Decision Date: August 27, 1999

Panel: Toby Vigod

Keywords: Pesticide Control Act – s. 15(8); stay application; pesticide use permits; silvicultural herbicide; glyphosate; “Vision”; First Nations; treaty rights; balance of convenience.

This was an application by the Fort Nelson First Nation for a stay of a decision of a Deputy Administrator of the Pesticide Control Act. The First Nation was seeking a stay pending the Board’s decision on the merits of the Applicant’s appeal against the decision. The Deputy Administrator had issued three pesticide use permits to Slocan Forest Products Ltd. (“Slocan”) authorizing the use of herbicides for forest brushing and weeding at various sites located in northeastern British Columbia.

Slocan planned to use glyphosate (“Vision”) on cutblocks to clear away brush vegetation competing with planted and naturally regenerated young coniferous trees. The three permits authorized treatment on approximately 1,395 hectares of forest land within the area subject to Treaty No. 8.

The First Nation claimed that it has treaty rights under Treaty No. 8 and submitted that it had concerns over the potential harmful effects of Vision on wildlife habitat, food and water supplies, and the treaty rights of its members to hunt, fish and trap.

The Board set out the test for stay applications, 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 Board found that the first two of these tests were met in the cases of all three permits. With regard to the third test, the Board found that determining the balance of convenience required weighing the potential harm to the First Nation if spraying were to take place, against the potential harm to Slocan of damage to or loss of tree regeneration as a result of not spraying.

The Board found that the balance of convenience did not favour the granting of a stay in the case of one of the permits, due to the remoteness of the cutblocks authorized for spraying by that permit and the lower likelihood of those areas being used by members of the First Nation for activities protected as treaty rights. Accordingly, the Board refused to grant a stay of that permit. It did however grant stays of the other two permits pending a final decision from the Board on the merits of the appeal, as the First Nation had presented evidence to show that these permits included areas used for traditional activities protected under the treaty. The application for a stay was granted, in part.