Nisga a Tribal Council v. Environmental Appeal Board et al

File Number:
BCJ 3110

Decision Date: August 5, 1988

Court: S.C.B.C., Davies, J.

Cite: Registry No. A882021

The Nisga’a Tribal Council (the “petitioner”) applied for judicial review to quash a decision of the Board upholding a pesticide use permit issued to Westar Timber Ltd.

The petitioner raised a number of grounds for appeal, but the Court confined its decision to the single issue as to whether the petitioner had received adequate notice of the pesticide use permit in question as required under the Pesticide Control Act. Under the public notification provisions of the Act, the administrator was accorded discretion as to how notice was to be given with respect to a permit. The Board was charged with the duty of satisfying itself that the administrator had exercised this discretion properly and given effective notice of the permit to the petitioner.

The Court found that the administrator failed to fulfill the statutory notice requirement. The Ministry of Environment, Lands and Parks had made it a permit condition that any future permits issued for pesticide use in the Nass River Watershed would require notification of local communities, including the petitioner. However, in this instance, no effective notice was given. The administrator left the selection of the newspaper in which the notice was to be published to the discretion of Westar. Moreover, the administrator did not know nor did not inquire to make himself aware that there were no newspapers distributed within the Nass Valley. The Court found that this indifference on the part of the administrator prevented effective notice from being given to the petitioner and constituted a breach of natural justice. The Court found it to be irrelevant whether the Nisga’a were prejudiced by the absence of notice. In upholding the decision of the administrator, the Board allowed for a violation of the principles of natural justice. The decision of the Board was quashed.