Rossland's plastic bag bylaw still on table, despite recent quashing of similar ban

Victoria's bylaw banning single-use plastic bags was quashed Thursday in B.C.'s Court of Appeal, but Rossland will still look at adopting its own bylaw banning plastic checkout bags at a council meeting Monday. 

The recent decision on Victoria's bylaw could be a curve ball for the West Kootenay city, but so far they are charging ahead.

"This is quite an interesting development for Rossland, but I actually believe the important thing is that the writing's on the wall for single-use plastics," said Mayor Kathy Moore. 

As of Friday morning, Moore hadn't yet consulted with staff or legal counsel about what the decision in Victoria could mean for them, but the bylaw remains on the agenda.

Not just environmental, says mayor

Victoria lost its case against the Canadian Plastic Bag Association when the court ruled that the city's primary motivation was the environment, rather than business. In order to keep its ban, Victoria needs the approval of the Minister of Environment.

Rossland's proposed bylaw has already passed three readings, but council hadn't planned on consulting the province.

"We weren't seeing it is as environmental," Moore told Daybreak South host Chris Walker. 

"In our area waste management is handled by municipalities and electoral areas, and waste management is a huge issue and we pay for it. We have a landfill that we're responsible for into the distant future at huge cost."

Moore believes Rossland's proposed bylaw is a "bit different" than Victoria's because the city isn't mandating that retailers charge people for bags. It wouldn't be put in place until January 1, giving the city time to educate residents.

The proposed bylaw, however, would ban stores from providing single-use plastic bags at the checkout. Instead, a paper checkout bag or reusable bag can be provided if the customer is asked first if they need one. Businesses could be violated $100 per offence, and up to $10,000 for repeated offences.

"This is a complex issue," said Moore. "The fact that it has an environmental component doesn't mean it doesn't have a municipal authority component."

Potential to succeed 

Ryan Parsons, a lawyer who represented the Canadian Plastic Bag Association, said in an email that the Court of Appeal's decision was specific to Victoria's bylaw, but the court's reasons can provide guidance to other municipalities that have adopted similar bylaws or are considering it.

"If other municipal bylaws have a dominant or main purpose similar to Victoria's bylaw, that is, to protect the natural environment, and were adopted without approval from the environment minister, they may be vulnerable to a similar court challenge based on invalidity and could also be quashed," said Parsons.

However, there are several ways that single-use plastics bans can still be implemented by municipalities, including getting approval from the Ministry of Environment, or by citing a business regulation, explained Deborah Curran, an associate professor in the Faculty of Law and School of Environmental Studies at the University of Victoria.

"The municipality has to be very careful that the purpose for which they are enacting the bylaw is actually regulation of business," said Curran.

"Regulation of business is to make sure that the way in which businesses are conducted do not have adverse public consequences. So it's really public interest reasons. You could cite the kind of evidence like, plastic bags are littered all the time, they create a huge load on the recycling system or in the municipal dump."