Decision Date: December 4, 2001
Panel: Cindy Derkaz
Keywords: Pesticide Control Act – ss.1 definitions of “adverse effect,” “integrated pest management,” “pest,” “pest management plan,” ss.6, 6.1, 12, 17, 24; Interpretation Act – s. 27(2); glyphosate; triclopyr
The Appellants appealed the decision of the Deputy Administrator to approve a Pest Management Plan (“PMP”) submitted by Canadian Forest Products Ltd. (“Canfor”) authorizing the use of Vision and Release to manage vegetation competing with crop trees.
The Board considered several issues. The first issue was whether the Deputy Administrator exceeded her jurisdiction when she approved the PMP in the absence of regulations enacted under the Pesticide Control Act (the “Act“) relating to PMPs. Based on its interpretation of section 6(3) of the Act, the Board held that a Deputy Administrator has jurisdiction to approve a PMP under this section even if no regulations have been made in respect of PMPs. The language in the Act is sufficiently clear to stand on its own.
The second issue was whether there was adequate consultation during the development of the PMP with the Regional Pesticide Review Committee (RPRC), First Nations, stakeholders and the public. The Board found that there had not been adequate consultation with either the RPRC or the stakeholders and public. The Board found that the PMP should be referred back to the Deputy Administrator so that the RPRC review could be completed in accordance with the PMP Guide, and so that the Deputy Administrator could send written notice to those stakeholders identified on the Canfor Referral List, who did not receive either written notice or a copy of the draft PMP during its development.
The third issue was whether the PMP, as approved by the Deputy Administrator, was flawed. The Board found that the PMP was based on integrated pest management, but did not contain clear objectives and strategies for non-timber resources. The Board held that the Deputy Administrator should require, as a condition of the PMP, that Canfor provide particulars of all annual brushing activities (chemical and non-chemical) in its yearly follow-up reports to the Deputy Administrator, so she could monitor whether pesticide use is being reduced. The Board also referred the PMP back to the Deputy Administrator so that she could add into the PMP document all the elements of her approval decision and a relevant technical report which are required to ensure that there will not be an unreasonable adverse effect on the environment as a result of pesticide applications under the PMP.
The fourth issue was whether the application of pesticides authorized by the PMP would have an adverse effect on human health or the environment and, if so, whether that adverse effect was unreasonable in the circumstances. The Board found that, on a balance of probabilities, there would not be an adverse effect on human health if the pesticides were applied as authorized by the PMP and the Deputy Administrator’s approval. However, the Board held that the PMP should be sent back to the Deputy Administrator so that she could refer it to the Habitat Protection Section of the Ministry’s Skeena Region, and ensure that the PMP adequately addresses any recommendations that the Habitat Protection Section may have in respect to habitat zonation, biodiversity, monitoring and other measures for the protection of the environment.
The Board also considered whether the Deputy Administrator erred in approving Notifications of Intent to Treat (NITs) for the year 2000 that were approved before she approved the PMP. The Board accepted that much of the field work for the first NITs is carried out the season before a PMP is finalized. However, the Board found that the detailed site assessments for the year 2000 NITs did not meet all of the requirements of the PMP and her approval decision. The Board was also concerned that members of the public with site specific concerns about a proposed treatment area should not receive less notice of the treatment during the first year of a PMP. The Board recommended that PMP’s be approved before NITs are advertised and submitted to the Deputy Administrator.
The Board also made recommendations concerning some other matters that came to its attention during the course of the hearing. The Board found that the PMP should be amended to ensure that pesticide treatments were carried out within the term of the PMP. It also decided that the term of the PMP should be extended to December 31, 2006.
Accordingly, the Board sent the PMP back to the Deputy Administrator with directions.