An under-reported change to New Brunswick’s cannabis regulations from May 2019 that disallows indoor cannabis production on agricultural land is putting a damper on the plans of cannabis growers and prospective cannabis growers in the province.
A directive issued by Jeff Carr, the Minister of Department of Environment and Local Government in New Brunswick on May 17, 2019, limits indoor cannabis production to industrial zones. Any new applicants seeking to grow cannabis indoors who are already located on agricultural land will have to apply to have their land rezoned to industrial.
Although the stated purpose of the directive is to address what it says are concerns with cannabis being grown on agricultural lands that are often near residential areas, daycares, and public spaces, the change only applies to the highly regulated indoor cannabis production facilities, and does not impact outdoor cannabis cultivation.
The change is already impacting both licence holders and applicants, many of whom had been previously told by the province that they were authorized to grow cannabis on their existing agricultural land, including zoning letters specifically authorizing the practice.
Rod Wilson, of Hidden Harvest, a cannabis nursery on five acres of agricultural land outside Moncton, received his license from Health Canada in March of this year, says he has now been issued a stop order from the province because of the directive.
If they don’t allow me to do this, I can still fill my field with cannabis, but I can’t have some non flowering plants indoors? It’s crazy. I can get a tractor trailer of bull manure and put it on my land, but they think that cannabis is an odour issue. It’s just nonsensical.Rod Wilson, Hidden Harvest
Wilson received a zoning license from the Southeast Regional Planning Commission in April 2019 saying his land was zoned for uses such as cannabis cultivation, and with that confirmation, moved forward retrofitting an existing building on his land to house a small indoor cannabis nursery. He says it wasn’t until very recently that he was informed by the local government that his zoning license was considered null and void by the May 2019 directive.
Although he’s been told he can seek to ask his local planning commission to rezone his land to industrial, he says he’s holding off on that option at the moment because he feels the directive is not legally binding. For him, it’s business as usual and he is waiting for the province to try and prevent him from doing business under his current federal licence.
“It’s business as usual,” he says, “because I have the land confirmation, the zoning confirmation prior to Minister Carr’s directive.
“That wasn’t a free service I was provided, I had to pay $100 for that confirmation letter. And in it they specify that my property, at that time, was adequately zoned for cannabis cultivation and they even mentioned that it would be a good use of land for a plant nursery. So based on that letter, I moved forward, invested in getting my (Federal) licence, invested in altering my infrastructure so I could be applicable to the licence, I got the licence, and now I’m ready to grow cannabis and start filling orders.”
Wilson’s biggest frustration, he says, is the lack of communication from the province on these changes, as well as what he says he thinks are contradictory rules around the safety and public concerns.
“I’m not saying you should allow cannabis cultivation on everything that is zoned agricultural, because there could be other infrastructure around that could be sensitive to a cannabis establishment, like a daycare, for example. I’m fine with that. But my land was already approved for this. I’m not even growing cannabis for flower, just plants to sell to other growers. What’s the concern?
“Then, if they don’t allow me to do this, I can still fill my field with cannabis, but I can’t have some non flowering plants indoors? It’s crazy. I can get a tractor trailer of bull manure and put it on my land, but they think that cannabis is an odour issue. It’s just nonsensical.”
For their part, the Southeast Regional Service Commission says Wilson does not have a permit for a building containing a cannabis nursery on his property, and have issued a stop order and that his nursery should not be operating without a building and development permit.
Anne Mooers, an Administrative Officer with Corporate Communications and Public Relations with the New Brunswick government says these changes to the province’s policy are due to community concern.
“The legalization of cannabis by the federal government has led the (New Brunswick) government to respond to new land uses and public concern around cannabis production facilities,” Mooers told StratCann via email. “We responded to differing interpretations of how such facilities should be treated.”
“We continue to hear feedback to the directive and we certainly hear feedback during the rezoning processes when such a facility is proposed.”
Although StratCann reached out to Minister Jeff Carr’s office for comment, a reply was not provided by press time.
Glen Herrington, who lives in New Maryland, New Brunswick, near Fredericton, says he had been looking to apply for an indoor cultivation licence on his land for several years, primarily to grow cannabis to produce CBD oil. Like Wilson, he paid for a zoning license from his local planning commission, which said his 10 acre property was approved for cannabis production.
Now I feel, personally, that I am being bullied by the system.Glen Herrington
He was getting ready to begin the federal application process when he learned of the May 2019 directive signed by Minister Carr. Rather than moving forward with the application, Herrington says he then went through the process of applying to change his land to industrial use, paying a $1,500 rezoning fee, plus another $400 for a land survey, only to have it recently denied.
Unable to continue to move forward with his hopes for a legal, regulated, commercial indoor production licence, he says his plan now is to perhaps shift to growing micro greens, as well as applying for a personal medical production licence to supply his wife with CBD oil which she has used for several years now. Like commercial outdoor cultivation, such a personal or designated medical production licence would not be subject to these provincial zoning rules.
Herrington says he thinks the issue has been pushed by many in the community who have very unfounded fears about cannabis production, as well as Health Canada’s strict rules around mitigation of things like odour, light pollution, public safety, etc.
At a local planning commission meeting last December, he says the community brought up concerns not only with the potential for odour, but also THC leaching into the local water supply and the indoor facility negatively impacting a local HAM radio operator’s radio frequencies.
I bought this farm 42 years ago. My wife and I have lived here, we’ve raised chickens and pigs and cows. But now I’m older and I don’t want to look after animals any more. But I can grow plants, I can grow marijuana, and I can see the use and the value of the marijuana plant, so why wouldn’t I grow?Glen Herrington
The CBC covered the issue last December, quoting a neighbour of Herrington as saying he had concerns about the smell of the cannabis facility.
“I don’t think it’ll be a lot of fun sitting out on the deck in the summertime having a barbecue and smelling marijuana,” Corey Allen told the CBC at the time.
Federal cannabis regulations do not allow any smell of cannabis to leave a production facility, requiring extensive air filtration systems and hermetically sealed buildings to prevent such odours. However, these rules do not apply to outdoor facilities, where there would be no way to mitigate odours.
“Now I feel, personally, that I am being bullied by the system,” says the 72 year old Herrington.
“I bought this farm 42 years ago. My wife and I have lived here, we’ve raised chickens and pigs and cows. But now I’m older and I don’t want to look after animals any more. But I can grow plants, I can grow marijuana, and I can see the use and the value of the marijuana plant, so why wouldn’t I grow? It’s the best medicine in the world!”
Gina Brown, along with her husband Jared, originally applied for an indoor micro cannabis cultivation licence in April of 2019 for their property in Upper Coverdale, NB, just outside of Moncton. They received the same zoning confirmation that Wilson had, which they provided to Health Canada when they submitted their application.
Gina Brown, who did the company’s SOPs and filed their application, says she wasn’t even informed of the directive until September of 2019 from a prospective investor. She says she contacted several people with the province to learn more and many of them weren’t familiar with it either.
“Health Canada’s rules address all of this. Odour concerns are addressed by the federal regulations. You’re not supposed to have any smell, that’s part of the regulations. And if you’re violating that, it can be addressed.”Gina Brown
Because Brown had applied prior to Health Canada’s own rule change in May 2019 that required a facility prior to application, their own facility was not yet under construction while they waited for conditional approval and talked to outside investors. Once they learned about the directive, they stopped their plans to build a small 4,000ft2 indoor facility and began working on amending their licence and changing their approach to a micro outdoor cultivation licence. Originally, they had planned on pouring concrete for their indoor facility in October.
Originally, Brown says she didn’t even think she needed the zoning amendment, but went ahead and got one based on advice from local government. Then later, she says the same department told her that if she had instead sought a building permit, that the directive wouldn’t have applied to her. But because she instead only had a zoning licence, it was rendered null and void by Minister Carr’s directive.
“My theory is that the federal government has made these rules, and the provincial government is purposefully mismanaging them to make it look like a failure. To make the federal government look bad. They’re doing it on purpose. There’s no other justification. No one will give me any justification at all.”Gina Brown
She says she has reached out to numerous government agencies in the province, but gets little clarity. Her attempts to reach Minister Carr not been responded to.
“I’ve asked them ‘tell me why this directive exists?’ They can’t give a legitimate answer for anything, it is so ridiculous.”
“Health Canada’s rules address all of this. Odour concerns are addressed by the federal regulations. You’re not supposed to have any smell, that’s part of the regulations. And if you’re violating that, it can be addressed.”
The Brown’s application to the Southeast Regional Service Commission for an amendment to allow them to change to industrial was recommended by the Commission, which they expect a ruling on later this month.
Although they have applied to get their zoning changed to industrial, she says her preference is to keep it as agricultural, especially because industrially zoned land would mean considerably higher taxes.
“I have no desire to rezone my property. None. Why would I want an agricultural farm zoned as industrial? The tax implications alone, it’s about eight times more to have it zoned industrial instead of agriculture. And that’s kind of what I think this is about, is to tax us higher.”
She also says she thinks there could be some party politics at play.
“If it made sense, if there was a legitimate concern about smell, or safety, I would want it addressed. But this just doesn’t make sense. Who does this benefit? People can still grow outdoors in these areas, so why do they want to essentially ban indoor facilities?
“My theory is that the federal government has made these rules, and the provincial government is purposefully mismanaging them to make it look like a failure. To make the federal government look bad. They’re doing it on purpose. There’s no other justification. No one will give me any justification at all.”
“People blame Health Canada all the time. I don’t think they did anything wrong. They came out with really hard, stringent rules. Is that a bad thing to come out of the gate with really strict rules, and then lessen them? To me that doesn’t seem crazy. Things like vaults were overboard, and now they dont require them any more. They are listening and making changes. Whats happening anywhere else? “My biggest issue before this was banking, not the federal regulations, and now it’s this zoning stuff, I just don’t think they want it to happen here in New Brunswick.”
For his part, Herrington says he thinks it all comes down to re-election concerns for local politicians. Minister Carr, who signed the declaration, is also his local MLA and Herrington says Carr told him that he had heard concerns about his proposed facility from over 200 local residents. In a riding with only about 7,000 voters, he thinks Carr was more concerned with upsetting several hundred potential voters rather than working with the handful of legal cannabis growers looking to operate in a regulated environment.
“He told me there were over 200 people who wrote concerned letters,” says Herrington. “If that was the case, if he was worried that those 200 people might not vote for him in the next election, then it’s easier for him to say no to me, than to say no to 200 people.
“It’s very simple. He had to either say yes to me, or to someone like Gina (Brown), but if he does, he might lose a lot of votes, so he’ll just say no to me.”