Decision Date: December 3, 2009
Panel: Alan Andison
Keywords: Integrated Pest Management Act – ss. 9(3), 14(1); appealable decision; jurisdiction; pesticide use
Margaret Hurst filed an appeal of a letter issued by the Administrator, Integrated Pest Management Act (the “Administrator”), Ministry of Environment. She sought to appeal the Administrator’s refusal to amend a pesticide user non-service licence held by Island Timberlands Limited Partnership (“Island Timberlands”). The licence authorizes Island Timberlands to apply pesticides on its private managed forest lands located near Duncan, BC. Ms. Hurst had requested that the Administrator amend the licence to exclude certain areas located near her property. Ms. Hurst requested the amendment on the basis that the proposed use of pesticides to control the growth of Big Leaf Maple in commercial forest crops would cause unreasonable adverse effects including harm to the environment and human health.
After reviewing Ms. Hurst’s notice of appeal, the Board requested submissions from the parties on the question of whether the Board had jurisdiction to accept her appeal.
The Board reviewed the relevant provisions of the Integrated Pest Management Act (the “Act”), in accordance with the principles of statutory interpretation. The Board found that, although section 14(3) of the Act states that “A person may appeal a decision under this Act to the appeal board”, and Ms. Hurst is a person, there must be an appealable “decision” as defined in the Act in order for the Board to have jurisdiction over the matter. The word “decision” is defined in a very specific manner in section 14(1) of the Act. Section 14(1)(c) lists “refusing to amend a licence” as an appealable decision. However, as a statutory decision-maker, the Administrator only has the powers granted to her under the Act, and section 9(3) of the Act expressly limits the Administrator’s discretion to amend or refuse to amend a licence. Specifically, it states that she may amend a licence on her own initiative or in response to an application of the licence holder, and she may refuse to amend a licence in response to an application by the licence holder. The Administrator does not have the authority to amend a licence in response to a request by a third party, such as Ms. Hurst. Consequently, the Board held that the Administrator’s refusal to amend the licence in response to Ms. Hurst’s request is not an appealable “decision” under section 14 of the Act.
The Board also noted that there are various other provisions in the Act which authorize the Administrator to take action against unreasonable adverse effects, such as through the issuance of licences with term and conditions regulating the use of pesticides, and through various powers to ensure compliance with the Act, regulations, orders, and the terms and conditions of licences.
Accordingly, the appeal was dismissed for lack of jurisdiction.