B.C. Court of Appeal strikes down City of Victoria’s plastic bag ban

B.C. Court of Appeal strikes down City of Victoria's plastic bag ban
WatchVictoria's bid to create a greener city has run into a major roadblock. One year after the city banned single-use plastic shopping bags, the bylaw was overturned by the B.C. Court of Appeal, Julian Kolsut reports.

The B.C. Court of Appeal has struck down Victoria’s plastic bag ban.

On Wednesday, the B.C. Court of Appeal released its judgment, which overturned the BC Supreme Court decision and struck down the City of Victoria Checkout Bag Regulation Bylaw.

In the written ruling, the court found the bylaw is intended to regulate businesses from providing plastic checkout bags but its aim was to protect the environment, and the effects of the bylaw are felt by businesses.

Under the requirements of the Community Charter, which provides the statutory framework for all municipalities in B.C. (except the City of Vancouver), provincial approval for the bylaw was required. The City of Victoria did not get approval, making the bylaw not valid.

“We didn’t think to go to the minister of environment because our interpretation this is clearly within the jurisdiction of local governments. This is a business regulation bylaw, we have the ability to regulate businesses to reflect the values of our community,” said Victoria mayor Lisa Helps.

The appeal launched by the Canadian Plastic Bag Association, which represents a “wide range of manufacturers and distributors of plastic shopping bags” across Canada. The association argued municipalities in B.C. don’t have the authority to regulate the environment or the right to block a product and financially impact manufacturers. In an earlier decision, a B.C. Supreme Court judge upheld the bylaw, ruling that cities have the power to regulate business transactions as part of their responsibility to manage waste.

“While the city’s intentions in passing the bylaw were no doubt reasonable, we must give effect to the clear instructions of s. 9(3) [of the Community Charter] requiring the Environment Minister’s approval. Whatever the reason for not seeking that approval in July 2018, it will now presumably be sought,”  Justice Mary Newbury said in the ruling.

“One can understand that the province might wish to have the right to approve, or withhold approval of, municipal bylaws relating to environmental protection in order to ensure that a patchwork of different municipal laws does not hamper provincial environmental programs.”

Helps said they will be reviewing the decision and will consider all options. She is encouraging businesses and shoppers to “stay-the-course” on reusable checkout bags.

“Bring your bags. if you are going shopping at any store this weekend in the region, bring your reusable bags, you don’t need legislation about behavior that is going to support sustainable business practices,” said Helps.

“We’ve been in touch with all the communities today who have the bylaw or or in the process of enacting a bylaw, we have shared the decision with them, we’ve shared our thoughts with them. We will probably be caucusing to see the best way forward.”

The bylaw has been in effect since July 1, 2018, but as of July 11, 2019, it is no longer in effect. The bylaw banned the use of single-use plastic checkout bags and set a minimum price on paper and reusable checkout bags. The price was at least 15 cents for paper bags and one dollar for reusable bags.

The city said the bylaw was developed with extensive input from local businesses and the community over a two-year period. The city also states that since the bylaw was introduced, more than 17 million plastic bags have been eliminated from the community, village centres, parks and beaches

The federal government has announced it will ban harmful single-use plastics (such as plastic bags, straws, cutlery, plates, and stir sticks) as early as 2021. The District of Saanich passed a new plastic bag bylaw this year, which would take effect in Jan. 1, 2020.

“The District of Saanich is aware of the B.C. Court of Appeal’s decision in the City of Victoria case.  Given this decision, staff are in the process of investigating the options available to Saanich and any implications on our implementation of the Checkout Bag Regulation Bylaw. Next steps will be determined as soon as possible.  We remain committed to looking at ways to reduce waste from single-use plastic,” Kelsie McLeod, Saanich spokesperson, said in a statement. 

A plastic ban took effect in Tofino and Ucluelet on June 8. A single-use item regulation bylaw also took effect in Cumberland on July 1.

Tofino Mayor Josie Osborne said they will review the ruling but since the judgment is specific to Victoria, they will keep the ban. Osborne also noted that if the province reviews how municipalities should ask for approval, the ban will likely stay in effect as most of the businesses in the area got rid of plastic bags before the ban started.

Esquimalt and Nanaimo are both seeking feedback on plastic bag ban bylaw.

“It is too early at this time to say what our next steps will be,” an Esquimalt spokesperson said in a statement.

“The Township has heard our residents and remains committed to reducing single-use plastic bags. Given the recent court ruling, we are assessing our options in moving this bylaw forward.”

The City of Nanaimo also released a statement following the B.C. Court of Appeal descision.

“The City of Nanaimo recently completed its public consultation on Reducing Single Use Checkout Bags in Nanaimo, where the city asked community members and business owners for input into the proposed approach to regulating single-use checkout bags. The city notes that plastic bags are a source of contamination to both recycling and co-mingled organics, which impacts operational costs. City staff are reviewing the findings from our consultation and will present council a report in the near future, taking into considerations the B.C. Court of Appeal’s judgement.”

Local businesses say the expect Victoria resident’s to continue their green habits.

“A lot of people that have got on board with the cloth bags are going to continue, they are not going to start asking for plastic bags, they have gotten into the habit and I think that’s fantastic,” said Cindy Meikle John, owner of The Westcoast Pantry in Victoria’s Public Market.


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