Decision Date: July 7, 2005

Court: B.C.S.C., Slade, H.A.

Cite: 2005 BCSC 1031

Granby Wilderness Society (“Granby”) filed a petition to have a decision of the Environmental Appeal Board (the “Board”) judicially reviewed in the Supreme Court of British Columbia (the “Court”).  The Board held that on an appeal under the Pesticide Control Act (the “Act”) of a pest management plan, consideration should be given to whether the pesticide application authorized by the plan, not the decision making process set out in the plan, will cause an unreasonable adverse effect.  The Board also made findings about the mandatory content of pest management plans, and whether the particular plan in this case met all statutory requirements.  The Board found that the plan under appeal should be varied to include conditions limiting the application of pesticides in areas containing important forage for grizzly bears.

Granby submitted that the Board erred in law in its interpretation of the statutory requirements guiding the administrator’s determination that the pesticide application authorized by the plan will not cause an unreasonable adverse effect.  Granby argued that the primary matter to be considered by the administrator is whether the decision-making process set out in a plan establishes a basis for concluding that the application of pesticide will not cause an unreasonable adverse effect.  The Board submitted that, because section 6(3)(a)(ii) of the Act makes no distinction between a permit and a plan, the administrator may approve a plan if satisfied that the pesticide application authorized by the plan will not cause an unreasonable adverse effect.

The Court held that pest management plans set out a decision-making process by which the plan holder may decide to apply a pesticide to a particular area within the plan area.  In addition, the Act requires that the administrator must be satisfied that all considerations relevant to a determination that the application of pesticides will not cause an unreasonable adverse effect are considered within the process set out in the plan.  Therefore, in deciding whether to approve a plan, the administrator must consider whether the plan: (1) sets out all matters to be considered by the plan holder when deciding whether to use a pesticide, such that the administrator can be reasonably assured that the pesticide use will not cause an unreasonable adverse effect; (2) limits the plan holder’s discretion to an extent, such that the administrator may reasonably be satisfied that a pesticide use under the plan will not cause an unreasonable adverse effect; and (3) includes a mechanism for notifying the administrator in advance of an intended pesticide use, so that the administrator’s power under the Act to determine whether a particular pesticide use will cause an unreasonable adverse effect is not delegated to the plan holder.

Accordingly, the Court set aside the decision of the Board, and directed the Board to reconsider its decision in this matter.