Decision Date: September 4, 2003

Panel: Alan Andison, David Ormerod, Lorraine Shore

Keywords: Constitution Act, 1982 – s. 35; Pesticide Control Act ss. 1 – definition of “adverse effect” 6(1), 6(3) 12(2), Pesticide Control Act Regulation – s. 2(1), 10(2); unreasonable adverse effect; aboriginal rights and title; duty to consult; jurisdiction; glyphosate; triclopyr.

TimberWest Forest Corporation (“TimberWest”) appealed certain conditions in the Deputy Administrator’s authorization of Pest Management Plan No. 103-597-02/07 (the “PMP”).  The PMP authorized the use of certain pesticides to manage vegetation competing with crop trees on TimberWest’s private lands.  The appealed conditions required separate approval for treatment of areas of cultural significance to the Cowichan Tribes, and prohibited treatment of red alder and bigleaf maple within a certain distance of fish habitat without the approval of an environmental specialist.

The Board held that the evidence did not support a finding that the Deputy Administrator erred by considering irrelevant factors concerning timber harvesting.  The Board found that the Deputy Administrator did not impose the appealed conditions in order to restrict logging activity.  The Board also found that the Deputy Administrator did not impose the appealed conditions in order to avoid an appeal by the Cowichan Tribes.

In determining whether the use of pesticides in the absence of the appealed conditions would cause an unreasonable adverse effect on humans or the environment, the Board considered whether an infringement of a constitutionally protected aboriginal right constitutes an adverse effect under the Pesticide Control Act.  The Board found that the word “damage” in the definition of “adverse effect” in the Act was broad enough to include the infringement of such rights.  The Board found that there would be no adverse effect if the condition restricting treatment of red alder and bigleaf maple was removed from the PMP authorization. The Board further held that there was insufficient evidence to determine whether there would be an adverse effect on constitutionally protected aboriginal rights if the condition requiring separate approval before treating areas of cultural significance to the Cowichan Tribes was removed from the PMP authorization.

The Board found that the Deputy Administrator had a duty to consult with the Cowichan Tribes before authorizing pesticide use on TimberWest’s private lands, and has a wide discretion to impose conditions that require further consultation.  Specifically, the Board held that the conditions requiring separate approval for areas of cultural significance were a reasonable exercise of discretion, but that the condition prohibiting treatment of red alder and bigleaf maple within a certain distance of fish habitat without the approval of an environmental specialist was unreasonable.

The Board held that it has jurisdiction to vary the authorization without being obligated to undertake further consultation with the Cowichan Tribes. Finally, the Board found that there were no special circumstances that warranted an order of costs against TimberWest in this case.

The Board ordered that the authorization be varied by deleting the condition prohibiting treatment of red alder and bigleaf maple within a certain distance of fish habitat without the approval of an environmental specialist.  The Board upheld the other conditions of the Deputy Administrator’s authorization of the PMP

The appeal was allowed, in part.

The Cowichan Tribes’ application for costs against TimberWest was denied.