision regarding the farm practice. The Board may choose to hold public hearings on the application. Ultimately, the Board will determine whether the activity complained of is a ‘normal farm practice’.

The Board may decide that:

• the farm is following normal practices and take no further action;
• the farmer must make changes in order to follow normal farm practices and if so, issue an order to the farmer explaining the modifications necessary; or
• the farm activity is unacceptable and orders it to cease.

Failure to comply with an order of the Board is an offence under the Act and may lead to a fine of up to $2000.00. Failure to pay a fine can lead to a prison term of up to 6 months. The decision of the Farm Practices Board can be appealed to the Supreme Court of Nova Scotia on a question of fact or law.

Whether the complaint is addressed by the NSE or the Farm Practices Board, communication with the complainant and efforts directed at resolving the concerns are often the best means of preventing future problems.

Codes of Practice: Under the Farm Practices Act, any person may ask the Minister to develop a code of practice, related to a farm activity. The Minister may refer this to the Board for an opinion. If the Board recommends the code of practice the Minister must take the steps necessary to develop a code of practice.

Restriction on application of by-laws: The Farm Practices Act requires that municipal by-laws that address nuisance, including odour, noise, dust, vibration, light, smoke or other disturbance cannot restrict a normal farm practice carried on as part of an agricultural operation.

For more information:

Reference Section:
Farm Practices Act page 21
Farm Practices Board Regulations page 23

Question 20: Can I stop someone from hunting or fishing on my land?

Answer:

Civil Action for Trespass

A person who comes on to your land without your permission or some legal authority is trespassing. There is no law in Nova Scotia that provides hunters with a legal right to hunt on private property. To ensure that hunters are aware of your property boundaries and your wish to prohibit hunting on your property, you may choose to post signs indicating “Private Property – No Trespassing or Hunting”. If you have given a person permission to hunt on your property and you wish to withdraw that permission you must inform them and give them a reasonable time to leave the property.

If a person trespasses on to your property, you have a right to take legal action against them through a lawsuit.

Protection of Property Act

The Protection of Property Act provides owners and occupiers of property with certain rights to protect their property. This law does not replace a property owner’s right to sue someone who trespasses. TheProtection of Property Act makes it an offence for any person without legal justification or permission of the occupier to:

  • enter on premises that is a lawn, garden, orchard, vineyard, golf course or acreage managed for agricultural crops;
  • enter on premises that are apparently a tree plantation area or a Christmas tree management area;
  • enter on premises that are enclosed in a manner that indicates the occupier’s intention to keep persons off the premises or to keep animals on the premises;
  • dump or deposits material of any kind or causes, suffers or permits material to be dumped or deposited on premises;
  • enter on premises where entry is prohibited by notice (i.e. no trespass sign); or
  • engage in an activity that is prohibited on the premises by notice (i.e. no hunting sign).

If your property falls into one of the categories listed above, the Protection of Property Act prohibits trespass and a police officer could arrest and detain someone who refuses to leave the property. The person can be fined up to $500.00. If the property owner asks the person to leave the premises and they refuse, they may receive a further $500.00 fine. It may be difficult for the police officer to respond if the person has already left the property.

Signs to prohibit trespass on the property must be clearly visible in daylight under normal conditions from the approach to each usual point of access to the premises.

The Protection of Property Act does allow certain activities to take place on forested land, as long as the forested land is not a tree plantation, a forestry study area, woodland being harvested or a commercial berry growing area. The Act states that on forest land a person cannot be prosecuted for failing to comply with a notice (i.e. no trespassing sign) if they are hunting (in accordance with the Wildlife Act) fishing, picnicking, camping, hiking, skiing or engaged in another recreational activity. This does not prevent the property owner from taking an action (via a lawsuit) it only means that the person will not be prosecuted under the Protection of Property Act.

Fishing

The Angling Act permits residents of Nova Scotia to go on foot along the banks of any river, stream or lake, and to cross uncultivated or Crown lands, for the purpose of lawfully fishing with rod and line in rivers, streams and lakes. The owner of the property cannot interfere with the angler’s right of entry. This law does not permit anglers to camp or drive vehicles over another person’s property. The right is strictly limited to travel on foot. The Angling Act only applies to individuals who are fishing with a rod and line. It would not apply to clam digging or other similar recreational activities.

Legal Justification

Other provincial laws, such as the Land Surveyors Act, Mineral Resources Act, Endangered Species Actand Wildlife Act provide certain government officials or classes of individuals the right to enter private land. Their right to enter private land is restricted to carrying out the activities under the law. For example, a land surveyor does not have the right to enter private property to hunt.

Right of Way

A person may gain legal access to private property through a right of way. For example, a person who owns property behind yours may have a right to cross your property to access their land. A “right of way” runs with the land. In other words, if you grant a right of way to a neighbor, the right of way continues even if you sell the land to someone else. Under the Private Ways Act, the government has the power to issue a right of way in special circumstances.

For more information:

Reference Section:
Protection of Property Act, sections 3, 7, 15 page 36
Angling Act, section 3 page 6
Land Surveyors Act, section 15 page 27
Endangered Species Act, section 7(6) page 7
Wildlife Act, section 96 page 39

Question 21: How can I prevent all terrain vehicles (ATV’s) from driving on my property? Are there restrictions on the operation of an off-highway vehicle for farm use?

Answer:

The Nova Scotia Off-Highway Vehicles Act provides that no person can operate an off-highway vehicle on a sidewalk, walkway, school grounds, utility service lane, cultivated land, private forest land, campground, golf course, park, playground or any private property, without the written permission of the owner or occupier. The Act further prohibits the operation of an off-highway vehicle in or on a wetland, swamp, marsh, watercourse (unless frozen), a sand dune, a coastal or highland barren or a designated sensitive area.4

The Act defines ‘off-highway vehicle’ to include a snow vehicle, all-terrain vehicle, motorcycle, mini bike, four-wheel-drive or low-tire-pressure vehicle or a dune buggy.

The owner, operator or passenger of an off-highway vehicle who is traveling on private land assumes all risks related to the use of the off-highway vehicle, except a deliberate danger created by the owner/occupier of the land intended to do harm. The assumption of risk exists even where permission to enter onto the land has been granted. Furthermore, a person operating an off-highway vehicle cannot annoy or worry a domestic or farm animal or wildlife and they cannot increase the original noise level of the machine. Any person who violates the Off-Highway Vehicles Act may be charged with an offence and fined not less than $250.00 and not more than $2000.00.

Although there are no restrictions that specifically relate to the use of ATVs on farms (for farming purposes), the Act does require any person who operates an off-highway vehicle to have a permit and the owner of the vehicle to be in possession of an identification number for that vehicle. As well, the operator must complete safety training and be certified. The Act prohibits a child under the age of 14 from operating an all terrain vehicle.5 A young person between the ages of 14 and 16 can operate an off-highway vehicle under the direct supervision of a parent. The parent and the child must be certified to operate the vehicle.

The Protection of Property Act states that every person who disturbs an occupier of premises by the unreasonable operation for recreational purposes of a motor vehicle, or in the vicinity of the premises is guilty of an offence and liable of a fine of up to $500.00.

The use of an ATV on private property without the owner’s permission is trespass. The property owner has the right to take legal action (lawsuit) against the trespasser. For more information on trespass, see Question 20.

For more information:

Reference Section:
Off-Highway Vehicles Act, sections 2, 12-16 page 34
Protection of Property Act, section 7 page 36

 

4There are some limited exceptions to these prohibitions in section 12A (2)-(4).
5Children under the age of 14 can operate snowmobiles, motorcycles, mini-bikes and dune buggies in restricted circumstances.

Question 22: If someone comes on to my property uninvited am I responsible if that person is accidentally injured by a fence or other structure on my property?

Answer:

The Nova Scotia Occupiers’ Liability Act requires occupier’s of property to exercise a certain level of care to protect any person who enters their property, even where that person is uninvited.

In general, an occupier must ensure that their property is reasonably safe. This duty applies to the

(1) condition of the property,

(2) activities on the premises, and

(3) conduct of third parties on the premises.

A judge would consider the following to determine whether the occupier of the property has discharged their duty to protect persons who enter their property:

  • the knowledge that the occupier has or ought to have of the likelihood of persons or property being on the premises;
  • the circumstances of the entry into the premises;
  • the age of the person entering the premises;
  • the ability of the person entering the premises to appreciate the danger;
  • the effort made by the occupier to give warning of the danger concerned or to discourage persons from incurring the risk; and
  • whether the risk is one against which, in all the circumstances of the case, the occupier may reasonably be expected to offer some protection.

Generally, a greater responsibility exists to protect persons who are invited on to your property, particularly if they have paid to be there.

Persons engaged in criminal activity

If a person is trespassing and is engaged in criminal activity, such as theft, the only duty required is the duty not to create a danger with the deliberate intent of doing harm or damage to the person; and not to act with reckless disregard of the presence of the person.

Persons on off-highway vehicles

If a person is operating an off-highway vehicle or is a passenger on an off-highway vehicle, the Off-highway Vehicles Act limits the duty of the landowner or occupier to a duty not to create a danger with the deliberate intent of doing harm. This limited duty applies even where permission has been granted to enter the property (see Question 21).

Limited duty on certain types of property

The duty to provide protection on certain types of property is also limited. For example:

  • land used primarily for agricultural or forestry purposes;
  • vacant or undeveloped rural land;
  • forested or wilderness land;
  • private roads situated on lands referred to above;
  • other private roads that are reasonably marked by notice as private, where persons are physically restricted from access by a gate or other structure; and
  • recreational trails reasonably marked by notice as such.

For these properties, any person who enters the premises is deemed to have willingly assumed all the risks and the only duty created is to not create a danger with the deliberate intent of doing harm or damage to the person or property of that person; and not to act with reckless disregard of the presence of the person or property of that person.

The Trails Act limits liability for owners or occupiers of property that have a designated trail running through the property. The property owner or occupier is only liable if they create a danger with deliberate intent of doing harm or damage to the person using the trail or the person’s property.

For more information:

Reference Section:
Occupiers Liability Act, sections 2, 4-6 page 32
Off-Highway Vehicles Act, section 14A page 34
Trails Act, section 18 page 38

Question 23: Am I required to maintain a particular type of fence for my livestock?

Answer:

Fences and Impounding of Animals Act

Yes. The Nova Scotia Fences and Impounding of Animals Act requires all fences of enclosed lands to be built of stones, pickets, boards, logs, poles, brush, posts and rails, or posts and wires, barbed or plain, unless the lands are bounded by unfordable ponds, rivers or the sea or surrounded by sufficient hedges.

The Fences and Impounding of Animals Act only applies to municipalities that are not designated under the Fences and Detention of Stray Livestock Act. See the list of municipalities in the Reference Section.

Fences and Detention of Stray Livestock Act

The Nova Scotia Fences and Detention of Stray Livestock Act provides that the owner of a livestock farm must build and maintain fences adequate to prevent his livestock from escaping from his farm. Under this Act if any person believes that a livestock fence is not adequate, he may notify the clerk of the municipality in which the land is located and the clerk will refer the matter to the chair of the fences arbitration committee for that municipality. The fences arbitration committee will convene within 7 days of receiving the referral and the appropriate fee, to address the issue of concern. Following consultation with the affected parties the committee may issue an order to:

  • determine the location, height and materials of construction of any fence;
  • determine the manner of maintenance of a fence;
  • direct the owner of a farm to construct or maintain any fence in accordance with this Act;
  • determine the proportion of costs of building and maintaining any fences and common boundaries to be borne by each of the adjoining livestock farm owners pursuant to this Act;
  • take any immediate action necessary including, the removal and boarding of livestock if it is determined there is a risk to the public, the livestock or property.

If livestock stray onto another person’s land and that person does not know who owns the livestock, they can detain the livestock. If the livestock remains unclaimed (after advertisements, etc.) the fences arbitration committee for the municipality can sell the livestock. If your livestock causes damage you must pay the injured person compensation.

Not all municipalities have a designation under the Fences and Detention of Stray Livestock Act. A list of the designated municipalities can be found in the Reference Section. Municipalities not designated operate under the authority of the Fences and Impounding of Animals Act in handling livestock fencing disputes.

Deer and Game Farm Animal Sites

The Deer Farming and Marketing of Deer Products Regulations under the Wildlife Act regulated deer farming in Nova Scotia. The Regulations require a deer farm license to operate a deer farm or hold a deer farm animal in captivity. Appropriate fencing is a condition of a license. If a deer farm animal escapes the license holder must notify the Minister of Natural Resources within 24 hours of the escape and provide a full report to the Minister within fifteen days. If the animal is not recovered within fifteen days of the date of notification, it becomes the property of the Crown.

For more information:

Reference Section:
Fences and Impounding of Animals Act, sections 3-5 page 26
Fences and Detention of Stray Livestock Act, sections 5, 6, 9 page 24
Municipalities Designated under the Act page 25
Deer Farming and Marketing of Deer Products Regulations,
Sections 2, 4, 11 page 39