• BC Rail v. Deputy Administrator, Pesticide Control Act

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    Decision Date: May 30, 1997; Amendment June 3, 1997

    Panel: David Brown

    Keywords: Pesticide Control Act – s. 6; Federal Pest Control Products Act – s. 5; domestic water sources; Islands Protection Society v. B.C. Environmental Appeal Board (1988)(B.C.S.C.); Canadian Earthcare Society v. B.C. Environmental Appeal Board (1988)(B.C.C.A.); evidentiary standard of proof for “adverse effect”.

    This was an appeal against the Pesticide Administrator’s decision to deny a permit to treat brush on the BC Rail right-of-way between Garibaldi (Mileboard 59) and Marne (Mileboard 131), using the herbicides Garlon 4 and Roundup. The decision was based on the inability of the Administrator to determine whether or not the use of the herbicides in the intended manner would result in the contamination of ground and/or surface waters used for potable purposes.

    The Panel noted that it can assume that a federally registered pesticide is generally safe and should not re-evaluate the validity of the warnings and restrictions on the label. The Panel then applied the 2-step test approved by the Court of Appeal in the Canadian Earthcare case: is there an “adverse effect” and if so, is it reasonable or unreasonable. It held that the evidentiary standard required to establish an adverse effect “should not be all that high”.

    The Panel found on the facts that the application of the proposed herbicides would have an unreasonable adverse effect if used between Mile 114 and Mile 117 due to the proximity of a number of domestic water sources that are susceptible to contamination, and the availability of alternative methods to get rid of the unwanted vegetation. The risks to the public in the area far outweighed the cost benefit to the Appellant. However, this was not the case for the rest of the right-of-way, provided that the treatment was carried out in accordance with the label directions and with other directions set out in the Panel’s decision. B.C. Rail was accordingly allowed to conduct the treatment except for the section of right-of-way between Mile 114 and Mile 117 (near Birken).

    The appeal was allowed in part.