Decision Date: August 21, 2003

Panel: Alan Andison

Keywords: Pesticide Control Act– section 15(8); aerial spraying; stay application.

The Nak’azdli Band Council requested a stay of an Approval issued in relation to a Pest Management Plan.  The Approval permitted Canadian Forest Products to apply pesticides using aerial spray methods to 8 cutblocks within the traditional territory claimed by the Nak’azdli First Nation.

The Board held that the Nak’azdli Band Council provided sufficient site-specific evidence to show that irreparable harm may arise from the use of pesticides on 4 of the 8 cutblocks.  The Board accepted the evidence of the Nak’azdli Band Council that the pesticide use would reduce the availability of plants and wildlife for hunting and gathering, and that aerial spraying could pose health risks to Band members living in seasonal residences in the area of the cutblocks.  The Board also noted that Nak’azdli Band’s appeal would become moot if the stay were denied, as all of the pesticide treatments would be completed by the time a hearing on the merits could be held.

The Board further concluded that, on these 4 cutblocks, the possibility of irreparable harm to members of the Nak’azdli Band outweighed the possible financial harm to Canadian Forest Products in the event of a stay being granted.

However, in relation to the other 4 cutblocks, the Board found that the Nak’azdli Band failed to establish that it would suffer irreparable harm if a stay was denied and that the balance of convenience favoured denying a stay with regard to those cutblocks.

The Board granted the application for a stay, in part (stay granted for 4 cutblocks).