Decision Date: November 8, 2004

Panel: Alan Andison

Keywords:  Pesticide Control Act – ss. 1, 6(3)(a)(ii); adverse effect; cost-benefit analysis; reconsideration of appeal; MSMA

Josette Wier (the “Appellant”) appealed a pesticide use permit issued by the Deputy Administrator, Pesticide Control Act (the “Deputy Administrator”) for the application of monosodium methane arsenate (“MSMA”) to control beetle attacks on forests in the Morice Forest District and Tweedsmuir Provincial Park between May 14, 2001 and October 31, 2003.

On July 23, 2002, the Board issued a decision that confirmed the permit, subject to certain amendments.  In its decision, the Board applied a two-part test asking: 1) whether the use of MSMA would cause an adverse effect; and, 2) if so, according to a risk-benefit analysis, is the adverse effect unreasonable?  Finding that, subject to certain amendments, the permit would not cause “an unreasonable adverse effect,” the Board found it unnecessary to review the second part of the test.  The Appellant applied to the B.C. Supreme Court for a judicial review.  The Court concluded that the Board had erred in failing to apply the second part of the test, and sent the matter back to the Board with directions to “consider the viable alternatives disclosed by the evidence when applying the second step of the legal test.”

The Board considered the evidence of all parties on the risks and benefits of using MSMA and alternative methods to control beetles in the affected areas.  The Board found that the risks associated with MSMA use under the terms of the permit were mitigated to a reasonable level when the permit was amended as originally directed by the Board.  The Board found that costs and risks associated with alternative treatment methods made those alternatives unreasonable.  Accordingly, the Board confirmed the decision of the Deputy Administrator to issue the permit, subject to the changes ordered by the Board.

The appeal was dismissed.