2005 BCSC 1031 Granby Wilderness Society v. Environmental Appeal Board

Before: The Honourable Mr. Justice Slade

Reasons for Judgment

Counsel for the Petitioner:	T.R. Buri, Q.C. R.J. Overstall
Counsel for the Respondent, Environmental Appeal Board:	No one appearing
Counsel for the Respondent, Ministry of Forests and Attorney General:	D. Roberts
Date and Place of Hearing:	April 13, 2005
	Smithers, B.C.

INTRODUCTION

[1] This is a petition for judicial review of a decision of the Environmental Appeal Board (the "Board").

[2] The matter before the Board concerned a Pest Management Plan (the "Plan") that the administrator had approved under s. 6(3) of the Pesticide Control Act. The primary argument advanced in the appeal was that the process and considerations mandated by the Plan (styled by the appellant/petitioner as the "decision making matrix") to guide the decision of the Plan holder whether to apply pesticides, would not permit a determination that there would be no unreasonable adverse effect on the environment.

[3] The Board ordered a variation of the Plan, but dismissed the appeal to the extent that it sought an order reversing the administrator's approval. The Board found, as a matter of law, that the administrator must be satisfied that the Plan reflects the content requirements of the definition of "pest management plan" and "integrated pest management" set out in the Act. The Board rejected the argument that the administrator must determine whether the "decision making matrix" was sufficient, if complied with, to establish a reasonable assurance that the use of a pesticide within the Plan area would not cause an unreasonable adverse effect on the environment.

[4] The primary argument of the petitioner in this application for judicial review of the Board's decision is that the Board erred in law in its interpretation of the statutory requirements guiding the administrator's determination that the pesticide application authorized by the Plan will not cause an unreasonable adverse effect. As such, the standard of review is correctness.

[5] I have concluded that the Board erred in law. My reasons follow.

BACKGROUND

[6] The holder of the Plan is the Crown in Right of the Province, as represented by the Minister of Forests. It is administered by Ministry of Forests staff.

[7] The area of land encompassed by the Plan is approximately 650,000 hectares, located between the U.S. border to the south, the Big White ski hill to the north, and from west of Bridesville on highway 33 to east of Christina Lake on highway 3.

[8] The Plan is operative for the period from May 1, 2003 to April 30, 2008.

[9] The plan was approved under the authority of the Pesticide Control Act. This act was repealed on December 31, 2004, and was replaced by the Integrated Pest Management Act. Under the transitional provisions of the latter, the former continues to apply to a pesticide management plan approved under that act until the plan expires, is withdrawn, or revoked.

STATUTORY SCHEME

[10] The application of pesticides to water or land is prohibited unless authorized by a permit or pest management plan granted under the authority of s. 6 of the Pesticide Control Act:

6(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.

[11] An application for a permit or the approval of a plan must be made to the administrator (Pesticide Control Act, s. 6(2)).

[12] Section 1 defines the term "permit " as a permit issued under this Act. The Act does not speak further to the contents of a permit.

[13] The term "pest management plan" is defined in s. 1 of the Act:

"pest management plan" means a plan that describes

(a) a program for controlling pests or reducing pest damage using integrated pest management, and

(b) the methods of handling, preparing, mixing, applying and otherwise using pesticides within the program;

"Integrated pest management" is also a defined term:

"integrated pest management" means a decision making process that uses a combination of techniques to suppress pests and that must include but is not limited to the following elements:

(a) planning and managing ecosystems to prevent organisms from becoming pests;

(b) identifying potential pest problems;

(d) using injury thresholds in making treatment decisions;

(e) reducing pest populations to acceptable levels using strategies that may include a combination of biological, physical, cultural, mechanical, behavioural and chemical controls;

(f) evaluating the effectiveness of treatments;

[14] The administrator must be satisfied that certain conditions have been met before issuing a permit or approving a pest management plan:

6(3) The administrator

(a) may issue a permit or approve a pest management plan if satisfied that

(i) the applicant meets the prescribed requirements, and

(ii) the pesticide application authorized by the permit or plan will not cause an unreasonable adverse effect, …

The administrator may, under 6(3)(b), include requirements, restrictions and conditions as terms of a permit or plan.

[15] The administrator is responsible to the Minister for the administration of the Act (Pesticide Control Act, s. 12(1)). The administrator's powers include the following:

12(2) The administrator has the powers necessary to carry out this Act and the regulations and, without limiting those powers, may do any of the following:

(a) determine in a particular instance what constitutes an unreasonable adverse effect;

(b) suspend, amend, revoke or refuse to grant a licence, permit or certificate;

(b.1) suspend, amend, revoke or refuse to approve a pest management plan; …

[16] The contents of a pest management plan are prescribed, albeit generally, by the definitions of "pest management plan" and "integrated pest management". The Act contains no similar prescriptions for the contents of a permit. The reasons for this difference become evident on a review of the Pesticide Control Act Regulation, and a Bulletin issued by the Ministry of Water, Land and Air Protection at the time the Pesticide Control Act was amended to introduce pesticide management plans as a statutory alternative to permits.

[17] Under s. 17(1) of the Regulation, a permit must specify the location and area where the pesticide was to be used, the name of the pest or purpose for using the pesticide, the name of the pesticide, and the method, rate of application, and quantity of pesticide to be used. This degree of specificity indicates that permits are intended for pesticide applications directed at a particular pest, at a particular location. In contrast, plan areas are described in the Bulletin as follows:

The area within an approved PMP will be the largest area managed by a firm or agency for which the pest management program can be practically described. In forestry this could be the Tree Farm Licence area, an operational division or a Ministry of Forests District. The BC Hydro facilities PMP could cover all of the corporation's facilities in the province.

It is evident from the definition of the terms "pest management plan" and "integrated pest management" (s. 1 of the Pesticide Control Act) that pest management plans are intended to authorize the use of various pesticides, directed at various pests, at specific locations within the area covered by the plan. Decisions concerning pesticide use must take into account the matters set out in the plan, and be made in accordance with the prescribed process.

[18] The Bulletin reveals that the recipient or holder of a pest management plan may be a non-government entity, such as the holder of a tree farm licence. The holder would, it appears, initiate the process toward a determination whether to use a pesticide to control a pest at locations within the plan area.

THE PLAN IN ISSUE

[19] As noted above, the Plan covers an area of 650,000 hectares. It was issued for a five year term.

[20] Unlike a permit, the Plan does not authorize a specific application of a pesticide, directed at a specific pest, within a discrete area of land or water. Rather, it describes a program for controlling pests, using integrated pest management for the identification of sites and pest control treatments within the area covered by the Plan.

[21] Section 4.1 of the Plan calls for detailed site assessments for every site where herbicide treatments are anticipated. The detailed site assessments are to include:

· site location and identification

· purpose of treatment

· PMP operating zone

· Herbicide to be used

· Site history

· Site characteristics

· Crop tree data (species, height, s/p/h)

· Competing vegetation (species % of cover, height)

· Waterbodies, wetlands and watercourses

· Watersheds or intakes within 200 meters.

· Habitat assessment or considerations

· Site map

Section 3.7 of the Plan discusses pre-logging planning techniques and preventative measures for controlling pest vegetation. Section 3.6 describes the Plan holder's intention to use various non-chemical and chemical vegetation control methods under the plan. These include manual brushing and weeding, mechanical brushing and weeding, prescribed burning, and mechanical girdling as well as pesticides.

[22] Under the Plan, the ultimate decision to apply a pesticide at a particular location is made by the holder. Those decisions are to be made in accordance with the process for detailed site assessments. The prescribed non-chemical and chemical vegetation control methods described in the Plan must be considered. The holder may use only the specified pesticides.

POSITIONS OF THE PARTIES

[23] The parties differ as to the matters to be considered by the administrator when determining whether he or she is satisfied that "the pesticide application authorized by the … pest management plan will not cause an unreasonable adverse effect," (Pesticide Control Act, s. 6(3)(a)(ii)).

[24] The petitioner submits that the primary matter to be considered by the administrator is whether the decision-making process set out in a pest management plan and, more particularly, the matters that the plan holder must take into account, establishes a reasonable basis for concluding that the application of a pesticide at any specific location within the plan area will not cause an unreasonable adverse effect.

[25] The respondent submits that the administrator may approve a pest management plan if satisfied that the pesticide application authorized by the plan will not cause an unreasonable adverse effect. To find otherwise, it is argued, would ignore the plain wording of s. 6(3)(a)(ii), which makes no distinction between a permit and a pest management plan. In support of this position, the respondent says further that if the legislature intended to establish a different test for approval of a pest management plan, it would have made its intention clear as, in Canadian Earthcare Society v. British Columbia (Environmental Appeal Board), [1988] B.C.J. No. 3109 (C.A.), the court found that s. 6(3)(a)(ii) establishes a two part test where the administrator's decision to permit the application of a pesticide is challenged on appeal.

THE DECISION OF THE ENVIRONMENTAL APPEAL BOARD

[26] The central finding of the Board is set out below:

If the legislature had intended administrators to examine whether the decision-making process set out in a Plan will cause an unreasonable adverse effect, then the Legislature could have said so when it amended the Act in 1997. It did not. Thus the panel finds that on an appeal of a Plan the board must consider whether the pesticide application authorized by the Plan, and not the decision making process set out in the Plan, will cause an unreasonable adverse effect.

[emphasis added]

[27] This finding rests on a wrong premise. A decision making process could not cause an effect, adverse or benign. The real question raised by the appellant/petitioner is whether a decision to use a pesticide, if made according to the Plan, would cause an unreasonable adverse effect.

[28] The Board goes on to find that "on an appeal of a plan the Board must consider whether the pesticide application authorized by the plan, and not the decision making process set out in the plan, will cause an unreasonable adverse effect". This also rests on a wrong premise, namely that the Plan authorizes a "pesticide application" within the meaning of the phrase "pesticide application" in the Pesticide Control Act. My findings on this question will follow.

[29] The Board went on to find that the decision-making process set out in a plan is subject to a separate assessment, as set out in the definitions of "pest management plan" and "integrated pest management". It found that the decision-making process in a plan is to be considered only in a determination whether the Plan meets the content requirements specified in the Act. It concluded that:

Those definitions indicate that a pest management plan must, among other things, describe a program for controlling pests or reducing pest damage using a decision making process that uses a combination of techniques to suppress pests and includes the required elements. Thus, the Panel finds that the decision-making process set out in a Plan must meet certain statutory requirements, but those requirements are separate from the "unreasonable adverse effect" test set out in section 6(3)(a)(ii) of the Act.

ANALYSIS AND CONCLUSION

[30] The matter to be considered by the administrator under s. 6(3)(a)(ii) must be determined on a construction of the words of the statute in the context of the statute as a whole, having regard for the objects and nature of the statute.

[31] The object of the statute is to ensure that pesticide use over water and land is regulated in the interest of prevention of unreasonable adverse effects on humans or the environment.

[32] The statute is, as said by Ross J. in Wier v. British Columbia (Environmental Appeal Board) (2003), 19 B.C.L.R. (4th) 178 (S.C.) at ¶21, "… 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".

[33] The requirement for publication of decisions made by the administrator, and the availability of an appeal to a specialized tribunal by any person (s. 15(2), Pesticide Control Act) reflect a recognition of the public interest in any decision to permit the application of a pesticide to the natural habitat.

[34] The provisions of the statute are, therefore, to be construed in a manner that maintains public confidence in any decision to use a pesticide. The legislative intention implicit in the definitions of "pest management plan" and "integrated pest management" is that any decision to use a pesticide will be made based on all relevant considerations, and within a process that assures a careful weighing of those considerations.

Construction

[35] Section 6(1) of the Pesticide Control Act prohibits the application of 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".

[36] Section 6(3)(a)(ii) provides:

The administrator

(a) may issue a permit or approve a pest management plan if satisfied that

…

(ii) the pesticide application authorized by the permit or plan will not cause an unreasonable adverse effect, …

[37] The threshold for approval of a permit or a pest management plan is crossed when the administrator determines that the "pesticide application" will not cause an unreasonable adverse effect.

[38] The words "pesticide application" in s. 6(3)(a)(ii) refer to a specific application of a pesticide on water or land. This meaning follows from the words "a person must not apply a pesticide to a body of water or an area of land unless… (emphasis added)" in s. 6(1). This is reinforced by s. 12(2), which confers on the administrator the power to "(a) determine in a particular instance what constitutes an unreasonable adverse effect". When read together with the relevant portions of s. 6, the phrase "in a particular instance" plainly refers to a particular instance of the application of a pesticide to a body of water or an area of land.

The Pesticide Management Plan

[39] The Plan does not authorize a specific application of pesticide to a body of water or area of land. Rather, it describes a program for controlling pests by means which include the use of pesticides upon an evaluation utilizing a decision-making process that takes into account, at a minimum, the matters specified in the definition of "integrated pest management". It is apparent that the Plan contemplates the holder of the Plan undertaking that evaluation.

Determination of Unreasonable Adverse Effect Under a Pest Management Plan

[40] As the statute requires the administrator to be satisfied that the application of pesticide will not have an unreasonable adverse effect, and a pest management plan does not authorize a specific application of pesticide, the question whether the application of a pesticide will cause an unreasonable adverse effect can be answered only by evaluating the process by which the plan holder may decide to apply a pesticide to a particular body of water or area of land within the plan area. This includes an evaluation by the administrator of the adequacy of the matters to be considered within that process. The administrator must be satisfied that all matters relevant to a determination that the application of pesticides will not cause an unreasonable adverse effect are considered within the process set out in the plan.

[41] The respondent is correct in arguing that the position advanced by the petitioner, if accepted, would have consequences for the application of the two part test articulated in Canadian Earthcare, supra. However, Canadian Earthcare was decided in relation to an appeal of a permit, not a pest management plan. When the Act was amended to provide for pest management plans, the legislature preserved the requirement that the administrator be satisfied that the "pesticide application authorized by the … plan will not cause an unreasonable adverse effect". This, I have found, means a specific application of pesticide to a particular body of water or area of land. As a decision of the administrator to approve a pest management plan is plainly a "decision" within the meaning of s. 15(1) of the Pesticide Control Act, and thus subject to appeal, the legislature must have intended that the matter for review on appeal is the efficacy of the plan in giving effect to the objects of the statute.

The Environmental Appeal Board Decision

[42] The conclusion of the Environmental Appeal Board that all of the statutory requirements for a pest management plan are satisfied if it complies with the content requirements as set out in the definition of "pest management plan" and "integrated pest management" is, I find, wrong in law.

[43] Section 6(3)(a)(ii) applies to pest management plans. The administrator is required by the statute to be satisfied that the application of a pesticide under the authority of a pest management plan will not cause an unreasonable adverse effect. The administrator must, therefore, consider whether the pest management plan:

1. sets out all matters to be considered by the plan holder, as required to permit the administrator to be reasonably assured that the application of pesticide within the plan area will not cause an unreasonable adverse effect. This is not limited by the matters set out in the definitions of "pest management plan" and "integrated pest management".

2. limits the scope of the discretion of the plan holder to an extent that the administrator may reasonably be satisfied that the application of pesticide to a body of water or area of land, as allowed by the plan, will not cause an unreasonable adverse effect.

3. includes a mechanism for notification to the administrator in advance of the intended application of pesticide to a body of water or area of land, in order that the power of the administrator in s. 12(2)(a) to "determine in a particular instance what constitutes an unreasonable adverse effect", is not, in practice, delegated to the holder of the Plan.

DISPOSITION

[44] The decision of the Environmental Appeal Board is set aside pursuant to s. 7 of the Judicial Review Procedure Act.

[45] The Board's decision stated the issues before it as follows:

The issues to be decided in this case are as follows:

1. What is the appropriate test to be applied when determining whether the use of pesticides under a pest management plan will cause an unreasonable adverse effect?

2. Whether the Deputy Administrator improperly delegated his discretion in approving the Plan.

3. Whether the Plan meets the statutory content requirements for pest management plans under the Act.

4. Whether the use of pesticides in accordance with the approved Plan will have an adverse effect?

5. If so, whether the adverse effect is unreasonable.

[46] The Board is directed, pursuant to s. 5(1) of the Judicial Review Procedure Act, to reconsider its decision in this matter.

[47] The petitioner may re-frame the issue(s) on appeal to reflect my findings on the law.

“H.A. Slade J.”
The Honourable Mr. Justice H.A. Slade

Citation:	*Granby Wilderness Society v. Environmental Appeal Board,*
	2005 BCSC 1031