Date: 19990506 Docket: 99 1885 Registry: VICTORIA IN THE SUPREME COURT OF BRITISH COLUMBIA BETWEEN: DIETER EISENHAWER, DAVID WHITE and JESSICA WHITE PETITIONERS AND: ATTORNEY GENERAL OF BRITISH COLUMBIA, DEPUTY MINISTER OF ENVIRONMENT, LANDS AND PARKS and PROJECT TEAM (AS CREATED UNDER THE NORTH AMERICAN GYPSY MOTH ERADICATION PROGRAM REGULATION (B.C. REGULATION NO. 32/99) RESPONDENTS REASONS FOR JUDGMENT OF THE HONOURABLE MR. JUSTICE E.R.A. EDWARDS Counsel for the Petitioners: KEVIN E. GILLESE ANDREW B. GAGE Counsel for the Respondents: GEORGE H. COPLEY, Q.C. JEAN WALTERS Counsel for the A.G. Canada: JOHN HAIG, Q.C. Place and Date of Hearing: VICTORIA, B.C. MAY 3 & 4, 1999 [1] The petitioners apply under the Judicial Review Procedure Act for various orders, the effect of which would be to prohibit the respondents from 'spraying or causing to be sprayed any BTK-based pesticide as described in the North American Gypsy Moth Eradication Program Regulation ("the Regulation")" or alternatively to require the respondent project team to take certain procedural steps and to require the project team to obtain permits under the Pesticide Control Act before undertaking such spraying. [2] The Regulation was made February 4, 1999, by Order in Council 169/99. In the same Order in Council the following was enacted: . . . (b) an emergency is declared to exist and the application of the Pesticide Control Act is limited to the extent necessary in order that the treatment set out in the North American Gypsy Moth Eradication Program Regulation may be carried out, and (c) the treatment is to be carried out on the areas, and in the manner and by the persons, as set out in the North American Gypsy Moth Eradication Program Regulation, without the requirement for a permit of pest management plan under the Pesticide Control Act. [3] After this petition was filed, by Order in Council 506/99 dated April 23,1999, paragraphs (b) and (c) of Order in Council 169/99 were repealed and replaced by the following: . . . (b) an emergency is declared to exist by reason of a North American Gypsy Moth infestation in British Columbia, and (c) the application of the Pesticide Control Act is limited to allow any program for the treatment of any North American Gypsy Moth infestation to be carried out (i) as authorized by the project team described in section 2 of the North American Gypsy Moth Eradication Program Regulation, or (ii) as directed by an inspector under SOR/95- 212, the Plant Protection Regulation, made under the Plant Protection Act (Canada), without a permit or pest management plan under the Pesticide Control Act; . . . [4] The Regulation was unaffected by Order in Council 506/99. [5] The respondents rely on s. 8 of the Plant Protection Act (British Columbia) as authority for the Regulation. Section 8 of the Plant Protection Act (British Columbia) provides in part: 8 (1) In order to prevent the spread in British Columbia of an insect, pest or disease destructive to plants, the Lieutenant Governor in Council may make regulations referred to in section 41 of the Interpretation Act. (2) Without limiting subsection (1), the Lieutenant Governor in Council may make regulations as follows: (a) prescribing the type or manner of treatment and who must carry it out; . . . [6] The effect of Order in Council 506/99 and the Regulation is to limit the application of the Pesticide Control Act so as to "allow any program for the treatment of any North American Gypsy Moth infestation to be carried out ... without a permit or pest management plan under the Pesticide Control Act" if such a program is either "authorized by the project team described" in s. 2 of the Regulation or "directed by an inspector" designated under federal authority. [7] No submissions were directed to the possibility of any program being undertaken at the direction of such an inspector. Counsel for the Attorney General of Canada advised that no such program was presently contemplated. [8] Section 2 of the Pesticide Control Act authorizes the Lieutenant Governor in Council to declare that an emergency exists and if such a declaration is made to suspend or limit the application of the Pesticide Control Act for a period of time. Both Order in Council 506/99 and the Regulation are stated in the former to be repealed effective December 31, 1999. [9] Before the Regulation was made the project team identified areas to be treated with BTK and these were approved by the Deputy Minister of Environment Lands and Parks on January 19, 1999. Maps indicating those areas have been widely publicized and are known to the petitioners. [10] There is no evidence that the project team has to date formally "authorized" any treatment program, nor that any federally designated inspector has "directed" such a program. [11] The Regulation sets out the type and manner of treatment in some detail and specifies that the eradication program it details will be "planned and conducted jointly by a multi-level government project team" composed of representatives selected by an official of Ministry of Forests designated by title, from specified provincial ministries, the Canadian Food Inspection Agency, the Capital Health Region and the City of Victoria. [12] The argument before me proceeded on the implicit assumption that the areas identified by the project team and approved by the Deputy Minister would be treated by aerial spraying of a BTK pesticide sometime between Thursday May 6, 1999, and June 30, 1999. But for Order in Council 506/99, this would require a permit or pest management plan under the Pesticide Control Act. [13] If "authorized" by the project team or "directed" by a federal inspector such spraying will not require a permit or pest management plan. Any person conducting such an aerial spray program without a permit or pest management plan, would otherwise be subject to prosecution under s. 22 of the Pesticide Control Act. [14] I assume the project team members will "authorize" themselves or persons under their direction to conduct the aerial spraying of BTK in accordance with the Regulation in the approved areas. Otherwise a permit would be required, which would be contrary to the clear intention of Order in Council 506/99. Under Order in Council 506/99 the project team could authorize or an inspector could direct some other treatment in some other areas without a permit, but there was no evidence this is contemplated. [15] The only offences specified in s. 7 of the Plant Protection Act (British Columbia) are failing "to comply with an order or direction of the minister or an inspector" and interfering "with an inspector". Since there is no suggestion that any such order or direction governs any aspect of the anticipated spraying , nor that any inspector will be involved, there is no prospect of anyone engaged in carrying out the eradication program detailed in the Regulation committing an offence under that section. [16] Counsel for the respondents indicated that the Regulation was enacted to provide legal authority for those carrying out the treatment program, so as to protect them from potential damage claims. Counsel submitted that failing to comply with the Regulation, for instance by spraying an area not approved, would mean any protection from liability afforded by the Regulation would be unavailable, should damages attributable to the eradication program occur. [17] BTK, properly Bacilleus Thuringiensis var. Kurstaki, is a commonly used bacterial insecticide. The evidence before the court discloses the overwhelming weight of scientific information indicates BTK is not infectious or toxic to humans, or indeed to species other than moths and butterflies. [18] The commercial insecticide to be used as directed in the Regulation is Foray 48B. It contains inert substances which, while undisclosed to the public by the manufacturer, have been disclosed to the federal Pest Management Regulatory Agency, which has authorized Foray 48B for aerial spraying in urban areas even when human exposure may occur, based on the characteristics of these inert substances and their expected concentrations when used in accordance with the Agency's registration authorizing the use of Foray 48B. [19] There is a history of aerial spraying of Foray 48B in populated areas of British Columbia. The most significant example is the 1992 aerial spraying of about 18,000 hectares in the Greater Vancouver area. A study of hospital emergency admissions during the course of that spraying led researchers to conclude no adverse health affects could be attributed to the spraying. [20] The petitioners have filed five affidavits from persons concerned that aerial spraying of Foray 48B presents a health risk to them or their children. [21] Similar evidence apparently persuaded the Environmental Appeal Board, which had on a number of earlier occasions approved aerial spraying of Foray 48B in populated areas, to conclude in 1998 that it created a "risk of an adverse effect to the health of at least some residents of those populated urban areas to be sprayed". Those areas partly coincide with those approved by the Deputy Minister for aerial spraying in 1999. The Board modified a 1998 Pesticide Control Act permit held by federal authorities to forbid aerial spraying in favour of ground spraying of Foray 48B and other alternative treatments, including trapping of moths. [22] Some of the trapping was done by volunteers including opponents of aerial spraying. [23] Evidence of a burgeoning population of North American Gypsy Moths on Vancouver Island in recent years caused the federal government to initiate inspection and regulation of the movement of certain products which might carry the moths and prompted American regulators to request a quarantine of certain Vancouver Island products if the moths are not eradicated. [24] It is uncontroversial the gypsy moth represents a serious threat to several species of trees on Vancouver Island. An American embargo of Vancouver Island products would have serious economic consequences. [25] Provincial scientists monitoring the 1998 treatment program concluded it had failed and recommended an aerial spraying program in 1999 as the only viable alternative means of eradicating the moths. In October 1998 the provincial government announced it would proceed with such a program in 1999 and set up the project team to plan for it. [26] I infer that the declaration of an emergency under s.2 of the Pesticide Control Act was made to preclude the necessity of a permit for the announced aerial spraying program. [27] The petitioners' primary objection is that the declaration has thereby deprived opponents of spraying in 1999 of the opportunity they had in 1998 to persuade the Environmental Appeal Board, or anyone, that there is a viable alternative to aerial spraying of Foray 48B. [28] This case turns on the question of whether the petitioners can demonstrate the respondents would be acting illegally if they proceed with aerial spraying in accordance with the Regulation. [29] The petition advanced ten grounds for the various orders sought. One involving Charter considerations, although not formally abandoned, was not advanced in argument. [30] The first ground is that Orders in Council 169/99 and 506/99 were "made without proper statutory or constitutional authority and by an improper process' because they "by pass' the 1998 decision of the Environmental Appeal Board and thereby deprive individuals of procedural rights. [31] There is no merit to this ground. The 1998 permit considered by the Board was time limited and is spent. Procedural rights of individuals to object to permit applications and appeal the granting of permits under the Pesticide Control Act accrue only in regard to "live" permit applications. [32] The fact that the Board's 1998 decision was not appealed or judicially reviewed cannot preclude the Lieutenant Governor in Council from exercising its power to declare an emergency under s. 2 of the Pesticide Control Act. The Board's conclusion in 1998 as to the possible risk associated with aerial spraying as compared with other treatments does not fetter the Lieutenant Governor in Council in its consideration of the whether an emergency declaration is warranted. [33] The declaration of an emergency under s.2 is properly characterized, on the basis of cases binding on this court, as the exercise of a legislative function by the Lieutenant Governor in Council. There are no statutory standards or guidelines, procedural or otherwise, which constrain the exercise of discretion inherent in the that legislative function. The court cannot impose such standards. [34] The wisdom or correctness of the decision to make the emergency declaration are not susceptible to judicial review so long as their is a rational basis for the declaration. Here, the gypsy moth threat to trees on Vancouver Island and the economic consequences of a quarantine or embargo of Vancouver Island products indicate there is such a rational basis. [35] The second ground is that "the Regulation is beyond the authority of the enabling statutes' because it does not invoke s. 24(2)(l) of the Pesticide Control Act to limit the geographic area of the application of the emergency declaration and because s. 2 of the Plant Protection Act (British Columbia) provides it does not apply where the Government of Canada 'specifically regulates' a matter under the Plant Protection Act (Canada). [36] There is no merit to this ground. As noted above, Order in Council 506/99 is time limited and also limits the application of the permit or pest management plan requirements of the Pesticide Control Act so as not to apply to "any program for the treatment of any ... infestation to be carried out as authorized by the project team". Nothing in s. 2 of the Pesticide Control Act requires the limitation of the application of the Pesticide Control Act authorized once an emergency is declared, to be geographically defined by regulation made under s. 24(2)(l), or otherwise. [37] The federal Plant Protection Regulation and in particular Schedule II thereof made pursuant to the Plant Protection Act (Canada) controls the movement of gypsy moths or things infested with them from one place to another. It has nothing to do with aerial spraying. Under s. 17(1) of the Regulation a federal inspector may take steps to eradicate a "pest" by causing it to be treated by a "manner of treatment" determined by the inspector. [38] There is no evidence of any such action by any inspector in relation to the program detailed in the Regulation. There has been no 'specific regulation" of aerial spraying of Foray 48B for gypsy moth eradication in the areas in question under the Plant Protection Act (Canada). Therefore the Plant Protection Act (British Columbia) continues to apply. In any event, if a federal inspector did cause such treatment to be carried out, paragraph 2(ii) of Order in Council 506/99 would exempt the treatment from the Pesticide Control Act permit requirement. [39] The third ground is that the Orders in Council and the Regulation are void for uncertainty. [40] There is no merit to this ground. The extent of the exemption from the permit requirements of the Pesticide Control Act is clear. The petitioners have no difficulty in understanding Order in Council 506/99 will exempt the treatment program detailed in the Regulation from the permit requirements of the Pesticide Control Act. That is what they object to. [41] The fourth ground is that the Regulation contains an illegal subdelegation of authority by first providing that BTK will be applied to all areas of Vancouver Island "potentially infested" with the gypsy moth and then directing that the areas to be treated will be identified by the project team and approved by the Deputy Minister. This ground rests on the assumption that to be valid any limitation of the application of the Pesticide Control Act mandated under s. 2 of the Pesticide Control Act must be geographically limited. As noted above the language of s. 2 does not support that assumption. [42] Further, since Order in Council 506/99 does not limit the permit exemption to the eradication program detailed in the Regulation but to "any program to be carried out as authorized by the project team" or "directed by an inspector" the validity of the Regulation and the means whereby the areas to be treated by aerial spraying were determined and approved are irrelevant to the question of whether the permit exemption provided for in Order in Council 506/99 is valid. [43] That conclusion also disposes of the further grounds advanced by the petitioners. They all deal in one way or the other with the process whereby the areas to be sprayed were or ought to be identified. [44] The legal validity of the emergency declaration and the exemption from the permit requirements of the Pesticide Control Act do not rest on the legal validity of the Regulation since neither is contingent on or limited to the project team carrying out the treatment program detailed in the Regulation. Apart from the description of the project team in s. 2 of the Regulation, Order in Council 506/99 makes no reference to the Regulation. [45] The validity of the Regulation may affect the availability of the defence of statutory authority which counsel for the respondents advanced as the rationale for its enactment, but it does not affect the validity of the emergency declaration or permit exemption in Order in Council 506/99. [46] Nothing in the Plant Protection Act (British Columbia) suggests the Regulation is required to authorize the program it details. Once the Pesticide Control Act permit requirement is removed, no enactment prevents the project team from carrying out that program even if it were not set out in the Regulation. No enactment would be violated if the project team did or did not carry out that program. If the program team carries out a program different from that detailed in the Regulation, the possible consequence would be the loss of any defence from legal liability afforded the project team by the Regulation. The petitioners have failed to demonstrate that the Lieutenant Governor in Council acted illegally in making Orders in Council 169/99 and 506/99 in so far as they declare an emergency and exempt the project team from the permit requirements of the Pesticide Control Act. [48] With respect to the Regulation, the petitioners are in effect seeking an injunction or declaration respecting the proposed exercise of the "statutory power" (as defined by the Judicial Review Procedure Act) conferred by the Regulation. [49] The project team may, but in light of the repeal of Order in Council 169/69 need not necessarily, implement the eradication program detailed in the Regulation in order to enjoy the exemption from the Pesticide Control Act permit requirement afforded by Order in Council 506/99. Even if the Regulation were invalid, nothing would be accomplished by prohibiting the project team from exercising the statutory power conferred by the Regulation. The project team could implement another eradication program and still enjoy the permit exemption. [50] I need not therefore determine the validity of the Regulation since the project team would violate no enactment by implementing "any" program including that program detailed in the Regulation, even if there were no Regulation. It should not be implied from this conclusion that I am expressing any view as to the validity or invalidity of the Regulation. The urgency in reaching a decision on the petition has persuaded me not to delay issuing my reasons to in order to deal with an issue which is irrelevant to the outcome. [51] The petition is dismissed. The parties will bear their own costs. "E.R.A. Edwards, J." Mr. Justice E.R.A. Edwards