Friday, 20 April 2012

The "or" Gets You Everytime

I don't think there are really any winners coming out of Tuesday's court case heard in Summerside where farmer Warren Ellis had to answer charges of buffer zone violations linked to a fishkill last July where hundreds of fish from three rivers died from pesticide poisoning.   Ellis' reputation has taken a beating since the charges were laid, and there's no doubt that his lawyer used a loophole in what once again has proven to be poorly worded legislation, to get the charges dismissed. That's what lawyers do, and that's what the courts are for, but  many in the public, and in the farming community, were looking for something more rigorous than a technical decision.  

I haven't found anyone able to explain why there is an "or" in PEI's buffer zone regulations when it comes to grassed headlands, other than giving the minister and department a little more flexibility in how the regulations are interpreted.   Explaining the use of grassed headlands is a little like trying to explain relativity theory, but here goes. It relates to row crops that go up and down, rather than parallel, to the boundary of a waterway. With the ground in between rows of hilled potatoes for example acting like a rain gutter, there's obviously huge risk of run-off if the rows are pointed towards the waterway.  So if the end of rows are within 200 metres of a waterway (the 200 metres is not the size of the buffer, but used to determine those fields that must have a grassed  headland), then there should be 10 metres of grassed area that's been planted the year before PLUS the normal fifteen meter buffer for all fields that are row cropped around water. The regulations (watch for the OR) look like this:

7. (2) No person shall, without a grass headland variance or grass
headland exemption, and other than in accordance with the terms and
conditions thereof, cultivate a row crop within 200 metres of any
watercourse boundary or wetland boundary unless every row that ends
within 200 metres of any watercourse boundary or wetland boundary
ends at
(a) a grass headland; OR
(b) a buffer zone.

Warren Ellis' lawyer argued he did have "a buffer zone", and the charges were dismissed.  Given the reference to a grassed headland variance and exemption in the opening section, there seems little reason to thrown in another choice at the end. 

We have to remember that a very smart lawyer was seconded to the Environment Department for a year to re-write the buffer zone regulations so they would stand up in court. Several people have said the  regulations were pretty air-tight coming out of that process, but then massaged at the political level. Whatever happened it's back to the drawing board.

It's been generous (and true) for people who have been working so hard to improve the health of watersheds to also tell the media that they recognize the large numbers of farmers who follow the law, or go above it. Their anger and discouragement has been felt in the larger farming community as well. .  In the past  farmers would start the conversation blaming the media for rushing to judgement, or being defensive about the need to protect crops, but not this time. 

It's hard to see anything constructive coming out of this. Warren Ellis has spent a lot of money he probably doesn't have to defend himself, the public is left once more wondering how  hundreds of dead fish can wash up and no one is held accountable, and  many  will be thinking "potato farmers have gotten away with murder again."  If the end result are new regulations that are too restrictive or punitive,  then the many farmers doing what's right get punished too.  The government should stick to the basics: a 3 year rotation should be a 3 year rotation, not ten different ways to get around it, and the requirement of a grassed headland should mean just that. It's the "but's" and "or's" that get you every time.

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