Only after the last tree has been cut down.  Only after the last river has been poisoned.  Only after the last fish has been caught.  Only then will you find that money cannot be eaten.

"When an activity raises threats of harm to human health or the environment, precautionary measures should be taken even if some cause and effect relationships are not fully established scientifically. In this context the proponent of an activity, rather than the public, should bear the burden of proof." - Wingspread Statement of the Precautionary Principle.


The following is the written judgement in the case of Elite Swine Inc. vs. the RM of Moosomin. Moosomin is located in southeastern Saskatchewan. The company was appealing a lower court decision that upheld the RM's decision not to approve an ILO, which is a discretionary use. The appeal was dismissed, so the ILO is not approved.


Date of Judgment:
March 15, 2007 (orally)
Citation: 2007 SKCA 38 Date: 20070315

Between: Docket: 1337

Elite Swine Inc., Gateway Farms Inc. and Lorne Crosson

- and -

The Rural Municipality of Moosomin No. 121

Cameron, Sherstobitoff & Lane JJ.A.

Diana Lee for the Appellants
Robert Leurer, Q.C. for the Respondent

From: 2006 SKQB 314
March 15, 2007
Disposition: Dismissed (orally)
Written Reasons:
April 2, 2007
By: The Honourable Mr. Justice Sherstobitoff
In Concurrence: The Honourable Mr. Justice Cameron
The Honourable Mr. Justice Lane


[1] This appeal was dismissed from the bench with brief written reasons to follow. These are the reasons.

[2] The issue in this appeal is whether the respondent municipality, in refusing to grant a permit to the appellants to establish an intensive livestock operation (ILO) in the municipality, denied the appellants procedural fairness. In an application for judicial review the appellants alleged that they had a reasonable apprehension of bias on the part of some members of the council of the municipality. They further alleged that adequate reasons for the decision of council were not given, and if the reasons were adequate, the decision was patently unreasonable. The application for judicial review was dismissed and the appeal is from that order of dismissal.

[3] In 2003, the appellants applied for a development permit allowing them to establish an intensive swine operation in the municipality. In
Saskatchewan , three separate regulatory bodies must approve such applications before an ILO may be established. Land use approval must be obtained from the municipality in which the ILO is to be situated. Environmental approval must be obtained from Saskatchewan Agriculture and Food (SAF), a department of the government of Saskatchewan . Water use approval must be obtained from the Saskatchewan Watershed Authority (SWA), a body created by statute.

[4] The Planning and Development Act, 1983, S.S. 1983-4, c. P-13.1 governs the development of land. Under the authority of s. 42, the respondent municipality adopted a basic planning statement setting out the objectives for the future development of the municipality, and a statement of objectives to be accomplished by a zoning by-law implementing those goals. It also passed a zoning by-law implementing those objectives.

[5] The following is an excerpt from the planning statement:
3.3.3. Intensive Agriculture
(1) In general, Council will support the development of intensive agricultural and livestock operations unless specific locational conflicts would be created.
(2) Intensive agricultural operations and intensive livestock operations (ILOS) will be discretionary uses ...
(5) In order to minimize conflict between intensive livestock operations and surrounding development, Council will consider applications for development of an I.L.O. and apply the following criteria:
b) The applicant has demonstrated to the satisfaction of Council that the water supply is sufficient for the development and the supply for neighbouring developments will not be adversely affected by the proposed operation. [Emphasis added]

[6] Section 5.2 of the zoning bylaw also states that intensive livestock operations are discretionary uses.

[7] Section 74(2) of The Planning and Development Act, 1983 sets out the authority of a municipal council when dealing with a discretionary use application.
               74(2) On receipt of an application for a discretionary use or discretionary form of development, the council may, by resolution or bylaw:
                              (a) reject the application;
                              (b) approve the application where the facts presented establish that the proposed use or form of  development:
                                             (i) will not be detrimental to the health, safety, convenience or general welfare of persons residing or working in the vicinity or injurious to property, improvements or potential development in the vicinity;  and
                                             (ii) complies with the applicable provisions of the zoning bylaw and will not be contrary to the development plan or the basic planning statement. ...

[8] Of particular importance in this case is s. 5.4.2(1) of the zoning bylaw which refers to water requirements:
5.4.2(1) In the application for an intensive agricultural operation the applicant shall identify the proposed supply of water for the operation where intensive irrigation is required, which supply shall be sufficient to meet the needs of that operation without detrimental effects on the supply or ground water used by neighbouring properties.

[9] The appellants' application generated controversy within the municipality, with a segment of the community vehemently opposed to the proposed ILO (although the respondent had approved an ILO involving cattle rather than swine.) As a result of the controversy, the appellants proceeded to obtain the necessary SAF approval and in fact obtained it on
December 23, 2004 .

[10] As a part of the SAF review process, the council of the municipality was asked to provide its views of the proposed development. Council commissioned a report from a land use consultant. His report was adopted by council. It recommended that council rely on SAF approval with respect to environmental concerns, and rely on SWA approval respecting water concerns, as council itself did not have the expertise to decide these questions.

[11] The necessary SWA approval was never obtained. The evidence filed showed that while the appellant had obtained the permission of the SWA to drill a test well, and that the test well indicated a sufficient flow of water for the project, the appellant had not completed the groundwater investigations required by the SWA.

[12] In the meantime, as a result of an election, some persons who had been publicly and implacably opposed to the ILO were elected to council, effective
January 1, 2005 .

[13] Thereafter, council declined to grant the permit, giving the following reasons dated
July 7, 2005 :
1. The applicant has not demonstrated to the satisfaction of council that the water supply is sufficient for the proposed operation and that the supply for neighbouring developments will not be adversely affected by the proposed operation, as required by section 3.3.3(5)(b) of the Basic Planning Statement Bylaw and clause 74(2)(b)(ii) of The Planning and Development Act, 1983.
2. The facts presented do not establish to the satisfaction of council that the proposed development will not be detrimental to the health, safety, convenience or general welfare of persons residing or working in the vicinity or injurious to property, improvements or potential development in the vicinity as required by clause 74(2)(b)(i) of The Planning and Development Act, 1983.

[14] On
September 6, 2005 , lawyers for the appellant wrote to the respondent municipality, questioning the sufficiency of the reasons, and suggesting that if the expressed concerns respecting water were genuine, the permit should be granted subject to the condition that the appellants obtain the necessary approvals from the SWA. The municipality replied on October 11, 2005 , stating that it had a legal opinion that it had no authority to grant conditional approvals. It also added to its reasons for decision by adding some additional grounds that are not germane to this appeal.

[15] The judge hearing the appellants' motion to quash and to compel the respondent to issue the permit dismissed the applications. He found the reasons given to be adequate, and respecting the allegations of bias, found no evidence that members of the council of the municipality had closed minds when they heard the application.

[16] We are all of the view that the judge decided the matter correctly.

[17] Since the appellants had not completed their water investigations or obtained the authority of the SWA to drill the wells necessary for the development, they cannot be said to have met the requirements of section 3.3.3(5)(b) of the planning statement, quoted above. The appellants seemed to assume that the municipality should rely on the SWA for these requirements, and grant the permit on condition that SWA approval be obtained, but nothing in the planning statement or zoning bylaw required it to do so. And, even assuming that the municipality was required to accept any decisions of the SWA, the SWA had not granted the necessary approvals. Thus, the application was not complete and was premature. Accordingly, the reason given by the municipality in this respect, in writing, was clear and unequivocal. Since the appellants had failed to provide proof that the water requirements of the SWA, of s.3.3.3.(5)(b) of the basic planning statement, and of s. 5.4.2(1) of the zoning bylaw, were met, it was open to council to refuse the application. While the reasons given were stated in the same terms used in s. 3.3.3.(5)(b), those reasons clearly expressed to the appellants, in a fashion understandable to anyone, the reason for dismissal of their application. The appeal cannot succeed on these grounds

[18] As to the allegations of bias, there was evidence that some persons elected to the council of the municipality effective
January 1, 2005 , were, prior to that date, publicly and implacably opposed to the proposed development. However, on the application to quash, each member of council (with one exception, which was explained) filed affidavits as to how they approached the vote on the application. The following excerpt from one of the affidavits was typical:
35. I have never had a pecuniary interest in any aspect of the Application and at no time was I required to make a declaration of pecuniary interest as required by section 45 of The Rural Municipality Act, 1989.
36. >From the time I became Reeve and therefore became a member of Council (and in fact before then), I endeavored to, and do verily believe I did, keep a mind open to persuasion as I listened to the submissions of other council members individuals and groups on the issue of whether or not Council should approve the
Application. I understood the duty placed on Council to decide the Application in accordance with section 74(2)(a) of The Planning and Development Act, 1983 and I based my decision on the considerations referred to in that section, and no others.
37. When I voted on the resolution presented to the Council on July 7, 2005 to deny the Application, I took into account and weighed in my mind all of the submissions and information presented to Council up to that date, and I voted in accordance with what I felt to be in the best interest of the municipality and in
accordance with section 74(2)(a) of The Planning and Development Act, 1983.

[19] The appellants did not cross-examine on any of the affidavits.

[20] Furthermore, as noted above, the reasons given by council for its decision were plausible reasons and do not, in themselves, indicate any bias

[21] In these circumstances, we cannot say that the judge erred in finding that the evidence did not support a finding of a reasonable apprehension of bias at the time of the vote.

[22] Since this matter may reach the council of the municipality again, it is appropriate for us to address, in a general way, the scope of the discretion invested in the council and its members by s. 3.3.3.(2) of the basic planning statement and s. 74(2) of the Act. In addressing applications such as the one in question, members of council must act in accordance with the relevant legislation, all outlined above. The basic planning statement, s. 3.3.3.(1) requires council, in general, to support the development of ILO's unless specific locational conflicts would be created. From this, it is apparent that if the requirements of the SAF and SWA were met, the discretion vested in the council of the municipality would be a narrow one, and refusal of a permit in such circumstances would have to be based on specific facts showing detriment or injury to the community or its members within the meaning of s. 74(2)(b)(i) of the Act. The legislation leaves little other scope for refusal. Those members of council and others opposed to ILO's for any other reasons would be well advised to work toward repeal or amendment of s. 3.3.3.(1), and related provisions of the legislation, rather than by opposing individual applications for permits to develop ILO's.

[23] The appeal is dismissed with costs.

Worried about ILOs
Letter to the Editor
March 15, 2004

Dear Editor:

The debate over the intensive livestock operations has been raging in this area for quite some time now. Several letters and articles have appeared in the paper with regard to this issue. Between this  and the past dispute in McAuley, I became concerned with the immediate effects that the hog barns  would have on my family and the surrounding area. As a result, I started to research the topic to  form my own opinions and I ended up doing an essay on the topic as my Environmental Issue Essay  for my Grade 10 Science class. During my research, I found it very hard to find any positive things on the topic. I quickly concluded that the shift in hog production was only causing damage. The real reason I am writing this letter is not to tell you my opinion on the issue. It is more or less a plea for the health and safety of the nine children in my surrounding area. At the last council meeting, an ILO application was accepted by the RM of Moosomin to have an earthen lagoon, with no cover, placed two miles from my house. Within a two-mile radius, eight other children—four under the age of three— will be exposed to the contaminates of this hog barn.  This new construction is supposed to be the site of 9,600 feeder hogs.

This large number of hogs will generate as much waste as a small Saskatchewan city. ILO manure has by-products of health concern. Since this manure is typically stored in lagoons and later spread on nearby cropland, it poses additional risks to our health. The American Public Health Moratorium states “children suffer disproportionately from asthma; while fetuses, infants and children are more vulnerable to adverse impacts from bacterial and antimicrobial-resistant infections, all health impacts to which existing science suggests that emissions from ILOs may contribute.”

This issue not only has created problems and put a huge gap in our community, but it is now posing a serious threat to children of my community. I don’t think that it is too much to ask for the people to stop and think about the consequences of their actions and think of how our lives can seriously be affected.

We all have a bright future ahead of us, but the contaminates from this hog barn may alter this course considerably. Is the extra dollar in a few men’s pockets really worth a child’s future?

Moosomin, Sask.

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Community Information Night
October 28, 2003
Moosomin Community Hall
7:00 pm

Experts will be on hand to present the facts and research behind the intensive hog operations making their way into our communities.  Municipal/provincial government representatives have also been invited.


  • Dr. W.J. Weida, Colorado College
  • Dr. Bill Paton, Brandon University
  • Lisa Bechthold, GRACE Consultant

Every citizen in Saskatchewan is invited and encouraged to attend.  If you care about the community in which you live, please take time to educate and participate, or you may find you've forfeited a say in your own future.

Free of charge -- donations to cover hall rental and expenses would be gratefully accepted.

From left to right:
Dr. Bill Paton (Biologist, University of Brandon, Manitoba), Lisa Bechtold (County of Forty Mile, Southern Alberta, on Steering Committee for Beyond Factory Farming Coalition, one of the founders and Vice-President of Alberta's Society for Environmentally Responsible Livestock Operations, SERLO) and Dr. Bill Weida (Director of GRACE Factory Farm Project, Professor Economics and Business at the Colorado College)

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Gateway REDA Livestock Operations
August 6, 2003
6 - 10 pm
SERM will be in attendance


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...using common sense towards healthy food from healthy animals

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