Decision Date: May 26, 1998

Panel: Toby Vigod

Keywords: Procedure for Avoiding Infringement of Aboriginal Rights; Pesticide Control Act – s. 6 (3)(a); Halfway River First Nation; Delgamuukw; Forest Act; aerial spraying of pesticides; Constitution Act, 1982 – s. 35; delegation of duty to consent; R. v. Van der Peet (S.C.C.)

The Tsilhqot’in National Government (“TNG”) appealed the issuance of a Pesticide Use Permit to the Ministry of Forests by the Deputy Administrator of Pesticide Management. The Permit allowed the Ministry of Forests (“MOF”) to apply the herbicide glyphosate, trade name “Vision,” to two cutblocks in the Quesnel Forest District. TNG appealed the permit, arguing that there was a failure on the part of the Respondent to consult with TNG and that the proposed spray program would result in an unjustifiable infringement of its aboriginal rights. TNG also argued that the spraying would have an “unreasonable adverse effect.” It sought an order rescinding the Permit and requested that the Board place a complete moratorium on chemical spraying in its traditional territory.

The Board found that the question of whether or not a duty to consult had been discharged would depend on the facts and circumstances of each particular case. In this case, the Board found that adequate attempts were made during the Permit approval process to consult with TNG, in that a designated representative, under the supervision of the MOF, made a sustained and adequate effort to provide the Band with full information on Vision and its proposed application, and to solicit input from the Band. The Board further found that the consultation process with TNG was undertaken in good faith and that there was sufficient involvement by MELP and MOF to meet the Crown’s fiduciary obligation to consult with TNG. The fact that the consultation did not result in agreement or consensus did not invalidate the process.

The Board also found that TNG failed to establish any aboriginal rights or aboriginal title to the Permit area. Applying the test from Van der Peet, the Board found that the TNG failed to communicate any specific information relating to the boundaries of territories, traditional uses of the land base, and locations where traditional uses were practiced. TNG merely insisted, with increasing vehemence as time went on, that they were opposed to any spraying in TNG territory. Although TNG claimed lack of resources from government agencies was the reason it could not provide evidence of its specific rights, the Board noted that the court in Halfway rejected a similar argument: the court did not accept that the fiduciary duty of the Crown includes a duty to provide funding so a Band can provide meaningful input.

On the limited evidence before the Board on the issue of unreasonable adverse effect, the Board found that there was no adverse effect as defined in the Pesticide Control Act. Even if there was an adverse effect, the Board found that the permitted application was reasonable. The Appeal was dismissed.