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?

Karl
is long gone now. I first met him when he was 75 and I was in my early
20’s. A farmer friend of mine who lived across the road from Karl’s farm
introduced us. Karl was born in Denmark near the start of the last
century. He had come to Canada in the mid 1920’s, an optimistic young
man in his own early 20’s, lured by the government of the day’s offer of
free land to farm. The land turned out to be in Manitoba, north of
Winnipeg. After a few years Karl moved to Southern Ontario where the
land was better and the winters were shorter and not as harsh.
When
my friend and I knocked on Karl’s door it was mid-afternoon and we were
ushered into the kitchen, the normal farm home visiting spot that
usually has its own convenient outside door. Karl had already been a
widower for a few years but some vestiges of a woman’s touch still
remained in the room with its old wooden chairs and worn linoleum floor.
His kids had long since grown up and left the farm, so Karl lived
alone. He was wearing the standard farmer work clothes: faded green work
pants and shirt, suspenders and a matching cap. Karl was old school so
his cap was plain, without the logo of some seed company or tractor
manufacturer.
Karl’s
attitude was old school too. He came from a time when farming was a way
of life rather than a job or a “career path”. He was cynical,
suspicious of politicians, suspicious of the government and anything
they did that resembled central planning, suspicious of bankers and
businessmen that set the prices and controlled the markets. His voice
had a tone of mild amusement, as did his expression and the twinkle in
his eye.
We
discussed the usual topics of interest to farmers: the weather, the
economy, politics and current events. I then asked him some inane
question about farming and how he got started and his answer has stuck
with me ever since. In many ways it sums up not just farming but much
about our modern world, the economy and life in general. He paused,
looked at me for a while as if to ask “are you serious?” and then
replied as follows:
“When
I started farming I grew some corn. I got a pig and built a shed for
it. I fed it the corn and shovelled the shit into a pile outside. The
next year I spread the shit on the field and grew more corn, enough to
feed a couple of pigs. I had a bigger pile of shit. I spread the shit on
the field and grew even more corn. I got a few more pigs so I had to
build a barn. The pile of shit got even bigger, so big that I had to get
a tractor with a loader to move it around and spread it on the field. I
grew a whole lot more corn, enough to feed way more pigs so I had to
put an addition on the barn. I have been doing this over and over again
every year for almost fifty years. Now I have a really big pile of
shit.”
Something Old Is New Again
First Published in Island Farmer
A century ago Islanders had
no choice but to buy local. In fact PEI had become a breadbasket for the
Maritimes and New England. For the last
fifty years, fuelled by free trade deals and international development schemes, a
global supply chain that delivers extraordinary value took over and consumers
became hooked on “the lowest price is the law”.
Now we're seeing a change again.
Large food retailers are responding to a growing interest in “local”,
and provincial governments here in the
Maritimes are announcing new efforts to get more consumers to think “local”
when food shopping. It’s a welcome
development that needs to go well beyond just promotion.
Last week PEI
announced the Food Security and Food
Education program. A $100,000 will be spent to supply 3 schools with fresh
local products, and give students more information about the importance of
nutrition, and where their food comes from. It's a start at ensuring that some
of the 1 in 5 students who come to school hungry are fed. "At the same time, we want to engage
Islanders in a conversation about where their food comes from and the efforts
of our hard working farming and fishing families" says Minister Alan McIsaac. New Brunswick has upped its game too. N.B. minister Rick Doucet wants to see a
local food culture develop in the province.
“The promotion of local food and beverages has been identified as a key
opportunity in the New Brunswick Economic Growth Plan” says Doucet
in a release. New co-operatives are
being developed to supply schools in the North-East. And
“Agri-food” as it’s come to be known even got high profile recognition
in the last Federal Budget.
What’s going on here? I think especially here in the Maritimes
other development initiatives that held promise like the energy sector, and
high tech, are stalled or failing, and
governments are looking for something they think can succeed . Obviously everyone has to eat, and the logic
of encouraging consumers to ensure food
dollars stay local and get re-spent here rather than being whisked off to South
America or China is pretty obvious, but that’s not to say that any of this is
easy. Don’t forget that large food
retailers, especially with in-store brands,
have spent decades playing down or hiding where packaged food comes
from, letting the brand and the price be the selling points. And there's this: consumers want choice and
don’t like to be told what to do. As Terry O’Reilly reminds us every week on
CBC Radio’s Under the Influence very smart marketers struggle to get the right
mix of information and emotional content to push people to buy products. There
is a hard core group of consumers with enough time and money who are
determinately local, but while
supporting the home team sounds good, cost will always be critical for many other families. I think Rick Doucet's idea of creating a
“culture” of local food buying is important, but that will take time.
That's why I think PEI's
new program is so important. A market is a very precious thing for farmers. A
market that assures a fair return is even better. There's a lot of public money
spent on food, not only in schools, but hospitals, prisons, nursing homes. Why
not use that money to support local farmers and meet environmental goals at the
same time. Make a percentage of these
purchases, say 10 to 15%, from organic farmers, and increase that over time.
Make crop rotations or soil organic matter a condition of purchase. “Pulling”
farmers into profitable markets with environmental standards would reward those
already farming sustainably, and give others more reason to change. “Pushing”
farmers to change with regulations or angry letters to the editor hasn't done
much but make farmers feel angry and isolated.
This will require a lot of
planning and some investment. Fresh produce and fruit is mostly available when
school is out, so proper storage will be important. Over time it will take
groups of farmers to meet the quantity required, so some kind of “hub” will be needed. The new provincial “free trade” agreement will have language about equal
access to government tenders which will complicate things. And if farmers are
payed a “fair price”, as they should be, there will be complaints that
taxpayers are being gouged.
Let's think about the
positive side. Small and medium sized
farmers will have the chance at more income security. Larger farmers will have
more reason to diversify, and turn away from commodity markets if they're not
getting a fair shake. Consumers and taxpayers will have a direct stake in
improving opportunities in rural areas, and protecting the natural resources we
all benefit from.
I don't want to seem
completely naive about this. PEI's small
population will always push our farmers into export markets dominated by larger
players, but if consumers and governments create demand for local food and food
products, there will be more food security at a time of climate change and
political instability, and economic security in rural areas. The food business is ruthlessly
competitive. Let's make sure as
consumers we're thinking hard about where our food dollars go. It's one of the
most important decisions we make every day.
Who Pays for Surpluses
First Published in Island Farmer
It was the National Post headline that
finally did it for me: “After a nuclear war, only cockroaches and supply
management would be left.” The vitriol
coming from mainly the national business media against supply management has
been astounding. It was unleashed with the bellowing of U.S. President “You Know
Who” at a news conference in Wisconsin, uttering his usual mix of hyperbole
(disgrace, disaster) and untruths. It
will end at a NAFTA negotiating table months from now, and it matters a lot to
Maritime farmers.
My interest in, and yes support for, supply
management comes not from being any smarter than anyone else, but how I look at
the food system. Most Canadians, and
Toronto based business writers, only see the back end of the food chain,
supermarket shelves, where price, competition, and variety can easily be
judged. And if a Toronto journalist
can’t get fancy European cheeses at rock bottom prices, then something must be
wrong. I’ve spent most of my time trying
to understand the front end, how
economics, history, environment, government and trade policies
affect primary producers. Yes farmers
always complain that times are tough, but that anxiety comes from having so
little control over what happens season to season. The weather, here and
elsewhere, disease and insect pressures,
politics, consumer tastes and so on are difficult
enough to control, but the real
challenge is this: thousands of small business people make decisions for
markets controlled by very few. The handful of processors, brokers, wholesalers,
and retailers have one interest, to pay
the least they can, to support their own business interests, and convince
consumers they’re getting good value, and they almost always get their way. The quickest way to assure low prices is a surplus, or at
least the perception of one. If farmers
are convinced prices aren’t going to improve, they’ll sell for what they can
get because the alternative is even
worse, getting nothing at all.
That’s what Canadian dairy farmers faced in
the 1970’s when there were fierce demonstrations demanding government action.
That’s what Wisconsin dairy farmers are facing right now. The Canadian solution back then (thank you
Eugene Whelan) was supply management. Limit
production to Canadian demand using quotas, and assure farmers a fair price
(based on costs of efficient producers).
And yes to make the system work high tariffs are used to keep cheaper imports
out. That’s what the “free traders” and
business media find so offensive. The
question that never gets asked is why are these imported dairy products
cheaper? Two words, taxpayer subsidies.
Wisconsin bills itself as “America’s Dairyland”. Between 1995 and 2014, Wisconsin dairy farmers received $1.2 Billion
(with a B) in subsidies under a variety of programs: “Milk Income Loss Payment”, “Market Loss Assistance”, “Market Income Loss Transitional
Payment”, “Dairy Economic Loss
Assistance Program”, “Dairy Disaster
Assistance”, and so on. They are asking
for more support as you read this. The continuing problem then and now, no surprise, surplus milk in the U.S., and over the last 18
months, world wide. Wisconsin dairy farmer Sarah Lloyd told CBC,
Canada isn’t the problem. "Suddenly,
everyone was pointing the finger at Canada, but that's not really what's going
on. We have overproduction here in Wisconsin, and we really need to address
that here at home.”
Here in Canada milk
producers receive no taxpayer subsidies. They get paid once by their dairy
processor. Yes many dairy products are
more expensive than in the U.S., but so are cars, booze, cell phones, airline tickets, I could go on.
Three more things you won’t read about in
the National Post or the Globe and Mail. The U.S.
already has a trade surplus in dairy products to Canada worth $400
Million (don’t forget that dairy farmers here produce to supply Canadians, not
compete in export markets). Most
American farmers use rBST, a controversial growth hormone outlawed in Canada,
which extends the time cows can be milked before being bred again. There are
human health risks, including increased levels of mastitis in these cows which leads
to more use of antibiotics. And lastly, something very important I think , is how low prices are forcing medium and
small dairy farmers in America out of
business. 25% of U.S. farms now produce
close to 90% of the milk supply. That means very large operations milking a
thousand cows and more. In Canada,
medium sized dairy farms (60-80 cows) can make it, especially if there’s good
breeding stock for extra income. These
are farms with middle-class incomes, paying
their bills, taking care of their land. We need more farms like that in the
Maritimes, not fewer.
I don’t expect Donald Trump to know much
about anything, I do blame many in the
Canadian media for their lazy, one-sided reporting on this issue. And to both, let’s not have
a nuclear war to find out what’s left.