Decision Date: August 20, 1999

Panel: Toby Vigod

Keywords: Stay application; pesticide use permits; silvicultural herbicide; glyphosate; “Vision”; First Nations; treaty rights; jurisdiction of the Board.

This was an application by the Fort Nelson First Nation (“the Applicant”) for a stay of the decision of the Deputy Administrator to issue three pesticide use permits to the Ministry of Forests (“the Ministry”), pending the Board’s decision on the merits of the Applicant’s appeal against the decision. The three permits authorized aerial (rotary) application of the silvicultural herbicide glyphosate (“Vision”) to 28 cutblocks distributed throughout the Fort Nelson Forest District in north-eastern British Columbia.

The Ministry planned to use Vision to clear away plants that were competing with conifer seedlings that had been planted in the blocks in question. The permits authorized treatment on approximately 1200 hectares of forest land within the area subject to Treaty No. 8. The Ministry had identified 12 of the cutblocks as priority cutblocks, as it believed that the conifer seedlings in those cutblocks would die if the areas were not treated in the 1999 window for spraying ending on August 31.

The ancestors of the Applicant signed an adhesion to Treaty No. 8. The Applicant submitted that it had concerns over the potential harmful effects of Vision on wildlife habitat, water, berries, and on the treaty rights of the Appellant’s members to hunt, fish and trap.

The Panel set out the test for stay applications before the Board, which requires that the applicant demonstrate (1) that there is a serious issue be tried, (2) that irreparable harm will result if the stay is not granted, and (3) that the balance of convenience favours granting the stay.

The Panel took the interim position that, for the purposes of the stay application, the Board had jurisdiction to hear and decide questions of aboriginal rights. The Panel found that the Applicant’s submissions met the requirements of the stay application test. The Panel granted a stay of the permits as they applied to treatment of the non-priority cutblocks and three of the priority cutblocks. The Board did not stay the permits as they applied to the remaining priority cutblocks.  The application for a stay was granted, in part.