When writing a column you do want feedback. The ones below gave me a little more blowback than usual, and from both sides of the issue (a good thing??). So I guess it's important to read both, and love to know what you think. These first appeared in the Island Farmer.
A Better Way to Find Justice
It was the retrial of Brookfield Gardens earlier this month on charges related to a fish kill in the North River 4 years ago that got me thinking about how the justice system deals with environmental infractions. Understandably we want those responsible for fish kills or other environmental violations held accountable, but these trials create enormous bitterness and cynicism amongst farmers, the very people we want using good sense and judgement in their day to day use of pesticides. Is there a better way?
Restorative justice is a legal concept that’s gaining support for dealing with certain kinds of crimes, where there has been loss of, or harm to, property not persons. It’s based on the idea that the person found culpable acknowledges and takes responsibility for the harm done in a way that satisfies the people who were harmed, and because of that understanding doesn’t re-offend. I know it sounds a little soft-headed, but let’s think about how these cases are handled now.
Investigations of fish kills aren’t easy. Soil samples, and water runoff are collected, dead fish are analysed. Finding a “smoking gun” only happens occasionally. Instead spraying records are collected from all farmers in the watershed. In some cases charges stem from this paperwork investigation that have no actual link to the fish kill. Alex Docherty, a high profile potato grower has never been shy about arguing he’s the victim of a witch hunt related to a fish kill in the Clyde River 2 years ago. There’s been no evidence presented so far that he had anything to do directly with the fish kill, but he was charged with administrative offences under the Pesticide Act related to spraying a neighbour’s field. To Docherty it feels like there was political pressure to lay some charges related to this fish kill, and he was a good catch. Emails Docherty has collected through an access to information request show a variety of government officials including in the premier’s office were informed once the charges were laid.
It’s the cynicism and lack of respect Docherty and many other farmers have developed for the enforcement system that worry me the most. Why? It’s the farmers themselves responsible for filling out the paperwork that is so important to these investigations: wind speed, air temperature and so on. I can’t help but think that if I had had to fill out paperwork every night about how fast I was driving commuting to Charlottetown I’d never admit to more than 10 clicks over the speed limit and probably not even that, even though I always drove much faster. Are farmers any different?
Then when farmers do end up in court smart and very expensive defence lawyers twist and turn words to try to get their clients off: What’s the definition of a waterway? What does cultivate mean? This just feels so unproductive.
Let’s think about Brookfield Gardens again. Anybody who knows them recognizes that the owners, the Dykermans, are good people, producing a variety of important vegetable crops, and transitioning over the last decade to an organic operation. They acknowledge that they made a bad mistake in the summer of 2014, producing a conventional carrot crop on sloping land. Some of the charges they faced were because they were trying to add forage to expand the buffer zone to prevent run-off. Chief justice Nancy Orr, who’s shown common sense in cases like this, found Brookfield not guilty in the original trial. However her decision was later overturned because other judges ruled she didn’t have enough evidence to support the verdict. I think she did, because she knew the most important thing: these farmers would never do this again. Had it been handled through restorative justice, the Dykermans could have acknowledged their mistake to the community, the local watershed group, and recommitted to the good farming practices they already use. That’s how you develop accountability.
One more example of the importance of farmers finding the right reason to farm responsibly, rather than just fear of the law. There is a lot of sloping land, and potato farming in and around Souris, but so far no fish kills over the years. Can this be linked to the long standing effort of the local watershed group to have farmers and others talk to each other and try to understand the challenges farmers face, and the need to preserve natural areas to support fishing and tourism? That’s very different from other rural communities where farmers can be regarded as troublemakers and even shunned.
I’m not suggesting we can all have a “kumbaya” moment and everything will be OK, or that regulations and an enforcement regime aren’t needed. I want responsible people handling pesticides, committed to protecting the health of their neighbours, local wildlife and waterways. I want caution and good judgement, not a tape measure used to determine the size of buffer zones. I’m not convinced that lots of red tape and paperwork, and the threat of the heavy hand of the justice system, gets us that.
I’ve Got Some Explaining To Do
I’ve had a fair bit of reaction to my last column, some positive, much more of it negative. I always appreciate the feedback. I’d argued that a legal concept called restorative justice might be a better way to handle some environmental infractions like fish kills. Anyone found responsible would have to answer to the community of people who were harmed rather than the courts. I’m going to dig the hole I’m in a little deeper.
My concern is that too many farmers, most who act very responsibly, feel cynicism and disrespect for environmental regulations and the people who enforce them. If they are charged it’s like the rest of us stopped for speeding, anger at getting caught, rather than any sense of guilt. At the same time many in the public have little confidence in the willingness and the ability of the province to properly manage farmers, especially in the use of pesticides. They feel that the system is too full of carrots and not enough sticks.
What makes environmental laws different from other criminal matters is that those charged are guilty until proven innocent (thanks to a course I’ve been taking at Holland College on water management for that). Something has happened, and the person responsible is considered guilty and liable for punishment. The only defense is “due diligence”, did the person take all the reasonable steps expected to prevent the damage from occurring. This can frustrate many because judges will issue “not guilty" verdicts even though the persons charged were clearly responsible.
It’s why record keeping is so important. It’s the only way someone can prove that he/she did practice “due diligence”. Unfortunately most farmers don’t see it that way, but simply more paperwork and red tape. And it gets worse. In the last column I raised questions about whether farmers (or anyone) would voluntarily record damning information. As some farmers have put it “Why would I provide evidence for my own prosecution?”
And we have to remember there’s another kind of “due diligence” farmers have to practice. Banks and other lenders, crop insurance agreements, contracted buyers and so on require farmers to manage their crop properly, including using pesticides to control disease and insect damage.
Most of the criticism I received (from people I respect) was that restorative justice doesn’t properly punish those who commit serious environmental crimes, that farmers who treat the legal system and the environment with contempt shouldn’t be given another “get out of jail free card”.
When I first read about restorative justice a decade ago I had much the same feeling, that the courts, crown attorneys and judges, were the best way to judge crimes, and meet out punishment. I began to think a little differently because of an idea that’s central to restorative justice: normally those charged feel they’re answering to “the state”, with all of the resources and power that entails. They feel every right to fight back, and resent the fact that, in their minds, it’s not a fair fight. With restorative justice they’re answering to the actual people who were harmed, made to understand the damage done. The people who were harmed get to agree on restitution, how to make things right. Restorative justice supporters say when people have a proper understanding of the harm they’ve done, rather than anger and resentment towards the legal system, there’s a much better chance at deterrence.
I’m not so dumb that I don’t recognize that there are cases where farmers are not prepared to meet with neighbours or local watershed groups, or even acknowledge they’ve done anything wrong. These cases can continue to go through the normal court system including, where appropriate, use of the much heavier fines under the federal Fisheries Act, for allowing a “deleterious substance” to enter a waterway.
I also think there are generational issues here. Most of todays older farmers started driving tractors, cultivating and spraying when they were teenagers or younger. They’re now being told they have to write tests, keep records, and many resent it. The next generation is probably more prepared to accept food safety protocols, traceability requirements, the need for certification, and so on. They don’t necessarily like it, but know this is what’s required to satisfy the demands of the marketplace. (I wish they could be properly compensated for the extra work.)
Technology is helping too. Newer sprayers can better calibrate application rates and use GPS to prevent spraying in environmentally sensitive areas. The sprayers don’t have surplus mixed pesticide at the end that has to be dumped. These sprayers are not cheap, but will better protect people including the applicator, and the environment.
I wrote about this because I’m concerned we’re becoming very tribal when it comes to pesticide use, unwilling to listen to or believe “the other”. With extreme weather becoming the norm, the day to day decisions of farmers are becoming that much more critical. PEI doesn’t have the resources or the political will to monitor every farmer (a drone over every field?) so we have to find other ways to have confidence that farmers are acting responsibly. Using fear of the justice system, layering on the paperwork, is one way to do this. Is there a better way?