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HomeMy WebLinkAboutCAO 19-11 Cis Report To Executive Council PICKERING Report Number: CAO 19-11 Date: November 14, 2011 g 4 From: Paul Bigioni City Solicitor Subject: By-law Banning Sale of Shark Fins in City of Pickering - File: L-1300-001-11 09 Recommendation: That Report CAO 19-11 respecting a ban on the possession, sale, trade or distribution of shark fins within the City of Pickering be received for information. Executive Summary: 1. A ban on the possession, sale, trade or distribution of shark fins within the City (referred to herein as the "shark fin ban") can be justified under section 11(2)6. of the Municipal Act, 2001 (the "Act"). Section 11(2)6. of the Act gives the City the specific power to pass by-laws regarding the "health, safety and well-being of persons". 2. A shark fin ban can also be justified under section 11(2)5. of the Act. Section 11(2)5. of the Act gives the City the specific power to pass by-laws regarding the "economic, social and environmental well-being of the municipality". 3. A shark fin ban maybe subject to legal challenge because it would not be a typical or traditional exercise of municipal power. That being said, it is legally arguable that such a ban is within the expanded powers conferred upon municipalities by the Act. Financial Implications: A shark fin ban would result in minimal additional demands on by-law enforcement resources. The ban could also generate income from fines. Sustainability Implications: Not applicable. Report CAO 19-11 November 14, 2011 Subject: Banning of Shark Fins in the City of Pickering Page 2 Q~ Background: Shark finning involves catching sharks, cutting off their fins and then throwing their carcasses back into the sea. Shark finning is wasteful, to the extent that it makes use of only 2 to 5% of the entire animal. Shark finning feeds the human demand for shark fin soup, a traditional Asian delicacy. Eating shark fins gives no nutritional or medicinal benefit. To the contrary, shark fin has been found to contain significant levels of toxins.. In spite of this, the demand for shark fin soup is growing. Shark fin soup was once a rarity, available only to upper classes, but demand for it from a larger and wealthier middle class has skyrocketed. In 2008 alone, nearly 10,000,000 kg of shark fins were imported into Hong Kong, the world's largest single market for this product. As a result, shark finning now contributes significantly to the worldwide collapse of shark populations. Each year, over 70 million sharks are caught and killed. At this rate, it has been estimated that sharks could become extinct within 10 to 20 years. Sharks now represent the largest group of threatened marine species on the World Conservation Union's Red List of threatened species. While the extinction of any species is a matter of environmental concern, the extinction of sharks is particularly troubling. This is because sharks are apex predators. They are at the top of the food chain. Marine science recognizes that sharks, as apex predators, are critically important to maintaining balance in their ecosystems. When an apex predator is removed from an ecosystem, a "cascade" effect results. Apex predators directly limit the populations of their prey, which in turn affects the prey species of those animals, and so on. This cascade effect drastically alters the populations of many other species in the ecosystem. There is a growing awareness in the Greater Toronto Area and elsewhere that the consumption and sale.of shark fin is an environmentally and socially undesirable practice. As a result, a patchwork of municipal shark fin bans presently exists. Mississauga, Brantford and Toronto have enacted shark fin bans while other GTA municipalities have not. 1. A Shark Fin Ban Can Be Justified Under Section 11(2)6. of the Act Section 11(2)6. of the Act confers upon the City the power to pass by-laws respecting the "health, safety and well-being of persons". Studies indicate that shark contains some of the highest levels of toxic mercury found in any fish. Mercury is a dangerous neurotoxin. The World Health Organization and the UN Food and Agriculture Organization both warn against eating shark for this reason. A study conducted by Hong Kong Baptist University has concluded that approximately 1/4 of shark fins analyzed had mercury levels higher than the highest allowable standard set by the World Health Organization for fishery products. Shark fins have also been found to be contaminated with arsenic. The way shark fins and shark fin soup are CORP0227-07/01 revised Report CAO 19-11 November 14, 2011 Subject: Banning of Shark Fins in the City of Pickering Page 3 86 prepared can result in each guest at a banquet ingesting over 100 times the daily recommended intake of these poisons. A shark fin ban enforced within the territory of the City would protect residents from the serious health risks associated with the consumption of shark fin. Given that there is no Provincial or Federal ban, implementing a shark fin ban at the municipal level is the only means by which City residents can be afforded this protection. 2. A Shark Fin Ban Can Be Justified Under Section 11(2)5. of the Act Section 11(2)5. of the Act confers upon the City the power to pass by-laws respecting the "economic, social and environmental well-being of the municipality". As noted above, shark finning contributes to the rapid decline in shark populations, which in turn impacts other marine species. The cascading effect caused by the depletion of shark populations has already resulted in the closure of the Bay Scallop fishery in North Carolina and has reduced clam populations to the point where clam chowder is becoming more difficult to find in U.S. restaurants. These examples are relevant to the City because they demonstrate that there is an indirect though very real link between declining shark populations in far-off oceans and the availability of other fish products at the local level. Given the impact of declining shark populations on the availability of scallops and clams in the Atlantic, it is reasonable to worry that declining shark populations could impact the availability and cost of other seafood products to residents of the City. A shark fin ban within the City could combat this trend and thereby enhance the economic, social and environmental well-being of residents. A ban would also enhance the social and environmental well-being of City residents by making them more aware of the broader environmental impacts of local activities. 3. The Legality of a Shark Fin Ban Sections 8 and 11 of the Municipal Act, 2001 provide expanded municipal powers as compared to previous versions of the Act. In particular, section 8(2) of the Act states that "in the event of ambiguity in whether or not a municipality has the authority under this or any other Act to pass a by-law or to take any other action, the ambiguity shall be resolved so as to include, rather than excluded, powers the municipality had on the day before this Act came into force." The enactment of a shark fin ban would not be a traditional exercise of municipal power. While a ban seems justifiable on a plain reading of the Act, certain judicial decisions which interpret the Act make the legal analysis more complex. Both the Ontario Court of Appeal (in Croplife Canada v. City of Toronto) and the Supreme Court of Canada (in 114957 Canada Ltee (Spraytech, Societe d'arrosage, et al.) v. Hudson (Town)) recognize the broadened powers of Canadian municipalities. Furthermore, these court decisions also establish that municipal by-laws are not invalid CORP0227-07/01 revised Report CAO 19-11 November 14, 2011 Subject: Banning of Shark Fins in the City of Pickering Page 4 87 simply because the Province or the Federal Government has or could legislate with respect to the same subject matter. A municipal by-law can only be invalidated on this basis if it frustrates the purpose of a Federal or Provincial law and if it is impossible to simultaneously comply with the municipal by-law and the Federal/Provincial law. In the case of a shark fin ban there is no comparable Provincial or Federal law, so the ban cannot be invalidated on this basis. On the other hand, the Supreme Court of Canada has ruled that the broader powers conferred upon municipalities cannot be interpreted as an open and unlimited grant of power. The court has held that a proper exercise of municipal power must relate to problems that closely relate to the immediate interests of the community within its boundaries. For this reason, a ban on fishing practices elsewhere in the world, or a ban motivated solely by concern about cruelty to animals elsewhere in the world would not survive judicial challenge. Accordingly, City staff have prepared a draft by-law (Attachment 1) that would implement a ban only on activities (consumption, sale, trade or distribution of shark fins) within the territorial limits of the City. There are legal arguments both for and against the validity of a municipal shark fin ban. It is therefore impossible to predict with certainty whether or not such a ban would survive a legal challenge. That being said, there are valid legal arguments, as detailed above, which would support a shark fin ban as a legitimate exercise of municipal power under the Act. Attachments: 1. Draft By-law Prepared y: Approved/En sed By: Paul Bigioni Tony Prevedel City Solicitor Chief Administrative Officer PB:ks Copy: Chief Administrative Officer Recommended for the consideration of Pickering Ci ouncil Tony Prevede , P'. ng. Chief Administrative Officer CORP0227-07/01 revised ATTACHVsENI'V T O REPORT# C ~ (Gt ®of, L~ $ The Corporation of the City of Pickering By-law No. XX/11 Being a by-law to prohibit the possession, sale, trade and distribution of shark fins or derivative products Whereas section 8(1) of the Municipal Act, 2001, S.O. 2001, c. 25 (hereinafter the "Municipal Act 2001") states that the powers of a municipality shall be interpreted broadly so as to confer broad authority on the municipality to enable the municipality to govern its affairs as it considers appropriate and to enhance the municipality's ability to respond to municipal issues; And whereas section 8(3) of the Municipal Act 2001, authorizes a municipality to regulate or prohibit a matter for which it may pass a by-law under section 11 of the Municipal Act 2001; And whereas section 11(2) 5. of the Municipal Act 2001, authorizes a municipality to regulate matters related to the economic, social and environmental well-being of the municipality; And whereas section 11(2) 6. of the Municipal Act 2001, authorizes a municipality to regulate matters related to the health, safety and well-being of the inhabitants of the municipality; And whereas section 11(2) 8. of the Municipal Act 2001, authorizes a municipality to regulate matters for the protection of persons within the municipality; And whereas the consumption of shark fins and shark fin derivative products by humans may cause serious health risks, including risks from mercury; And whereas the practice of shark finning, where a shark is caught, its fins are sliced off while many are still alive, and the live animals returned to the sea severely and almost always fatally wounded, constitutes a serious threat to the oceans' ecosystems and biodiversity; And whereas over 70 million sharks are being slaughtered every year for their fins, a rate at which experts predict could result in the loss of many shark species within a decade; And whereas the risk to the health of the City's inhabitants and the negative impact to the oceans' ecosystems, posed by the consumption and trade in shark fins, are both municipal issues that affect the citizens of Pickering; I BY-LAW NO XX ATrACHMEWTV.m. V0 REPORT* 01ACO Cl Page 2 89 02 of. q- Now therefore the Council of The Corporation of the City of Pickering hereby enacts as follows: Part I - Definitions 1. For the purpose of this By-law: "City" means the geographical area of the City of Pickering or The Corporation of the City of Pickering, as the context requires; "Council" means the elected council for the City; "Officer" means a municipal by-law enforcement officer appointed by the City; "Person" includes a corporation and the heirs, executors, administrators or other legal representatives of a person to whom the context can apply according to law; "Shark" means a fish that is commonly referred to as a shark and includes any fish that belongs to a species under the common name of shark; "Shark Fin" means the raw, dried, or otherwise processed detached fin, or the raw, dried, or otherwise processed detached tail, of a Shark or any derivative product of a Shark Fin. Part II - General Prohibitions 2. No Person shall possess, sell, offer for sale, cause or permit to be offered for sale, trade, or distribute shark fins within the City. 3. No Person shall prepare for consumption or process shark fins within the City. 4. No Person shall cause or permit shark fins to be prepared for consumption or processed in the City. Part I I I - Enforcement 5. This By-law may be enforced by any Officer. 6. An Officer acting under this By-law may, at any reasonable time, enter and inspect any property, including all buildings and structures thereon, to determine whether there is compliance with this By-law. 7. No Person shall obstruct the Officer inspecting or withhold, destroy, conceal, or refuse to furnish any information or thing required by the Officer. BY-LAW NO XX ATT CHVIENI'v_„ J _ T'Q REI0RT*C,4VV t9- t j Page 3 d. L- 90 Part IV - Penalty 8. (1) Every Person who contravenes any provision of this By-law, is guilty of an offence and is liable to a fine, and such other penalties, as provided for in the Provincial Offences Act, R.S.O. 1990, c. P.33 and the Municipal Act 2001, as each may be amended from time to time. (2) In addition to Subsection 8(1) of this By-law, any Person who is charged with an offence under this By-law by the laying of an information, under Part III of the Provincial Offences Act and is found guilty of the offence is liable: (i) On a first conviction to a fine of not more than $15,000.00, and (ii) On any subsequent conviction to a fine of not more than $30,000.00. Part V - Validity & Interpretation 9. In this By-law, references to any Act, regulation or by-law is a reference to that Act, regulation or by-law as it is amended or re-enacted from time to time. 10. This By-law shall be read with all changes in gender or number as the context may require. 11. If a provision of this By-law conflicts with a provision of any applicable Act, regulation or by-law, the provision that establishes the higher or more restrictive standard to protect the health, safety and welfare of the general public shall prevail. 12. Each section of this By-law is an independent section, and the holding of any section or part of any section of this By-law to be void or ineffective for any reason shall not be deemed to affect the validity of any other section or parts of sections of this By-law. 13. All words importing the singular shall include the plural and the converse of this also applies. 14. This By-law comes into force and effect when it is enacted and passed by Council. BY-LAW NO XX - Page 4 AUACH~ENI Part VII - Short Title I 15. This By-law shall be known and may be cited as the "Shark Fin By-law". By-law read a first, second and third time and finally passed this day of , 2011. David Ryan, Mayor Debbie Shields, City Clerk I