B.C.'s top court throws out Victoria's plastic bag ban, says city needs provincial green light

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B.C.’s top court has thrown out a Victoria bylaw banning single-use plastic bags at shops.

In reasons for judgment released on Thursday, the B.C. Court of Appeal found that the city bylaw’s main purpose was to protect the environment, rather than regulate businesses.

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As such, the court found that the bylaw requires approval from the Ministry of Environment and Climate Change Strategy under the Community Charter — the provincial law that functions as a constitution for municipalities.

The three-judge panel unanimously ruled that without that approval, the bylaw is not valid.

“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) requiring the Minister’s approval,” wrote Justice Mary Newbury.

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In the wake of the ruling, the City of Victoria is vowing to “find another way” to eliminate plastic bags.

“We will review the decision and will consider all our options. We believe it is fundamentally within the jurisdiction of cities to regulate unsustainable business practices,” said Mayor Lisa Helps in a media release.

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“The court decision doesn’t undermine the soundness of the bylaw itself, it only deals with the process required for its adoption.”

In a statement, the ministry said it is reviewing the decision and the bylaw itself, which it says was passed under Victoria’s authority under the Community Charter under the housing ministry.

“There are authorities under the Community Charter which allow the Minister of Environment and Climate Change Strategy to consider such a bylaw,” the statement said, adding no municipalities have made a request for that consideration.

Victoria voted to implement the ban in January 2018, with the law taking effect last July.

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Under the bylaw, stores were required to shift to paper or reusable cloth bags.

Retailers were initially required to charge a 15-cent fee for paper bags and $1 for reusable bags — which climbed to 25 cents and $2, respectively, on Jan. 1 of this year.

In June, 2018, the B.C. Supreme Court upheld Victoria’s bylaw in the face of a challenge by the Canadian Plastic Bag Association.

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The B.C. Court of Appeal ruling comes just as the City of Vancouver begins surveying the public on whether it should implement its own single-use bag ban.

The city said it would model such a ban on Victoria’s bylaw.

City staff are now reviewing the decision to see how it may affect Vancouver, but the city noted it’s not governed by the Community Charter.

Vancouver has its own charter with the province that allows the city to create its own bylaws and impose taxes without provincial approval.

The Ministry of Environment said in its statement the province is “looking at ways to prevent plastic waste in our environment at a province-wide level,” but wouldn’t say whether a specific plastic bag ban for B.C. is in the works.

—With files from Sean Boynton

© 2019 Global News, a division of Corus Entertainment Inc.

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