• Nadine Dechiron on behalf of Granby Wilderness Society and the Boundary Naturalists v. Deputy Administrator, Pesticide Control Act

    Decision Date:
    File Numbers:
    Decision Numbers:
    Third Party:
    Ministry of Forests, Third Party


    Decision Date: June 1, 2004

    Panel: Alan Andison

    Keywords:  Pesticide Control Act – ss. 1 definitions of “adverse effect,” “integrated pest management” and “pest management plan”, 6, 12,13; pest management plan, glyphosate; triclopyr; “unreasonable adverse effect;” Canadian Earthcare Society v. Environmental Appeal Board (1988) 3 C.E.L.R. (N.S.) 55 (“Canadian Earthcare”); Islands Protection Society v. British Columbia Environmental Appeal Board (1988) 3 C.E.L.R. (N.S.) 185 (“Islands Protection”); grizzly bears

    Nadine Dechiron, on behalf of the Granby Wilderness Society and the Boundary Naturalists (the “Appellant”) appealed the issuance of an approval (the “Approval”) of a pest management plan by the Deputy Administrator.  The Approval was issued to the Minister of Forests, BC Timber Sales, Kootenay Business Area (“MOF”).  The plan and the Approval together authorize the use of pesticides to control vegetation in cutblocks on Crown land in the Boundary Timber Supply Area for a five-year term.

    The Appellant sought an order reversing the Approval, or, in the alternative, an order adding conditions prohibiting the eradication of, and use of pesticides on, grizzly forage foods.  The Appellant raised a number of issues, including: the appropriate test for determining whether a plan will cause unreasonable adverse affects; whether the Deputy Administrator had improperly delegated his discretion in making the Approval; whether the plan met statutory requirements for content; and whether the plan could result in a use of pesticides that would have an unreasonable adverse effect.

    The Board reviewed relevant legislation and case law to determine whether the test that is applied by the Board in determining whether a pesticide use will have an unreasonable adverse effect is appropriate for evaluating pest management plans.  It found that the test was appropriate for evaluating pest management plans.  The Board also found that the plan in this case met statutory requirements for plan content and that the Deputy Administrator did not improperly delegate his authority to MOF when he approved the plan.

    With regard to the question of whether the use of pesticides in accordance with the plan and the approval would cause an unreasonable adverse effect, the Board found that the Appellant provided insufficient evidence to establish that the pesticide use will have an adverse effect on grizzlies as a result of ingesting or directly contacting pesticides.  The Board also found, based on expert testimony from both sides, that the pesticide use might have an adverse effect through the loss of grizzly bears’ food plants and that the Approval does pose some risk to the bears, particularly breeding females.  The Board found that the plan did not reduce the risk of loss to food plants to a reasonable level.

    The Board ordered the Deputy Administrator to amend the Approval to include conditions: 1) requiring assessment of grizzly bear food production on sites anticipated for herbicide use; and, 2) prohibiting the use of glysophate in cutblocks that have exceptional amounts of grizzly bear foods.  The Board was satisfied that, if the Approval was so amended, the use of pesticides under the plan and the Approval would not have an unreasonable adverse effect.  The Board upheld the remainder of the Approval.

    The appeal was allowed, in part.