IN THE SUPREME COURT OF BRITISH COLUMBIA
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Citation: |
Wier v. Environmental Appeal Board et al., |
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2003 BCSC 1441 |
Date: 20030924
Docket: 12731
Registry: Smithers
Between:
JOSETTE WIER
PETITIONER
And:
ENVIRONMENTAL APPEAL BOARD and MINISTER OF
FORESTS OF THE PROVINCE OF BRITISH COLUMBIA
RESPONDENTS
Before: The Honourable Madam Justice Ross
Reasons for Judgment
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Counsel for the Petitioner |
T.R. Buri, Q.C. and R.J. Overstall
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Counsel for the Respondent Minister and for the Attorney General |
E. Rowbotham |
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Date and Place of Hearing: |
July 29 and 30, 2003 |
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Smithers, B.C. |
INTRODUCTION
[1] Pursuant to an application dated November 10, 2000, the Deputy Administrator, Pesticide Control Act, R.S.B.C. 1996, c. 360, (the “Act”) issued a Pesticide Use Permit No. 402-582-01/03 (the “Permit”) to the Minister of Forests, Morice Forest District (the “Permit Holder”). The Permit authorizes the Permit Holder to use Monosodium Methane Arsenate (“MSMA”), sold under the trade name “Glowon”, to control Spruce Bark beetles and Mountain Pine beetle in the Morice Forest District and Tweedsmuir Provincial Park.
[2] Bark beetles are small insects that kill mature trees by boring into the tree and laying eggs under the bark, in the phloem area. After the eggs hatch, the larvae mine the phloem area, cutting off the tree’s supply of water and nutrients. Once the larvae mature, the beetles emerge and fly to neighbouring trees to lay their eggs and begin the cycle anew.
[3] The Permit contained several conditions. Condition E authorized the Permit Holder to apply MSMA to individual Bark beetle infested trees using the injection method which involves injecting the pesticide into cuts made at the base of the tree. The pesticide is then transported up in the tree through the natural processes of moisture and nutrient flow.
[4] Other conditions prescribed the rate of application, the total quantity of MSMA to be applied and the area of application. Several conditions dealt with the protection of water bodies and water used for domestic purposes and irrigation. Condition F provided for the applications to occur during the period of May 14, 2001 to October 31, 2003.
[5] The petitioner, Josette Wier, appealed the decision to issue the Permit to the Environmental Appeal Board (the “Board”). The Board framed the issues on appeal as follows:
(a) Ms. Wier contended that the use of MSMA in accordance with the Permit would result in adverse effects on the environment and human health; and,
(b) Counsel for Ms. Wier also contended that the two-step test generally applied by the Board in determining whether there is an adverse effect as defined in the Act has been affected by the decision of the Supreme Court of Canada in 114957 Canada Ltee. (Spraytech, Societe d’arrosage) v. Hudson (Town), [2001] 2 S.C.R. 241, [2001] S.C.J. 42.
[6] The Board, by reasons dated July 23, 2002, in Appeal No. 2001-PES-003(a), confirmed the decision of the Deputy Administrator to issue the Permit, subject to amendments to the Permit to reduce the total volume of MSMA approved for use by the equivalent of 57,500 trees and the removal of Tweedsmuir Provincial Park. The Board held at p. 19 of its decision:
(a) the majority decision in Spraytech, supra, does not affect the legal test applied by the Board in pesticide appeals;
(b) the legal test is as set out in Canadian Earthcare Society v. British Columbia (Environmental Appeal Board) (“Earthcare”) (1987), 2 C.E.L.R. (NS) 254, [1987] B.C.J. No. 1747.
[7] The Board at p. 20 of its decision articulated that test as follows:
The Board has considered the issue of adverse effect and whether it is reasonable in numerous past decisions. Recently, in Matz et al. v. Deputy Administrator, Pesticide Control Act (Environmental Appeal Board, Appeal Nos. 2001-PES-005/006/007/011 and 2001-PES-010, May 29, 2002) (unreported)) the Board made the following findings which this Panel adopts regarding the test that must be followed:
The British Columbia Court of Appeal has ruled that the Environmental Appeal Board can consider a registered pesticide to be generally safe when used in accordance with the label (Canadian Earthcare Society... However, it is also clear that the fact that a pesticide is federally registered does not mean that it can never cause an unreasonable adverse effect.
It is clear that the test for “unreasonable adverse effect” is site specific and application specific.
[8] The Board ultimately granted the permit, albeit with amendments. Ms. Wier commenced these proceedings seeking judicial review of the decision.
ISSUE
[9] The issue in this application for judicial review is whether the Board erred in its application of the test articulated in Earthcare, supra, by:
(a) improperly limiting its consideration of evidence concerning toxicity to evidence in relation to site specific considerations; and
(b) concluding that there was some risk but that the risk was not unreasonable without undertaking the appropriate analysis.
[10] I have concluded for the reasons set out below that the Board did err in its application of the test and accordingly order the matter remitted to the Board for re-consideration.
LEGISLATION
[11] Federal
legislation requires registration of a pesticide under the Pest Control
Products Act, R.S.C. 1985, P-9 and the Pest Control Products
Regulation, C.R.C. c 1253 before the pesticide can be manufactured,
imported, sold, used or disposed in
[12] The use of pesticides in the province is regulated under the Act and the Pesticide Control Act Regulation B.C. Reg. 319/81. Pursuant to Section 6(1) of the Act, no pesticide may be applied without a permit or approved plan. Pursuant to Section 6(3) of the Act, a permit may be issued under such terms as are considered appropriate, where the Administrator is satisfied that prescribed requirements are met and the application authorized will not cause an unreasonable adverse effect. Sections 6(1) to (3) read:
Pesticide must be applied in accordance with permit or approved plan
(1) Except as provided in the regulations, a person must not apply a pesticide to a body of water or an area of land unless the person
(a) holds a permit or approved pest management plan, and
(b) applies the pesticide in accordance with the terms of the permit or approved pest management plan.
(2) An application for a permit or the approval of a pest management plan must
(a) be made to the administrator,
(b) be in the form required by the administrator,
(c) contain the information prescribed by regulation and any other information required by the administrator, and
(d) be accompanied by the applicable fee established by regulation
(3) The administrator
(a) may issue a permit or approve a pest management plan if satisfied that
(i) the application meets the prescribed requirements, and
(ii) the pesticide application authorized by the permit or plan will not cause an unreasonable adverse effect, and
(b) may include requirements, restrictions and conditions as terms of the permit or pest management plan.
[13] An adverse effect is defined in Section 1 of the Act as an effect that results in damage to humans to the environment.
[14] Decisions of the Administrator made pursuant to Section 6 of the Act may be appealed to the Board pursuant to Section 15 of the Act. That section provides that on an appeal, the Board may conduct the appeal by way of a new hearing. Section 15(7) provides that:
On an appeal, the appeal board may
(a) send the matter back to the person who made the decision being appealed, with directions,
(b) confirm, reverse or vary the decision being appealed, or
(c) make any decision that the person whose decision is appealed could have made, and that the board considers appropriate in the circumstances.
STANDARD OF REVIEW
[15] In considering the appropriate standard of review, the court is to adopt the pragmatic and functional approach described in Pushpanathan v. Canada (Minister of Citizenship and Immigration),[1998] 1 S.C.R. 982 in which the central inquiry in determining the standard of review is to determine the legislative intent of the statute creating the tribunal whose decision is being reviewed.
[16] Four factors are relevant in determining the intent of the legislature:
a) the presence or absence of a privative clause or statutory right of appeal;
b) the tribunal’s expertise relative to that of the reviewing court on the issue in question;
c) the general purpose of the statute and the particular purpose of the provision in question: and
d) the nature of the question – law, fact, or mixed law and fact
See Dr. Q v. College of Physicians and Surgeons of British Columbia, 2003 S.C.C. 19 at para. 26.
[17] The proper focus of the reviewing court is on the relative expertise of the court and decision maker in relation to the particular issue in question; see Barrie Public Utilities v. Canadian Cable Television Association 2003 S.C.C. 28 at para. 12.
[18] In the case at bar, there are no privative clauses and no statutory rights of appeal under the Act or the Environment Management Act, R.S.B.C. 1996, c 118, which creates the Board. This factor is therefore neutral with respect to the level of deference.
[19] There are three dimensions to evaluating the second factor: the tribunal’s expertise; the reviewing court’s expertise relative to the tribunal’s; and the nature of the issue relative to the tribunal’s expertise, see (Pushpanathan, supra, para. 33; Dr. Q, supra, para. 28).
[20] The issue in this case is whether the Environmental Appeal Board erred in its articulation of the two-step legal test as required by s. 6(3)(a)(ii) of the Act as interpreted in Earthcare. This is a pure question of law. The Board does not enjoy greater expertise relative to the court with respect to this issue. Its factual expertise will not assist in the interpretation of the decision of the Court of Appeal in Earthcare. Thus, the second factor suggests that the appropriate standard is correctness.
[21] With respect to the third factor, in my view, the purpose of the statute is to an extent polycentric in that it contemplates the consideration of numerous interests and the balancing of benefits and costs for many parties or interests. Again however, this aspect is, in my view, less engaged with respect to the issue on this application for judicial review; namely did the Board err in its interpretation of the test under Earthcare?
[22] The final factor is the nature of the question. Less deference is generally associated with pure questions of law and in circumstances in which the determination has the potential to apply widely to many cases. The question here is a pure question of law. The petitioner has provided a brief of decisions of the Board in other cases. Review of these decisions shows that the issue of the Board’s interpretation of the test is one that has the potential to apply to many other cases. Thus the final factor favours the standard of correctness.
[23] In my view, having considered the relevant factors, the appropriate standard of review is that of correctness. This conclusion is consistent with the approach taken by Mr. Justice Tysoe in Beazer East, Inc. v. British Columbia (Environmental Appeal Board) 2000 B.C.S.C. 1698.
ANALYSIS
Evidence of Toxicity
[24] One of the issues in Earthcare, supra, was the Board’s refusal in that case to consider evidence of toxicity on the basis of the assumption made by the Board that the process of federal registration for a pesticide and compliance with the authorized method of use generally provides an assurance of safety. Mr. Justice Lander compared the federal and provincial Acts, noting the absence of detailed provisions regarding the necessary scientific evidence in the provincial Act, stating at para. 11:
The Federal Pest Control Products Act, 1968-69, c. 50 requires a pesticide to be federally registered before that pesticide can be sold or imported into Canada. Under the federal regulations a pesticide will only be registered after the applicant has submitted scientific evidence on the result of 13 separate tests (Pest Control Product Regulations, R. 9(2)). The Federal Act and regulations set out a comprehensive framework with respect to the evidence required before a pesticide can be registered. There are no similar provisions in the British Columbia Act. The British Columbia legislation merely states that a pesticide use permit will be granted unless the application of the pesticide would cause an "unreasonable adverse effect". The question arises whether the British Columbia Act would permit the Board to ignore the detailed tests required for a federal registration and to rehear the same evidence on toxicity already heard by the Federal Board? If this were the case, one would logically assume that the British Columbia Act would contain similar detailed provisions regarding the required scientific evidence as in the Federal Act.
[25] He then concluded that the Board had not erred in its refusal to hear the evidence, stating at para. 12:
Common sense dictates that the fact that a federally registered pesticide has undergone extensive testing must have some probative value. I have concluded that the Board did not commit a jurisdictional error by assuming a federally registered pesticide to be generally safe. It is important to bear in mind that the Board did not state that a federally registered pesticide could never cause an unreasonable adverse effect. The Board was willing to hear evidence on toxicity to the extent that the evidence showed that the specific site in question prevented safe application of the pesticide. They further heard evidence whether the proposed pesticide use was contrary to registration intent and restrictions or that the permit holder was unable to apply the pesticide safely.
[26] The Court of Appeal upheld this aspect of the decision. Mr. Justice Taggart, speaking for the Court, stated at para. 18 of its decision:
I agree with that. It is a correct interpretation, in my view, of what is inherent in the quotation I have made from the board's reference to the toxicity issue. It follows that I would reject the first ground of appeal advanced by the appellant.
[27] The petitioner accepts that the test articulated in the Earthcare decision is the correct test to be applied by the Board. However, the petitioner submits that the Board has fallen into error by adopting as a conclusive presumption of law the conclusion that the use of a federally registered pesticide in accordance with the instructions will cause no adverse effect. The effect is that the Board will consider only evidence relating to site specific and application specific concerns.
[28] In the petitioner’s submission such a presumption is not required by the Earthcare decision and, moreover, is contrary to both the decision of the Supreme Court of Canada in Spraytech, supra, and to the precautionary principle.
[29] The respondent contends that the Board complied with the Earthcare test. The respondent emphasizes the fact that the federal and provincial legislative regimes are complementary and that the province has chosen not to legislate in the area of general toxicity, leaving that area to the federal process. In such circumstances, the respondent submits that it is appropriate for the Board to refuse to consider evidence relating to general toxicity.
[30] To my mind it is one thing to say that the Board, relying upon the federal registration process, does not err in refusing in a particular case to address evidence of toxicity, and another to say that it would err if it chose to consider such evidence. In other words, the decision in Earthcare that the Board did not fall into error failing to undertake an inquiry it was obliged to undertake, does not, in my view, mean that the Board is prohibited in every case from such an inquiry.
[31] In my view the Board, in its discretion, is entitled to consider such evidence. It may well be that in the vast majority of cases there would be no reason for the Board to go beyond the fact of federal registration in relation to issues of general toxicity. However, there are situations in which consideration of evidence in relation to general toxicity of a pesticide that has received federal registration could be important in the analysis of possible adverse effects. One example would be where new evidence relating to toxicity that is not specific to the site in question, has become available only after the federal process was complete.
[32] In my view, neither the language of the Act nor the decision of the Court in Earthcare would preclude the Board from considering such evidence in such a circumstance. The Act contains no language that would require the Board exclude from its consideration in all cases evidence relating to toxicity. The reasons of Lander J. provide examples of the kind of inquiry that the Board did undertake, but did not purport to provide an exhaustive list of permissible inquiries.
[33] This interpretation of the test articulated in Earthcare is also consistent with both the decision of the Supreme Court of Canada in Spraytech, supra and with the precautionary principle.
[34] The facts in the Spraytech case were that:
The appellants are landscaping and lawn care companies operating mostly in the greater Montreal area, with both commercial and residential clients. They make regular use of pesticides approved by the federal Pest Control Products Act in the course of their business activities and hold the requisite licences under Quebec's Pesticides Act. In 1991 the respondent Town, located west of Montreal, adopted By-law 270, which restricted the use of pesticides within its perimeter to specified locations and for enumerated activities. The definition of pesticides in By-law 270 replicates that in the Pesticides Act. Under s. 410(1) of the Quebec Cities and Towns Act ("C.T.A."), the council may make by-laws to "secure peace, order, good government, health and general welfare in the territory of the municipality", while under s. 412(32) C.T.A. it may make by-laws to "regulate or prohibit the ... use of ... combustible, explosive, corrosive, toxic, radioactive or other materials that are harmful to public health or safety, in the territory of the municipality or within l km therefrom". In 1992 the appellants were charged with having used pesticides in violation of By-law 270. They brought a motion for declaratory judgment asking the Superior Court to declare By-law 270 to be inoperative and ultra vires the Town's authority. The Superior Court denied the motion, and the Court of Appeal affirmed that decision.
[35] Madam Justice L’Heureux-Dube speaking for the majority, noted that environmental policy informed the legal inquiry. With respect to the significance of that policy she stated at 248-49:
The context of this appeal includes the realization that our common future, that of every Canadian community, depends on a healthy environment. In the words of the Superior Court judge: "Twenty years ago, there was very little concern over the effect of chemicals such as pesticides on the population. Today, we are more conscious of what type of an environment we wish to live in, and what quality of life we wish to expose our children [to]" ((1993), 19 M.P.L.R. (2d) 224, at p. 230). This Court has recognized that [page 249] "[e]veryone is aware that individually and collectively, we are responsible for preserving the natural environment ... environmental protection [has] emerged as a fundamental value in Canadian society": Ontario v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031, at para. 55. See also Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3, at pp. 16-17.
Regardless of whether pesticides are in fact an environmental threat, the Court is asked to decide the legal question of whether the Town of Hudson, Quebec, acted within its authority in enacting a by-law regulating and restricting pesticide use.
The case arises in an era in which matters of governance are often examined through the lens of the principle of subsidiarity. This is the proposition that law-making and implementation are often best achieved at a level of government that is not only effective, but also closest to the citizens affected and thus most responsive to their needs, to local distinctiveness, and to population diversity. La Forest J. wrote for the majority in R. v. Hydro-Québec, [1997] 3 S.C.R. 213, at para. 127, that "the protection of the environment is a major challenge of our time. It is an international problem, one that requires action by governments at all levels" (emphasis added). His reasons in that case also quoted with approval a passage from Our Common Future, the report produced in 1987 by the United Nations' World Commission on the Environment and Development. The so-called "Brundtland Commission" recommended that "local governments [should be] empowered to exceed, but not to lower, national norms" (p. 220).
[36] In dismissing the appeal L’Heureux-Dube J. noted that the federal legislation is permissive rather than exhaustive and there is no operational conflict with the By-Law under consideration.
[37] Her Ladyship further noted that the values reflected in international law help to inform the contextual approach to statutory interpretation. She noted at 266-67 that the By-Law in question respected the precautionary principle:
To conclude this section on statutory authority, I note that reading s. 410(1) to permit the Town to regulate pesticide use is consistent with principles of international law and policy. My reasons for the Court in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at para. 70, observed that "the values reflected in international human rights law may help inform the contextual approach to statutory interpretation and judicial review". As stated in Driedger on the Construction of Statutes, supra, at p. 330:
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[T]he legislature is presumed to respect the values and principles enshrined in international law, both customary and conventional. These constitute a part of the legal context in which legislation is enacted and read. In so far as possible, therefore, interpretations that reflect these values and principles are preferred. [Emphasis added.] |
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The interpretation of By-law 270 contained in these reasons respects international law's "precautionary principle", which is defined as follows at para. 7 of the Bergen Ministerial Declaration on Sustainable Development (1990):
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In order to achieve sustainable development, policies must be based on the precautionary principle. Environmental measures must anticipate, prevent and attack the causes of environmental degradation. Where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for [page267] postponing measures to prevent environmental degradation. |
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Canada "advocated inclusion of the precautionary principle" during the Bergen Conference negotiations (D. VanderZwaag, CEPA Issue Elaboration Paper No. 18, CEPA and the Precautionary Principle/Approach (1995), at p. 8). The principle is codified in several items of domestic legislation: see for example the Oceans Act, S.C. 1996, c. 31, Preamble (para. 6); Canadian Environmental Protection Act, 1999, S.C. 1999, c. 33, s. 2(1)(a); Endangered Species Act, S.N.S. 1998, c. 11, ss. 2(1)(h) and 11(1).
Scholars have documented the precautionary principle's inclusion "in virtually every recently adopted treaty and policy document related to the protection and preservation of the environment" (D. Freestone and E. Hey, "Origins and Development of the Precautionary Principle", in D. Freestone and E. Hey, eds., The Precautionary Principle and International Law (1996), at p. 41. As a result, there may be "currently sufficient state practice to allow a good argument that the precautionary principle is a principle of customary international law" (J. Cameron and J. Abouchar, "The Status of the Precautionary Principle in International Law", in ibid., at p. 52). See also O. McIntyre and T. Mosedale, "The Precautionary Principle as a Norm of Customary International Law" (1997), 9 J. Env. L. 221, at p. 241 ("the precautionary principle has indeed crystallised into a norm of customary international law"). The Supreme Court of India considers the precautionary principle to be "part of the Customary International Law" (A.P. Pollution Control Board v. Nayudu, 1999 S.O.L. Case No. 53, at para. 27). See also Vellore Citizens Welfare Forum v. Union of India, [1996] Supp. 5 S.C.R. 241. In the context of the precautionary principle's tenets, the Town's concerns about pesticides fit well under their rubric of preventive action.
[38] Thus, consistent with Spraytech, the precautionary principle, as articulated in that decision should help to inform the process of statutory interpretation and judicial review. In the circumstances of the case at bar, application of the precautionary principle would favour an interpretation that permitted the Board to consider evidence of toxicity beyond that limited to site specific and application specific concerns. An interpretation that precluded the Board from considering such evidence in any circumstance does not reflect the precautionary principle.
[39] The next step is to review what the Board actually did in the case at bar with respect to the evidence of toxicity. The reasons of the Board do not make it entirely clear what approach they took to the question. On the one hand, the reasons contain several statements that suggest that the Board considered, incorrectly in my view, that it was required to consider only site and application specific evidence. For example:
Ms. Wier expressed concern that toxic substances move through the environment once they have been applied. She is concerned that wild animals may be exposed to the arsenic. In particular, she spoke of mountain goats and woodpeckers. However, Ms. Wier had no evidence of site specific concerns arising out of the use of MSMA as authorized under the Permit. (p. 5, EAB decision) (emphasis added)
The Board applies a two-step legal test in appeals of pesticide use permits and pest management plans issued under the Act. First, the Board determines whether the use of the pesticide in accordance with the permit or plan will cause an adverse effect on human health or the environment. If so, then the Board considers whether the adverse effect is unreasonable. The second step involves a risk-benefit analysis to determine whether the adverse effect is unreasonable, and includes consideration of alternative methods of pest control. The test is site specific. For example, the Board may consider evidence of whether the pesticide can be used safely at a particular site. (p. 9, EAB decision) (emphasis added)
In Shuswap Thompson Organic Assn., the appellant argued that the Board should consider the precautionary principle as a basis for rescinding three pesticide use permits The Board stated:
It is well-established law that the Board can assume that a federally registered pesticide is generally safe...
The test for “adverse effect”, however, must be site specific and application specific – it must be shown that at a specific site the application of the herbicides by the applicant will cause damage to the environment. While there may be a presumption that if the pesticide issued in accordance with the label that there will not be an “adverse effect”, an inquiry must be made into whether or not at the specific site, the particular applicant will be able to use the pesticide in accordance with the label directions. (p. 14, EAB decision) (emphasis added)
[40] On the other hand, despite what it had to say about the site specific limitation to the scope of inquiry, in fact, the Board both heard and concluded that it accepted the evidence of Dr. Cullen relating to the question of toxicity. Dr. Cullen testified with respect to the acute and chronic effects on the human body of the arsenic compounds found in MSMA. It would appear, although that is not explicitly stated in the reasons, that this evidence formed part at least of the basis of the Board’s conclusion at p. 22 that the Permit as issued, absent the amendments it imposed, created a risk “to the environment and workers who apply the MSMA”. This suggests that the Board did take the evidence relating to general toxicity into account in its deliberations.
[41] I have concluded that, considering the Reasons as a whole, the Board did consider the evidence of Dr. Cullen in its deliberations. The actual assessment of that evidence is a matter of fact that falls squarely within the Board’s specialized jurisdiction. It is an area in which the Board is entitled to considerable deference from the court. In the result, I find no error with respect to the first aspect of the issue on review.
Two-Step Test
[42] A second issue in Earthcare, supra, was whether the Board had been entitled to decline to consider alternative treatment methods and silviculture practices. On this issue Mr. Justice Lander concluded at para. 15 that where the Board finds some risk, it must, in order to determine whether the risk is reasonable or unreasonable, weigh the risk against the intended benefit. In that context, evidence of alternative methods and silviculture practice is relevant to the issue of reasonableness. Lander J. wrote at paras. 14-15:
I suggest that the issue is not whether after finding there to be no unreasonable adverse effect can the Board consider evidence of silvicultural practices and alternative methods but instead the issue is whether or not in determining the unreasonableness or reasonableness of an adverse effect can the Board consider evidence of alternative methods and silvicultural practices.
Should the Board find an adverse effect (i.e., some risk) it must weigh that adverse effect against the intended benefit. Only by making a comparison of risk and benefit can the Board determine if the anticipated risk is reasonable or unreasonable. Evidence of silvicultural practices will be relevant to measure the extent of the anticipated benefit. Evidence of alternative methods will also be relevant to the issue of reasonableness. If the same benefits could be achieved by an alternative risk free method then surely the use of the risk method would be considered unreasonable.
[43] Lander J. went on to conclude at para. 17 that in the case before him, the Board had concluded that there was no evidence of any adverse effect and therefore was not required to consider alternative methods and silviculture practice because the question of reasonableness did not arise. Lander J. held at paras. 16-17:
The Board erred in holding that the evidence of silvicultural practices and alternative methods was outside its jurisdiction. However, the issue of silvicultural practices and alternative methods would only be relevant to determine the reasonableness of any adverse effect. If the Board found no adverse effect there would be no need for the board to hear evidence on silvicultural practices and alternative methods.
On the facts of the case at hand, the Board found no evidence of any adverse effect. The petitioner presented no evidence to rebut the Board's assumption that a federally registered pesticide was generally safe. Therefore, although the Board committed a jurisdictional error, that error did not affect its decision. See Swist et al. v. Alberta Assessment Appeal Board [1976] 1 W.W.R. 204. This court has the discretion to refuse to grant certiorari notwithstanding the Board's jurisdictional error.
[44] In Earthcare, at the Court of Appeal, (1988), 3 C.E.L.R. (NS) 55, [1988] B.C.J. No. 3109, Mr. Justice Taggart, speaking for the Court, concluded that Mr. Justice Lander had stated the test correctly. However, the Court concluded that the Board had in its reasons concluded that there were adverse effects, but that these were not unreasonable. In the circumstances, the Board fell into error by refusing to address the evidence with respect to alternative methods and silviculture practices. In the result, the appeal was allowed and the matter remitted to the Board in order that it could approach the question of unreasonable adverse effect taking into consideration the viable alternatives as disclosed by the evidence. At paras. 23-27, Mr. Justice Taggart wrote:
So far, I agree with the Chambers Judge. I think the analysis which the Judge made is a proper one and the statement of the issue is also correct. However, immediately following the passage which I set out above appears this sentence:
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"On the facts of the case at hand, the Board found no evidence of any adverse effect."
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It is to be noted that the Judge makes no reference to the word "unreasonable" coupled, as I think it must be, with the words "adverse effect". That is the language of s. 6 of the statute and I think it is in that context that one must consider this second ground of appeal.
Returning for a moment to the reasons of the board, it is apparent to me from the first paragraph which I have quoted that the board considered that while there were adverse effects on wildlife and hence, in my view, on the environment, it did not consider those adverse effects to be unreasonable.
Applying the analysis made by the Chambers Judge, which I have approved of, it seems to me it was error on the part of the board to eliminate from its consideration a viable alternative of control, including silvicultural methods. The result is that, in my view, the trial Judge erred in concluding that there was no evidence of any adverse effect. It seems to me inherent in the reasons of the board that they found adverse effects. They went on however to say, as the language of the Act, in my view, requires them to do, that such adverse effect as there was was not unreasonable. However, they eliminated from their consideration in reaching that conclusion the possible viable alternatives to the use of the pesticide Roundup.
The result is that on this ground I think the appeal must be allowed and the matter remitted to the Appeal Board in order that it may approach the question of unreasonable adverse effect taking into consideration the viable alternatives as disclosed by the evidence.
[45] In the case at bar, the petitioner submits that the Board fell into the same error as the Board in Earthcare; namely, it found some adverse effect in that, to use the language of Lander J. it found some risk, but concluded that that adverse effect was not unreasonable without considering the evidence of Dr. Partridge and Dr. Safranyik. In so doing it failed to follow the second step of the two-step test articulated in Earthcare. That is to say, the Board reached a conclusion with respect to the anticipated risk without a proper consideration of the anticipated benefits including consideration of silviculture practices and alternative methods.
[46] The respondent submits that, when the decision of the Board is read as a whole, it is evident that notwithstanding the language of the finding, the Board did consider all the evidence and both aspects of the test articulated in the Earthcare decisions.
[47] The Board’s reasons state the following at p. 20-22:
The Panel accepts the uncontroverted evidence of Dr. Cullen that the arsenic compounds found in MSMA will have acute and chronic affects on the human body if they are ingested or otherwise introduced into the human body. However, the Panel is not satisfied that any evidence has been put forward that would lead to the conclusion that the application of MSMA under the Permit poses such a risk to workers who apply this pesticide.
The Panel accepts the evidence of Mr. Nakashoji that contractors that apply MSMA are required to follow the label and the terms of the Permit when applying MSMA. In particular, the Panel notes that the safety equipment required by the Ministry when applying MSMA includes unlined rubber gloves, face shields (avoid splashing and skin exposure), and rain gear. It also requires water and soap to be on site in case of exposure. Further, the Panel notes Dr. Cullen’s evidence that MSMA does not pose a risk of dermal exposure as it will not be absorbed through the skin. Additionally, the Panel notes that any person applying MSMA must be under the direct supervision of a person who is a Certificated Pesticide applicator in British Columbia and must be inn visual or auditory contact at all times. The Panel finds that the safeguards that have been placed around the application of MSMA under the Permit and by the Ministry preclude any unreasonable adverse risk to workers from the application of MSMA.
Ms. Wier expressed concern that the application of MSMA would move through the environment and cause a risk to wild animals such as mountain goats or woodpeckers. However, she provided no direct evidence of how such a risk could occur. No evidence was provided that MSMA, when properly applied would cause an external risk to any animals.
Further, the Panel notes that the terms of the Permit provide generous setbacks to waterbodies and sources of domestic water. In addition, the Technical Report prepared by the Respondent states that, “No studies have shown that water courses are contaminated following standard hack and squirt application.” The Report goes on to say that, “Animals that lick numerous tree trunks or the ground, with drips of MSMA, could possibly consume harmful quantities of the pesticide. However, such exposure can be prevented y proper and careful application by trained, certified applicators.” The Panel finds that there is no evidence that when MSMA is properly applied that it will cause any unreasonable risk to wild animals. Indeed, as with all pesticides, care must be taken to ensure that exposure is directed at the target only. The application of MSMA is no different.
Ms. Wier further expressed concern about the exposure of MSMA to children. However, no evidence was led in this regard, except that children exposed to contaminants may be susceptible to greater risk of harm. In this instance, there is no indication that children will be exposed to MSMA under the terms of this Permit.
Ms. Wier also stated her concern that the volumes of MSMA allowed under the Permit were excessive. The Panel notes that the Permit Holder applied for and received authorization to apply MSMA to 150,000 trees in the District and Tweedsmuir Park. The Panel further notes that Mr. White’s evidence was that only 20,000 trees received MSMA treatment in 2001. The Panel also notes Mr. Nakashoji’s evidence that, due to budgetary restrictions, less trees will receive treatment in 2002 then did so in 2001. The Panel also notes that no treatment will now be made to trees in Tweedsmuir Park in spite of the fact that treatment of trees in the northern vicinity of the park were clearly contemplated in the permit application which was later reflected in the Permit.
The Panel finds that the Permit, as drafted, will allow the application of MSMA on approximately 130,000 trees during 2002 and 2003, as only 20,000 trees have been treated to date in addition to any trees that were treated for spruce bark beetles this past spring. Additionally, if less than 20,000 trees were treated in 2002, as is contemplated, this would allow the Permit Holder to treat 110,000 trees in 2003 over an area that is smaller than the one that is permitted. The Panel finds that this is excessive and could lead to harmful results. In particular, there is a limited time frame for the application of MSMA. Care must be taken when applying this pesticide. If a treatment program were undertaken that is more than double the size of the one that was considered by the Respondent when he issued the three-year Permit, there is a greater chance of mistakes and risk to the environment and workers who apply the MSMA. The Panel finds this risk to be unreasonable. Even if it is not a risk, it is unnecessary in the circumstances.
With these amendments, the Panel is satisfied that the application of MSMA under the Permit will not cause an unreasonable adverse affect. Under these circumstances it is unnecessary to review the second part of the test to determine if the same benefits could be achieved through alternate risk free methods. That being the case, it is unnecessary to further consider the very helpful evidence that was given by Dr. Partridge and Dr. Safranyik.
[48] In my view, the Board, as evident from the passages set out above, did find that there was an adverse effect in the sense of the term as used by Lander J. in Earthcare, “some risk” (supra at para. 15). The Board then took steps to make this risk of adverse effects reasonable through modification of the terms of the Permit. It then reached the ultimate conclusion that with these modifications there is no unreasonable adverse effect. However, the Board in undertaking this analysis did not consider the evidence of Dr. Partridge and Dr. Safranyik.
[49] I agree with the petitioner in so doing the Board fell into the same error as the Board in Earthcare. It failed to apply the second step of the two-step test articulated in Earthcare. The Board excluded from its consideration evidence relevant to the question of whether the risk it had identified was reasonable or unreasonable.
[50] Accordingly, the matter must be remitted to the Board so that it may approach the question of unreasonable adverse effects taking into consideration viable alternatives disclosed by the evidence.
ARGUMENT WITH RESPECT TO THE CHARTER
[51] In the application for judicial review the petitioner made an argument, not made before the Board, based upon section 7 of the Charter. With respect to the application for judicial review, notice was given and no objection taken by the respondent to proceeding on that issue. However, the answers to constitutional questions are of significance to the community at large. Because the matter was not raised before the Board, the record is sparse with respect to questions relevant to the constitutional issue. Particularly in light of the disposition of this application for review on other grounds, I have concluded that a decision with respect to the constitutional question raised should await another case where there is a proper evidentiary foundation.
“C. Ross, J.”
The Honourable Madam Justice C. Ross