environmental fourth floor 747 fort street appeal …on february 23, 1999, mof published a notice...

Environmental Appeal Board

Fourth Floor 747 Fort Street Victoria British Columbia Telephone: (250) 387-3464 Facsimile: (250) 356-9923 Mailing Address: PO Box 9425 Stn Prov Govt Victoria BC V8W 9V1

APPEAL NOS. 1999-PES-10(b), 1999-PES-11(b) and 1999-PES-12(b) In the matter of appeals to the Environmental Appeal Board under section 15 of the Pesticide Control Act, R.S.B.C., 1996, c. 360. BETWEEN: Grant McMahon APPELLANTS Kaslo and District Community Forest Society Nelson Eco Centre AND: Deputy Administrator, Pesticide Control Act RESPONDENT AND: Ministry of Forests PERMIT HOLDER BEFORE: A Panel of the Environmental Appeal Board Cindy Derkaz Panel Chair Fred Henton Member Jackie Hamilton Member DATE OF HEARING: March 8-10, 2000 PLACE OF HEARING: Nelson, B.C. APPEARING: For the Appellants: Grant McMahon Grant McMahon Nelson Eco Centre Earl Hamilton Susan Hamilton Kaslo and District Julia Sanders Community Forest Society Robert Dovey For the Respondent: Dennis Doyle, Counsel For the Permit Holder: Jim Annunziello Gerald Reichenback APPEAL

Grant McMahon, Nelson Eco Centre (the “Eco Centre”) and Kaslo and District Community Forest Society (the “Forest Society”) (herein collectively called the “Appellants”) appeal the May 20, 1999 decision of R.M. Hlatky, Deputy Administrator, Pesticide Control Act (the “Deputy Administrator”), to issue Pesticide Use Permit #401-475-99/01 (the “Permit”) to the Ministry of Forests (“MOF”), Kootenay Lake Forest District (“KLFD”). The Permit authorizes the use of Vision (active ingredient - glyphosate) and Release (active ingredient - triclopyr) to control herbaceous, ericaceous, mixed shrub and hardwood vegetation in forest blocks

APPEAL NOS. 1999-PES-10(b), 1999-PES-11(b) and 1999-PES-12(b)

located in the Rory Creek and Westfall River valleys from June 30, 1999 to September 30, 2001.

The Appellants are seeking an order that the Permit be cancelled. MOF requests that the Permit be extended to September 30, 2002.

The appeals were heard together.

The Environmental Appeal Board (the “Board”) has the authority to hear the appeals under section 11 of the Environment Management Act and section 15 of the Pesticide Control Act (the “Act”). Section 15 (7) of the Act provides

15 (7) 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.

BACKGROUND

The Rory Creek and Westfall River valleys are in a mountainous region north of Kaslo, south of Golden, east of Revelstoke and west of the Bugaboo Alpine Recreation Area. No people live in the valleys. Meadow Creek, the nearest community, is located approximately 60 km driving distance south of Rory Creek and 80 km south of the Westfall River. MOF is responsible for reforestation in these areas in accordance with a silviculture prescription approved under the Forest Practices Code of British Columbia Act.

On February 4, 1999, MOF applied to the Deputy Administrator for a permit to use Vision and Release on 24 blocks located in 16 openings. Some blocks are to be treated with both pesticides. The total treatment area is 284.1 hectares (268.1 ha with Vision and 16 ha with Release). The application rate is: Vision - 2.14 kg active ingredient per ha/maximum quantity 573.73 kg; Release - 3.84 kg active ingredient per ha/maximum quantity 61.7 kg.

The pesticides are to be used to control competing vegetation around coniferous seedlings and for site preparation. The target species include grasses, fireweed, thimbleberry, bracken fern, lady fern, mixed shrubs, raspberry, aspen and alder. Vision is to be applied by ground backpack spot treatment in a 1 to 1.5 metre radius around each seedling less than 70 cm high. In areas where seedlings have died, Vision is to be applied to provide a vegetation free area for replanting. Release is to be applied on tall deciduous vegetation, primarily alder, by ground backpack basal bark treatment (i.e. a strip of pesticide is sprayed on the base of the stem of each target bush).

Many of the blocks have been planted following a wildfire in 1985 and others have been logged. Some have been planted as many as 3 times but remain


inadequately restocked. The blocks have been manually brushed, some as many as 6 or 7 times.

The following occurred in respect to the Permit application:

On February 11, 1999, the Deputy Administrator wrote to MOF and advised “... in accordance with this province’s fiduciary obligations to First Nations, you are required to ensure that the proposed activities do not infringe upon aboriginal interests ...”. MOF sent referral letters and maps to each of the Shuswap Nation (Kamloops), Lower Kootenay Band and Ktunaxa/Kinbasket Tribal Council (Cranbrook). Thomas Munson responded for the Ktunaxa/Kinbasket Tribal Council with specific concerns about protecting huckleberry and devil’s club and these were excluded as target species in the Permit. There are no Indian Reserves in the area.

The Deputy Administrator forwarded the Permit application for comment to the Pesticide Review Committee. He received recommendations from Al Soobotin, a habitat biologist with Ministry of Environment, Lands and Parks (“MELP”) and Phil Muirhead, Environmental Health Officer, Kootenay Boundary Community Health Services Society, which were incorporated in the Permit. He also received a recommendation from Bryan Kelso, Head, Chemicals Evaluation Section, Environment Canada, dated March 8, 1999, which was not included in the Permit.

On February 23, 1999, MOF published a notice (the “Notice”) in the Kootenay Lake edition of “Pennywise”, a free publication circulating at the north end of Kootenay Lake including Kaslo and the north shore of Nelson. The Notice, headed in large bold type, “Application for Pesticide Use Permit,” listed the purpose of the permit, location and area for treatment, method of treatment, pesticides to be used and treatment dates. It stated that copies of the application and maps of the treatment areas were available for examination at the MOF office. Persons wishing to contribute information about the site for evaluation of the application were requested to send it to both the Deputy Administrator and MOF within 30 days. The Notice also contained a paragraph about the nature of the pesticides and the safety of the proposed treatment.

On May 20, 1999, the Permit was issued as applied for by MOF with a number of restrictions and conditions.

Grant McMahon appealed the Permit on June 18, 1999, citing, inter alia, inadequate public consultation and notification, inaccuracies in the Notice, inadequate assessments of wildlife concerns and potential adverse effects.

The Eco Centre, a non-profit society formed to deal with environmental issues in the Nelson area, appealed on June 18, 1999, on the grounds, inter alia, that the pesticides will have an unreasonable adverse impact on humans and the environment, treatment has not proven to be necessary and there were inaccurate statements in the Notice.


The Forest Society holds a timber licence and actively engages in forestry. It has a policy that no pesticides are to be used in its operating area. Although Rory Creek and Westfall River are outside of its operating area, the Forest Society decided to appeal the Permit to protest the use of pesticides on Crown land. Its appeal, filed on June 18, 1999, cites adverse environmental impacts including reduction of food supplies for large and small mammals and birds, reduction of soil nitrogen and destruction of plants desirable in the forest ecosystem.

The Appellants requested a stay of the Permit to ensure that no spraying occurred prior to a final decision on the appeals. MOF volunteered to delay a majority of the site preparation portions of the Permit until the Board heard the appeals. However, MOF submitted that it should be allowed to carry out the brushing portions of the Permit and treat the site preparation portions within those blocks. On July 22, 1999, the Board refused to stay the Permit in respect to the brushing portions and site preparation therein but stayed the Permit in regard to a majority of site preparation portions as offered by MOF.

Commencing July 19, 1999, and continuing intermittently until August 5, spraying was carried out on seven openings by MOF’s contractor. The spray crews encountered protesters blockading their access. As a result of the protests, MOF decided to discontinue the spray program for 1999 and returned to manual brushing and site preparation.

RELEVANT LEGISLATION

Pesticide Control Act

Definitions

1 In this Act:

“adverse effect” means an effect that results in damage to humans or the environment;

Pesticide must be applied in accordance with permit or approved plan

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.

…

(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, and

(b) may include requirements, restrictions and conditions as terms of the permit or pest management plan. [emphasis added]

Pesticide Control Act Regulation, B.C. Reg. 319/81, as amended (the “Regulation”)

General Prohibition

2 (1) Subject to subsection (2), no person shall

(a) use a pesticide in a manner that would cause an unreasonable adverse effect,... [emphasis added]

Application for a use permit

16 (2) Unless otherwise directed by the administrator, the prospective applicant for a use permit shall publish a notice of the contents of the proposed application in a newspaper circulated in the place where the site of the proposed application of pesticide is located.

(3) Publication under subsection (2) shall be within 45 days of the issue of the application number by the administrator.

Subsection 16(4) stipulates the print size for the heading, the minimum size of the notice and certain information that must be in the notice.

Pest Control Products Act, R.S.C.,1985, Chapter P-9 (the “PCP Act”)

Definitions

2 In this Act, “advertise” includes any representation by any means whatever for the purpose of promoting directly or indirectly the sale or other disposition of a control product;

Deception

4 (2) No person shall package, label or advertise any control product in a manner that is false, misleading or deceptive or is likely to create an erroneous impression regarding its character, value, quantity, composition, merit or safety. [emphasis added]

The Board summarized the relevant legislation and case law in City of Parksville et al. v. Deputy Administrator, Pesticide Control Act (Appeal No. 98-PES-07(c), April 8, 1999) (unreported) commencing at page 5 as follows:


[At] the federal level, the Pest Control Products Act, R.S.C. 1985, P-9 requires a pesticide to be registered before a pesticide can be sold or imported into Canada. It also provides that the pesticide must be used in accordance with its label. The onus is on the applicant to submit all relevant studies to the federal government to show that its product does not cause an “unacceptable risk of harm to public health, plants, animals and the environment” (Pest Control Products Regulations, section 18(d)(ii)), before a decision is made to register a pesticide.

The British Columbia Court of Appeal has ruled that the Board can consider a registered pesticide to be generally safe when used in accordance with the label (Canadian Earthcare Society v. Environmental Appeal Board (1988), 3 C.E.L.R. (N.S.) 55). 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.

Justice Legg, in Islands Protection Society v. British Columbia Environmental Appeal Board (1988), 3 C.E.L.R. (N.S.) 185 (B.C.S.C.) found that, in making its decision, the Board should engage in a two-step process to determine whether a pesticide application would cause an unreasonable adverse effect. The first stage is to inquire whether there is any adverse effect at all. The second stage is if the Board decides that an adverse effect existed, then the Board has to undertake a risk-benefit analysis to ascertain whether that adverse effect is reasonable.

The Court of Appeal decision in Canadian Earthcare Society supported Justice Lander’s finding in the court below that:

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.

It is clear that the test for “unreasonable adverse effect” is site specific and application specific. For the Appellants to be successful, they must show that, at a specific site, the application of the herbicides by the applicant will cause an unreasonable adverse effect to human health or the environment. Evidence of alternative methods is relevant to the issue of “reasonableness.”

THE PERMIT

The conditions of the Permit most relevant to this appeal are as follows:


The pesticide use as applied for on February 4, 1999, may be carried out in accordance with the Pesticide Control Act and Regulation subject to the additional conditions listed below.

D. Signs shall be posted at main access points to the treatment area advising of the treatment and such signs shall be maintained for a period of 1 month following the treatment.

H. Subject to product label limitations, the project described herein may be conducted between the following time periods.

June 30, 1999 to September 30, 2001

I. Wee Spray Services Inc. shall possess a current British Columbia Pest Control Service Licence.

J. All herbicide use shall be carried out by or under the direct supervision of an individual with a valid British Columbia Pesticide Applicator Certificate in the forestry category.

0. To maintain critical streamside vegetation for both aquatic and terrestrial habitats the following list of pesticide-free zones is required based on the Forest Practice Code of British Columbia Act Riparian Stream Classification:

S6 2M S5 5M S3 and 4 10M S1 and 2 15M

Any deviations from these standards will be specified on an individual basis.

P. A 10 metre pesticide-free zone shall be maintained along all other water bodies.

Q. Devil’s Club is to be excluded from herbicide treatment where possible.

…

Conditions R to FF, inclusively, set out site specific treatment prescriptions for each of the 16 openings. Pesticides are not to be applied to blueberry and huckleberry plant species where the following requirement is found within the conditions applicable to a given opening:

Vaccinium species are to be avoided.

…

HH An inspection of the sites receiving herbicide treatment shall be conducted by the permittee within 10 months of the date of pesticide application, but not sooner than 30 days following herbicide treatment. The purpose of this


inspection will be to determine if the applicable permit conditions were met. Such inspections shall be conducted by an independent qualified professional. All instances of non-compliance with the Pesticide Use Permit or the Pesticide Control Act shall be reported to the Deputy Administrator, Pesticide Control Act, in writing, within 72 hours of detection. A copy of the inspection with photos of the non-compliance are to be submitted to the Deputy Administrator within 7 days of the inspection.

The parameters of the inspection are to be determined in consultation with the Deputy Administrator, Pesticide Control Act.

A “qualified professional” means a person who has not been involved in the permit application preparation, pesticide application, or monitoring of the blocks that are under inspection, and who:

(a) has the education and training in a particular applied science or technology including, but not limited to: agrology; biology; or forestry;

(b) is registered under the:

(i) Agrologists Act;

(ii) Foresters Act; or

(iii) is a member of the Association of Professional Biologists of British Columbia; or

(c) through education, experience, accreditation, and knowledge may be reasonably relied on to provide advice within the area of expertise specified in this permit. [emphasis added)

…

KK Request for permit amendments must be directed, in writing, to the appropriate Regional Pesticide Officer of the Pesticide Management Program.”

MOF’s Pesticide Use Permit Application dated February 4, 1999 and five page Herbicide Treatment Summary are attached to and form part of the Permit.

ISSUES

The issues before the Panel can be summarized as follows:

1. Whether there was adequate consultation and notification.

2. Whether the application of the pesticides, in accordance with the Permit, will have an adverse effect on human health or the environment.


3. Whether the adverse effect, if any, is unreasonable in the circumstances, taking into consideration other methods of vegetation control.

4. Whether the Permit provides for adequate monitoring and inspection of the spray program.

5. Whether the Permit should be extended to September 30, 2002.

DISCUSSION AND ANALYSIS

1. Whether there was adequate consultation and notification.

The evidence before the Panel on this issue falls into four categories:

(a) consultation with the Sinixt Nation;

(b) publication of the Notice;

(c) accuracy of the maps accompanying the Permit application; and

(d) timing of the Permit application.

a. Consultation with the Sinixt Nation

In their statement of points, both Grant McMahon and the Eco Centre raised the issue of lack of consultation with the Sinixt Nation.

The Eco Centre called Marilyn Burgoon as a witness and presented a letter addressed to the Board dated March 7, 2000, signed by Marilyn James of the Sinixt Nation. The letter stated that Ms. Burgoon, who is not a member of the Sinixt Nation, was appointed to present evidence and make submissions at the hearing.

Ms. Burgoon testified that the Sinixt Nation participated in an archeological overview assessment of KLFD prepared for MOF in 1996. The 102 page “draft” assessment states at page 3 that the Sinixt-Arrow Lakes First Nation has “expressed or asserted a political or historic interest” in the KLFD. It also states, at page 27:

… Two aboriginal communities, the Ktunaxa-Kinbasket Tribal Council and the Sinixt-Arrow Lakes First Nation are historically and/or ethnographically located within the KLFD.

The Sinixt-Arrow Lakes First Nation is situated west of Kootenay Lake, in the Arrow Lakes region. Although there are no officially recognized Sinixt-Arrow Lakes reserves, many of the Sinixt-Arrow Lake people view Vallican, in the Slocan River Valley, as the centre of their community. In a recent statement, Marilyn James (1995:4), Spokesperson for the Sinixt-Arrow Lakes First Nation, notes that the traditional territory of the Sinixt-Arrow Lakes First Nation corresponds to that area delineated by ethnographer Vern Ray (1936:114), i.e. from Duncan to Kootenay Lakes


west to Rock Creek and the Upper West Kettle River, and from the town of Addy, Washington north to the Big Bend of the Columbia River.

The area described includes the Westfall River valley but not the Rory Creek valley.

The Panel heard that the approximately 4000 Sinixt people are widely scattered. At times there are as many as 300 in the Arrow Lakes area. Many live on reserves in British Columbia and Washington State. The Sinixt Nation has been consulted by forestry companies about plans for logging in the KLFD.

A copy of a letter from Ron Irwin, then Minister of Indian and Northern Affairs, Canada, dated August 9, 1995, was tendered in evidence. The letter states: “… The Arrow Lakes Band ceased to exist as a band for the purpose of the Indian Act when its last member died on October 1, 1953. By this is meant that, as a consequence of death and transfer to other bands, there were no longer any persons qualified for membership in the Arrow Lakes Band under the provisions of the Indian Act. It does not, of course, mean that the Sinixt people ceased to exist as a tribal group.”

Ms. Burgoon stated that she could not give evidence about the traditional use of the Permit areas by the Sinixt people. She said that her purpose in testifying was to have the Sinixt Nation included in the process and that any information about use of the lands would have to come from the Sinixt people. However, she did say that it was her understanding that some of the area was used for berry picking and medicine and cedar root gathering.

The Eco Centre introduced into evidence a copy of a February 5, 1999 e-mail from Al Bradley, MOF District Manager, to Shane Bowden, MOF aboriginal affairs contact, which states “… I suggest we need not refer [the application) to the Sinixt.”

The Deputy Administrator testified that the duty to consult is owed to officially recognized Indian Bands. It is his understanding that because the Sinixt Nation is not an Indian Band within the meaning of the Indian Act, there is no fiduciary obligation to the Sinixt as a First Nation.

Mr. Bowden testified that it is MOF’s position that the Sinixt Nation is not a recognized aboriginal group and, therefore, do not have legal standing. He stated that legal counsel have advised that MOF is not under a legal duty to consult with the Sinixt Nation. MOF views the Sinixt Nation as an “interest group.” Although he has been aboriginal contact person with MOF for five years, Mr. Bowden said he was not aware of any contact by the Sinixt Nation to the MOF office. However, he was aware of the archaeological overview assessment paid for by MOF.

The Eco Centre submitted that the Sinixt Nation has been willfully excluded from the process and the lack of consultation is a contravention of the Deputy Administrator’s and MOF’s fiduciary duty to ensure that the “proposed activities do not infringe on aboriginal interests.” It argued that MOF had failed to meet the prescribed requirements for the issuance of a permit under the Act, section 6(3). It referred the Panel to the Board’s decision in Shuswap Thompson Organic Producers Association v. Deputy Administrator, Pesticide Control Act (Appeal Nos. 98-PES-


04/05 and 97-PES-06, May 28, 1998) (unreported) (the “STOPA case”). The Eco Centre further submitted that there had been a fundamental breach of procedural fairness, which must result in cancellation of the Permit.

The Panel finds that the STOPA case is not on point. One of the issues considered in the STOPA case was whether there had been adequate consultation with various Indian Bands. In the case before this Panel, there was no consultation with the Sinixt Nation. The issue here is whether there was a duty to consult with the Sinixt Nation.

Counsel for the Deputy Administrator submitted that this hearing had been convened to hear three appeals that do not determine the rights of the Sinixt Nation. He submitted that there was insufficient evidence before the Panel to conclude anything about the Sinixt Nation.

MOF argued that it had fulfilled its obligation by consulting with recognized First Nations and the Sinixt Nation does not have official recognition.

Regarding the issue of consultation with the Sinixt Nation, the Panel notes that none of the Appellants represent the Sinixt Nation. Moreover, there was no legal argument or evidence before the Panel on the issue of whether there is a duty to consult with aboriginal peoples who are not a recognized Indian Band under the Indian Act. Without the benefit of such legal argument and evidence, the Panel finds it cannot decide this issue.

b. Publication of the Notice

Grant McMahon raised concerns about editorial comment in the Notice, which reads:

The chemicals we are planning to use are glyphosate (also known as Vision or Roundup) and triclopyr (Release). Both of these chemicals have been selected due to the environmentally friendly nature of the herbicide and the low toxicity to humans and animals. These compounds bind with the soil and can’t move until degraded by microbes and bacteria in the soil (cannot bio-accumulate). This makes these good products to use near water, although all water courses are buffered, to specifications set by Ministry of Environment staff. Our intention is to ensure that herbicide treatments will have minimal impact on the environment and other land users. [emphasis added]

Mr. McMahon referred the Panel to the product label for Release, which states:

Environmental Hazards

This product is highly toxic to fish, aquatic plants and aquatic invertebrates and is not labelled for application to water surfaces. Keep out of lakes, ponds and streams.


The product label for Vision states:

ATTENTION AVOID DRIFT. EXTREME CARE MUST BE USED WHEN APPLYING THIS PRODUCT TO PREVENT INJURING DESIRABLE PLANTS AND CROPS.

Mr. McMahon submitted that the Notice was false and misleading in characterizing the products as “environmentally friendly” and “good products to use near water.” He argued that section 4(2) of the federal PCP Act was contravened because the statement created an erroneous impression regarding the pesticides’ character and safety.

The Deputy Administrator testified that he reviewed the Notice prior to issuing the Permit. He checked that all the requirements of section 16(4) of the Regulation had been met. His position is that, while he would prefer that there is no editorial comment, the Regulation does not preclude it. He stated that it is not his responsibility to assess such editorial comment.

Mr. Annunziello, testifying for MOF, stated that he wrote the Notice and he believes the statements to be accurate.

The Panel finds that it has no jurisdiction to determine whether the Notice is a representation for “the purpose of promoting directly or indirectly the sale or other disposition of a control product” within the meaning of “advertise” in sections 2 and 4(2) of the PCP Act. The Board’s jurisdiction under the Act and the Environment Management Act does not include the ability to make findings in relation to whether the requirements of the federal PCP Act have been complied with. This is a matter for the appropriate federal government authorities to address.

On reviewing the Notice, the Panel finds that it met the requirements of section 16(4) of the Regulation. The Panel finds that while the impugned paragraph was unnecessary, it did not contravene the Regulation. The Panel notes that the Notice was effective in obtaining public comment. A petition, which circulated in Kaslo, contained a copy of the Notice and attracted over 300 signatures opposing the application. There was no evidence that the public was misled.

The Eco Centre submitted that MOF had failed to properly notify the public about the Permit application. It pointed out that the Notice was only published one time, in one of four editions of a local weekly, and did not circulate in the Vallican area, which the Sinixt people view as the centre of their community.

Regulation 16(2) stipulates that unless otherwise directed, the Notice shall be published in a newspaper circulated in the place where the pesticide is to be applied. The Panel finds that publication of the Notice once in the Kootenay Lake Edition of “Pennywise”, which circulates in the Kaslo area, fulfils this requirement.

c. Accuracy of the maps accompanying the Permit application


The Appellants argued that MOF’s maps contained incorrect information which prevented the public from accurately evaluating the Permit Application.

The Eco Centre called Evan McKenzie, a registered professional biologist, as an expert witness. Mr. McKenzie has experience with bioterrain and ecosystem mapping in many parts of B.C., including the Kootenays. His qualification as an expert in mapping was not challenged at the hearing. He surveyed 11 of the blocks over a 3-day period in the third week of October 1999.

Mr. McKenzie testified that the 1:10,000 scale maps that accompanied the Permit application did not give accurate site-specific information. He found discrepancies in the maps for 8 of the 11 blocks. Some watercourses were not shown on the maps, including one S6 stream. In addition, he found unmapped ephemeral channels, seepage areas and a ditch which lead directly to streams that enter fish bearing water courses.

The Appellants did not introduce any evidence that the inaccurate maps prevented any member of the public from providing site-specific information for the purpose of evaluating the Permit.

The Deputy Administrator and MOF submitted that the maps accompanying the Permit application were standard and used for the general purpose of locating the areas to be sprayed.

The Panel finds that the maps accompanying the application contained some inaccuracies and were incomplete. However, the Panel finds that the maps were sufficient for the purpose of the Permit application.

d. Timing of the Permit application

Grant McMahon raised the issue of timing of the Permit application. The application was made in February when the sites were covered with snow, which remained until at least mid-June. He submitted that the “spirit and intent” of the public involvement in the process was undermined because it was impossible for concerned citizens to inspect the sites and submit information for evaluation. The sites were inaccessible during the whole time allowed for public input and appeal.

The Panel heard evidence that MOF and the Deputy Administrator inspected the proposed spray areas in the fall of 1998. The application was “in the works” long before February 4, 1999.

The Panel notes that MOF engages in long range planning, and finds that to encourage public consultation, MOF could have publicized plans for pesticide use when the sites were accessible and before publication of the Notice. However, the Panel finds the formalities of the Permit application process have been complied with in accordance with the Act and the Regulation. Specifically, section 16(3) of the Regulation requires that notice of a permit application shall be published within 45 days of the issue of the application number by the Deputy Administrator. No evidence has been provided to show that this requirement was not complied with.


Furthermore, the Appellants have not satisfied that Panel that their ability to make their case in this appeal was significantly prejudiced by their inability to access the treatment sites before the deadline for public comment on the application. Therefore, the Panel finds that the Appellants had adequate advance notice of the permit application.

2. Whether the application of the pesticides, in accordance with the Permit, will have an adverse effect on human health or the environment.

a. Human Health

The Eco Centre called a number of witnesses to give evidence concerning the adverse health effects on workers applying the spray. Thomas Prior testified that he participated in a blockade of the spray areas in the summer of 1999. He observed the spray crew and estimated they ranged in age from 17 to 24 years. The spray crews were wearing gloves, but no face shields or protective clothing. He was told of one night when the shower at the crew’s camp was broken and the crew was not able to shower. It was his impression that the crew did not take the issue of worker safety seriously. Under cross-examination, Mr. Prior acknowledged that he never witnessed any spraying taking place.

Andy Shadrack testified that he had interviewed an unidentified member of the spray crew who was concerned that there was no proper facility to clean up after work. He also testified that the crewmember felt intimidated and could not speak out in public. Mr. Shadrack reported these concerns to both the Workers Compensation Board and MELP but has not had any response.

The Eco Centre also called Brennan Drew and Alicia Brooks to testify about their experiences working on spray crews in northern B.C. Both of these young workers had been involved in broadcast spray applications, different from the spot treatment and the basal bark applications allowed under the Permit. The witnesses related serious breaches of safety regulations. However, the only health effects that the two witnesses reported were itchy eyes.

The Panel finds that there is no conclusive evidence before it of adverse health effects to workers at Permit spray sites. No worker involved in the spray program in 1999 testified.

The Eco Centre also submitted a letter from Gabriella Grabowsky stating that, on the first weekend of August, a party of four rode horses through an area which they later learned had been sprayed. No signs were posted, contrary to condition D of the Permit. There was no evidence of any effect on human health from this incident.

The Forest Society referred the Panel to journal articles on pesticides and human health including “A Case-Control Study of Non-Hodgkin Lymphoma and Exposure to Pesticides” by Drs. Lennard Hardell and Mikael Eriksson of Sweden, published on March 15, 1999. This study found that further research should be undertaken in


respect to an association between glyphosate use and this disease. As set out in the relevant case law above, the Panel cannot engage in a general examination of the safety of a pesticide.

The Appellants have not satisfied the Panel that, on the balance of probabilities, there would be an adverse effect on human health if the pesticides are applied at these sites in accordance with this Permit.

However, the Panel accepts the Eco Centre’s evidence that signs which should have been posted along access points to one of the treatment areas either were not posted or were not clearly visible to people passing by. The Panel finds that although there is no evidence of any adverse effect on human health arising from this incident, the public should be adequately notified before entering areas that have been treated with pesticides. Therefore, the Panel finds that Condition D of the Permit should be amended to specify that signs shall be posted at the main access points to treatment areas prior to any pesticide treatment, and that these signs shall be easy to read and be located so as to be readily seen by any person using the access points.

b. The Environment

The Appellants raised concerns about the adverse effects of the pesticides on fish and aquatic life, wildlife populations and habitat.

(i) Fish and aquatic life

It is common ground among the parties that the pesticides must not enter watercourses where they may harm fish and aquatic life. The parties differ on whether this Permit adequately protects watercourses.

The Eco Centre’s expert witness, Mr. McKenzie, provided evidence at the hearing as well as in his written report. He stated that, in his opinion, unless all watercourses and streams are mapped (wet and dry) it would be very difficult to avoid spraying them. He testified that most of the S6 streams (i.e. permanent surface water channels that are non-fish bearing) in the blocks he surveyed drain into the fish bearing Rory Creek or Westfall River a short distance from the blocks.

Mr. McKenzie testified that in opening #82K074-07 he found two S6 streams that flow directly into the Westfall River. Only one of the S6 streams on the west side of the block was mapped and, in accordance with the Herbicide Treatment Summary attached to the Permit, requires a 5-metre pesticide-free zone (“PFZ”). The unmapped S6 stream flows into a culvert and thence 50 metres into the Westfall River. Mr. McKenzie was concerned that under terms of the Permit the unmapped S6 stream only requires a 2 metre PFZ.

Mr. McKenzie also testified that the unmapped stream spreads into a 10 to 12 metre wide seepage area. The unmapped stream had been flagged for a PFZ but the flagging did not mark the seepage area. It was Mr. McKenzie’s opinion that it is


highly likely that pesticide sprayed in the vicinity of the stream contaminated subsurface water in the seepage area.

He also noted seasonal seepage areas between two S6 streams in opening #82K067-13. The seepage areas contained alder patches. The Permit authorizes the use of Release on these patches, however no reference is made to a PFZ in respect to these seepage areas.

In opening #82K066-04, Mr. McKenzie observed water flowing in a ditch along the road at the west boundary until it meets an S6 stream which enters Rory Creek about 150 metres below the road. It is Mr. McKenzie’s opinion that the ditch should be considered a permanent watercourse and classified as a S6 stream. A ditch is not a stream within the Forest Practices Code of British Columbia Act classification.

Under cross-examination, Mr. McKenzie admitted that he is not a toxicologist and is not qualified to give an opinion about the effect of the pesticides on fish and aquatic life. He pointed out that he can read the product labels which, in the case of Release, state that the product is highly toxic to fish. He also acknowledged that he could not tell if there had been spray applied in the seepage area in opening #82K074-07 because at the time of his survey, there had been heavy frost in the area and vegetation killed by pesticide looks much like vegetation killed by frost.

The Appellants referred the Panel to the letter from Bryan Kelso of Environment Canada, dated March 8, 1999, to the Deputy Administrator, which included the following:

1. We are concerned about the proposed treatment of triclopyr within the 10 metre pesticide-free zone of the S6 streams and gulleys as indicated in the permit application. We strongly advise that the proponent maintain a 10 metre pesticide-free zone on all water bodies which include both dry and wet streams.

It is known that triclopyr ester and its pyridine and pyridinol metabolites are highly toxic to juvenile salmonids. This herbicide and its pyridinol degradation products are also moderately persistent in the aquatic environment. The potential of triclopyr ester and both of its transformation products being transported to non-target areas via leaching/surface runoff under British Columbia conditions has not been fully investigated. As well, to date, there is no information on the bioavailibility of residues of triclopyr ester and its transformation products in small streams.

The Eco Centre submitted in its closing argument that, if the Permit is upheld, Mr. Kelso’s recommendation should be incorporated into the Permit. It also submitted that the Permit should be amended to require independent monitoring of the sites during the spray application to ensure that the buffers and PFZ’s are adequately identified and flagged for both mapped and unmapped water courses.


The Deputy Administrator testified that he is satisfied that the Permit adequately protects watercourses. He stated that he personally inspected each block in the fall of 1998 and observed the terrain, vegetation and watercourses. In evaluating the Permit, he also relied on site-specific information provided by Peter Corbett, R.P. Bio., Mirkwood Ecological Consultants Ltd.

The Deputy Administrator further testified that he used his expertise to relax the PFZ’s for both pesticides to 2 metres on S6 streams unless otherwise stated in the Permit. He stated that he considered Mr. Kelso’s recommendation with respect to Release but did not agree with it. He referred the Panel to Condition P, which requires a 10 metre PFZ on all other water bodies. It is his opinion that this protects all channels, ditches and seepage areas which do not come within the definition of streams under the Forest Practices Code of British Columbia Act classification.

The Deputy Administrator stated that the maps accompanying the Permit application are not relied on for the purpose of determining buffers and PFZ’s. The Permit requires on-site verification and flagging of streams and watercourses prior to spraying.

In response to questions from the Panel, the Deputy Administrator stated that triclopyr binds in the soil but not as readily as glyphosate. If there is water in a ditch at the time of spray application, the 10 metre PFZ applies. If the ditch is dry, pesticide can be sprayed in and along the ditch. He acknowledged that there could be heavy rain soon after a pesticide is applied which might carry the pesticide into other watercourses.

MOF argues that there is adequate protection for watercourses in the Permit due to the requirement to maintain PFZ’s, as the practice of pesticide applicators is to identify and flag PFZ’s prior to spraying. Garth Wiggle, an employee of MOF, testified that he is responsible for administering the Permit. The contract with the spray applicator calls for a MOF employee to be on-site. He testified that either he or Randy Carlson, another MOF employee, were on-site except for one Sunday. The MOF employees check that the buffers and PFZ’s are identified and flagged.

The Panel finds that the practice of identifying and flagging watercourses prior to spraying protects those watercourses that are not mapped. However, the Panel is concerned that the Permit may not adequately protect ditches and seepage areas which may not be considered “water bodies” by persons identifying and flagging no treatment areas. The Panel notes Mr. McKenzie’s evidence that an unmapped S6 stream in opening #82K074-07 was flagged but the adjacent seepage area was not. The Permit specifically states that “the swamp is to be excluded from the treatment.”

The Panel finds the Permit should be amended to clearly state that a PFZ applies to ditches and seepage areas. The Panel also finds that the Permit should be amended to make it clear that the PFZ’s in the Herbicide Treatment Summary attached to the Permit constitute “deviations” from the “standards” set out in Permit Condition 0. The Panel also finds that an on-site independent monitor would


further ensure that PFZ’s are maintained in respect to both mapped and unmapped watercourses. Therefore, the Panel amends the Permit as set out in the Decision below.

The Panel finds that the application of the pesticides in accordance with the Permit, as amended by this Decision, will not have an adverse effect on fish and aquatic life.

(ii) Wildlife populations and habitats

The Forest Society submitted a number of scientific articles about the effect of pesticides wildlife populations and habitats.

In his evidence for MOF, Allan Pollard stated that there are numerous tadpoles in puddles in the area in the spring. The Forest Society referred the Panel to a document entitled “Herbicides Kill Frogs,” which appears to come from the Internet, prepared by Michael Tyler, Department of Zoology, University of Adelaide, Australia. It reports that the Australian government has banned herbicide products from use near water because of adverse effects on tadpoles and frogs. Apparently the surfactant in Roundup (which contains glyphosate, the same active ingredient as Vision) caused respiratory problems. The Panel notes that the Permit prohibits application of pesticides near water.

The Panel was also referred to an article entitled “Response of Songbirds to Glyphosate Induced Habitat Changes on Clearcuts” by David J. Santillo, Patrick W. Brown and David M. Leslie Jr., published in the Journal of Wildlife Management (1989). This study found that treatment of clearcuts with glyphosate herbicide reduced the complexity of vegetation for 3 years compared to untreated clearcuts. The total numbers of birds (common yellowthroats, Lincoln’s sparrows and alder flycatchers) were less abundant on treated clearcuts. In the same journal the same authors published another study entitled “Responses of Small Mammals and Habitat to Glyphosate Application on Clearcuts.” They found that in treated clearcuts insectivores were less abundant for 3 years post treatment and herbivores were less abundant for 2 years post treatment. Omnivores were equally abundant on treated and untreated clearcuts.

A study published in Northwest Science, Vol. 61 No. 3, 1987, by D. Chris Ritchie, Alton S. Harestad and Ralph Archibald entitled “Glyphosate Treatment and Deer Mice in Clearcut and Forest,” found that deer mice were more abundant in untreated clearcut than treated clearcut but more abundant in old growth forest. The authors postulated that glyphosate likely modified abundance and quality of food and cover for small mammals.

The Forest Society submits that the reduction in vegetation and habitat, along with possible direct spraying of bird’s nests, and the reduction of soil organisms from the proposed spray program constitute an unreasonable adverse effect on the environment.


Mr. McKenzie’s report noted evidence of ungulates, bear and Columbia ground squirrel on the openings.

MOF submits that the spot treatments will leave some vegetation in the blocks undamaged and that the habitat reduction by manual brushing would have the same effect. The Permit also contains a prohibition on spraying vaccinium (blueberry/huckleberry) which are important forage species for bears and ungulates. Mr. Pollard testified that the Permit areas represent only 2 per cent of the whole valley.

Counsel for the Deputy Administrator submitted that the Panel must accept that articles such as those referred to by the Forest Society would have been taken into account by the authorities in the registration process under the PCP Act. There is a prima facie assumption that the products are generally safe if used according to their labels.

Except for Mr. Pollard’s evidence about the frogs and Mr. McKenzie’s evidence, there was no site-specific evidence about the wildlife in the treatment areas. Further, the Panel notes that the studies about habitat reduction were carried out to compare untreated clearcuts with those treated with herbicides. Only one study (“Influence of Alternative Conifer Release Treatments on Habitat Structure and Small Mammal Populations in South Central British Columbia” by J. Bruce Runciman and Thomas P. Sullivan (1996) Canadian Journal of Forest Resource), examined the effects between manual cutting and herbicide treatment for conifer release. It did not find any significant difference between manual and herbicide treatments.

The Appellants have not satisfied the Panel that, on the balance of probabilities, there would be an adverse effect on wildlife populations and habitat in the area covered by the Permit if the pesticides are applied in accordance with this Permit as amended.

3. Whether the adverse effect, if any, is unreasonable in the circumstances, taking into consideration other methods of vegetation control.

The Eco Centre submits that the use of pesticides for vegetation control is unnecessary. They noted that the evidence filed by MOF states that seven of the openings are adequately stocked. Furthermore, they argue that there is a ready pool of manual labourers to do manual brushing.

Mr. McKenzie noted inaccuracies in the bio-classification of some blocks and suggested that seedling mortality may be the result of inappropriate species being planted on the blocks and “snow press” rather than competing vegetation. He suggested that MOF may be trying to reforest to a density and with a crop not naturally indicated at these sites.

The Panel heard evidence from MOF that the cost of manual brushing and site preparation are approximately the same as the cost of pesticide application. However, there is considerable cost saving by using pesticides because competing


vegetation is controlled for a longer period of time. Mr. Pollard testified that MOF’s experience has been that manual brushing in these areas only controls vegetation in the year in which it is carried out. By using pesticides the plants are killed and it will take 2 or 3 years for surrounding vegetation to encroach on the seedlings. This provides the seedlings with a better opportunity to achieve a height where they are no longer bothered by competing vegetation.

As set out above, the Panel has found that the Appellants have not established, on a balance of probabilities, that there will be an adverse effect to human health or the environment if the pesticides are applied in accordance with the Permit as amended. Therefore, the Panel need not enter into a risk-benefit analysis as discussed in the Earthcare case, noted above.

4. Monitoring and Inspection

The Appellants expressed concerns about apparent discrepancies between the Permit conditions and the actual on-site activities.

They submitted that the Permit should contain a provision for monitoring and that there should be independent inspections. The Permit does not require any monitoring during the spray application. The Deputy Administrator stated that he used to hire an independent contractor to do monitoring during and after spraying. Now he does not have any funds to pay a contractor.

The Panel heard evidence that the following conditions of the Permit were not fully complied with during the spraying in 1999 under the Permit:

Condition D

Mr. Prior testified that he and another protester found themselves in an opening, which had been sprayed earlier in the day, and no signs were posted. The letter from Ms. Gabowsky also states that she was in an opening in early August which she later learned had been sprayed and no signs were posted.

Condition I

Mr. Wiggle testified that Wee Spray Services Inc. did not carry out spraying in 1999. The owner injured himself and Mr. Wiggle switched spray contractors. He said that he attempted to notify the Deputy Administrator and sent a letter to him advising of the change of contractors. The Panel notes condition KK requires requests for Permit amendments to be in writing. There is no evidence that the Permit Condition I was ever amended.

Condition 0-FF (PFZ’s)

As noted previously, Mr. McKenzie raised concerns that PFZ’s may not have been maintained. The evidence is not conclusive. The witnesses who visited the spray sites all testified that they were unable to determine the effect of the pesticides on vegetation because the sites had been exposed to frost.


Condition HH

Gerald Reichenback is the Regional Issues Forester for KLFD. Together with Mr. Annunziello, he presented the MOF’s case before the Panel.

Mr. Reichenback testified that he carried out an inspection of the sites receiving pesticide treatment in accordance with Condition HH of the Permit. He testified that he was not involved in the Permit application preparation, pesticide application or monitoring of the blocks and, therefore, was a “qualified professional” who could conduct the inspection. In answer to questions from the Panel, he stated that he had visited the spray sites in mid-September in the company of Mr. Annunziello. His observations were the same as Mr. Annunziello’s – frost had already hit the area and it was hard to tell what had been sprayed. He made one traverse of each block. He kept notes but did not bring them to the hearing and no inspection report has been filed with the Deputy Administrator. He testified that he had not spoken to or consulted with the Deputy Administrator in respect to the inspection.

The Panel notes that Condition HH requires the inspection to be conducted by “an independent qualified professional” and that “ a copy of the inspection with photos of the non-compliance are to be submitted to the Deputy Administrator within 7 days of the inspection,” and that “the parameters of the inspection are to be determined in consultation with the Deputy Administrator …” (emphasis added).

Mr. Reichenback stated that Mr. Annunziello had suggested that he act as inspector and he thought that Mr. Annunziello had obtained approval for this arrangement from the Deputy Administrator. He said that he and Mr. Annunziello have different bosses and work out of different offices.

The Deputy Administrator said in the past there had been an independent inspector who filed written reports with him.

The Panel rejects the submission that Mr. Reichenback is an independent inspector. The Panel finds that the Condition HH has not been fulfilled and there must be an inspection carried out by an independent qualified professional who is not an employee of MOF. An inspection must be done with respect to the 1999 spray sites.

This is a hearing de novo and the Panel has the authority to include in the Permit any conditions that the Deputy Administrator could have included. The Panel directs that the Permit be amended to include independent inspection as set out in the Decision below.

5. Extension

MOF requested that the Permit be extended for a period of one-year ending September 30, 2002. It submits that the spray program was not fully carried out in 1999 because the partial stay was in effect in relation to site preparation and, further, that it was impeded by the protests and blockades. The Panel notes that the stay was only granted in respect to those activities that MOF volunteered to


postpone. Further, Mr. Pollard testified that manual brushing was carried out on much of the area that was not sprayed. MOF has not satisfied the Panel that an extension is necessary.

DECISION

In making this decision, the Panel has carefully considered all the documents, evidence and arguments presented by the parties, whether or not they have been specifically reiterated herein. For the reasons set out above, the Panel has decided to uphold the Permit with a number of amendments. MOF’s request for an extension is denied.

The Panel refers the Permit back to the Deputy Administrator to vary and amend the Permit to reflect the following changes or clarifications:

(1) Condition D - Delete existing clause D, and substitute the following:

Signs shall be posted at main access points to the treatment area prior to any pesticide treatment. The signs and their lettering shall be of a sufficient size and clarity to be easily read. These signs shall be located so as to be readily seen by any person using the access points. The signs shall be maintained for a period of one-month following the treatment.

(2) Condition I - determine if Wee Spray Services Inc. will be the contractor for the remaining term of the Permit. If not, substitute the name of the approved replacement contractor.

(3) Condition 0 - Delete the following: “Any deviations from these standards will be specified on an individual basis”, and substitute the following:

These standards and Condition P shall be superseded by any deviation as specified in this Permit including, but not limited to, the pesticide free zones set out on the five-page attachment entitled “Kootenay Lake Herbicide Treatment Summary.”

And add the following:

Ditches shall be considered to be streams for purposes of this Permit.

(4) Delete Condition P, and substitute the following:

A 10 metre pesticide free zone shall be maintained along all other water bodies including swampy and seepage areas.

(5) Condition HH - delete the following: “A ‘qualified professional’ means a person who has not been involved in the permit application preparation, pesticide application or monitoring of the blocks that are under inspection, and who:” and substitute the following:


A “qualified professional” means a person, approved in writing by the Deputy Administrator, who is not an employee of the permittee, who has not been involved in the permit application preparation or the pesticide application but who may have been involved in the monitoring of the blocks that are under inspection, and who:

(6) To add as a condition of the Permit a requirement for an independent monitor to be on-site during flagging and spray application. This monitor is to be paid for by MOF and is to report directly to the Deputy Administrator. The monitor shall not be an employee of MOF and shall have the qualifications set out in Condition HH of the Permit. The monitor shall be approved in writing by the Deputy Administrator 3 weeks prior to the commencement of the spray program in each year of the Permit. The duties of the monitor shall include: ensuring that the spray crew knows the terms and conditions of the Permit, the product labels and related safety issues; monitoring spraying activities for compliance with the Permit; completing site inspection to ensure that pesticide-free zone and buffer zone restrictions are correctly established, maintained and implemented; and ensuring that all terms of the pesticide label and the Permit are complied with. The monitor shall also comply with any other direction or condition imposed by the Deputy Administrator. The monitor shall report in writing and with photographs, if available, any non-compliance with the Permit or labels to the Deputy Administrator within 72 hours of the infraction. The monitor shall also report to the Deputy Administrator in writing as directed by the Deputy Administrator but no later than 30 days following completion of the spray program in each permit year.

Cindy Derkaz, Panel Chair Environmental Appeal Board April 28, 2000

environmental fourth floor 747 fort street appeal …on february 23, 1999, mof published a notice...

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