The City of Victoria has been dealt a blow by the B.C. Court of Appeal in its efforts to save the lives of sea turtles and other marine creatures.
But Mayor Lisa Helps refuses to give up after three judges unanimously agreed that a city bylaw banning single-use plastic bags was offside with the Community Charter.
That's because Victoria's council failed to obtain the consent of the provincial minister of the environment before it adopted the "Checkout Bag Regulation Bylaw" last year.
The bylaw only permitted businesses to provide a paper bag or reusable bag—for which they could charge a maximum fee.
There were also exemptions for loose bulk items, frozen foods, meat, poultry, fish, and to protect clothes after professional laundering or dry-cleaning.
“We will review the decision and will consider all our options," Helps said in a statement on her website. "We believe it is fundamentally within the jurisdiction of cities to regulate unsustainable business practices. The court decision doesn’t undermine the soundness of the bylaw itself, it only deals with the process required for its adoption.”
Coun. Ben Isitt has suggested over Twitter that the city might appeal the ruling to the Supreme Court of Canada. It can be difficult obtaining leave to appeal, however, when a court of appeal issues a unanimous ruling.
Today's decision was written by Justice Mary Newbury following an appeal by the Canadian Plastic Bag Association.
"The Association’s central argument was that the City lacked the jurisdiction to prohibit businesses from providing plastic bags to their customers," Newbury wrote, "because the purpose for which the City was purporting to legislate was to regulate 'in relation to the natural environment. It is also regulating/prohibiting in relation to municipal solid waste.' "
But the appellant argued that to do so required the minister's approval under section 9 (3) of the Community Charter.
In B.C. Supreme Court, a chambers judge rejected that claim, ruling instead that the bylaw was properly characterized by the City of Victoria as a "business regulation".
This conclusion was overturned by Newbury, Justice Nicole Garson, and Justice Barbara Fisher.
"In the result, I conclude that we must allow the appeal and quash the Bylaw," Newbury wrote.
The bylaw came into effect on July 1, 2018. According to the city, it has resulted in 17 million plastic bags being eliminated from the community, village centres, parks, and beaches.
"Victorians care deeply about this issue and they told us that single-use plastic bags do not align with their values," Helps said. "Businesses and residents have embraced the transition to reusable bags. It’s been a tremendous success. We will continue our efforts to phase out single-use items."
Plastics accumulate in the seas, killing marine animals
The Florida-based Sea Turtle Conservancy estimates there are about 100 million tons of plastic in the oceans.
"It is expected that another 60 billion pounds will be produced this year alone," it states on its website. "In some areas, the buildup of plastics is estimated to span 5 million square miles. To put it into perspective, that is the equivalent of the area of the U.S. plus India."
All species of sea turtles suffer as a result of the buildup of plastic in oceans.
The journal Nature published a paper last year indicating that the Great Pacific Garbage Patch between California and Hawaii has at least 79,000 tonnes of ocean plastic within an area of 1.6 million square kilometres. That was four to 16 times higher than previously reported, according to the researchers.
One of the most vocal critics of plastics in the oceans has been Gord Johns, the NDP MP for Courtenay-Alberni.
In December 2018, he obtained unanimous support in Parliament for a motion to reduce and hopefully eliminate plastic pollution in marine environments.
Johns learned about this issue, in part, from a report prepared by a UVic law student, Meaghan Partridge, who was supervised by Calvin Sandborn of the university's Environmental Law Centre.
"Every year plastic litter kills one million seabirds and 100,000 turtles and marine mammals such as dolphins, whales, and seals," Partridge wrote, citing a document from the government of Western Australia.