CA 008290

Vancouver Registry

Court of Appeal

Before:

BETWEEN:

CANADIAN EARTHCARE SOCIETY

PETITIONER

(APPELLANT)

AND:

ENVIRONMENTAL APPEAL BOARD

RESPONDENT

(RESPONDENT)

TAGGART, J.A.: This is an appeal from a judgment dismissing the application brought under the provisions of the Judicial Review Procedure Act to quash the decision of the Environmental Appeal Board, a decision upholding the granting of a pesticide use permit to the Ministry of Forests. The Board also granted a one year extension of the time within which the permit would be operable.

The appellant Society seeks a reversal of the decision of the chamber judge and a referral back to the Appeal Board in order that it may deal with the appeal on the appropriate basis.

The background is that on May 12, 1986, the administrator appointed under the provisions of the Pesticide Control Act, R.S.B.C. 1979, Chap. 322, issued a use permit to the Ministry of Forests, in Penticton, British Columbia. The permit permitted the Ministry to use a pesticide named Roundup, the active ingredient in which is glyphosate, to kill sitka alder in the Mission Creek and Belgo Creek areas, in the Okanagan Valley. The purpose of killing the alder and other brush was to promote the growth of pine trees. The latter are unaffected by the herbicide.

The Society filed an appeal to the Appeal Board from the granting of the permit. The appeal was heard on November 26 and 27, 1986, in Kelowna.

At the hearing the Society, called evidence as to the toxic nature of Roundup and the effects it has on the environment. They also called evidence with respect to alternative methods of controlling the alder trees and the other brush sought to be eliminated in the area. Included in the evidence was evidence with respect to silvicultural practices which could be used to control the brush and alder.

The Ministry also called evidence, primarily with respect to the regulatory procedures for registration of pesticides and relating to the policies and procedures followed by the Ministry in obtaining the permit.

Having heard that evidence the Board also heard an application on the part of the Ministry to extend the effect of the permit for an additional year. No doubt that application was made because the permit extends over a three year period. When granted it permitted use of the pesticide Roundup during 1986, 1987 and 1988. Because of the inevitable delay occasioned by the appeal itself the year 1986 was lost, and consequently the Ministry felt it was necessary to have an additional year in order that its program might be fully implemented.

The Board reserved its decision and on April 7, 1987, gave written reasons, holding that the question of viable alternatives to the use of the pesticide were not considered, since they were outside the Board's jurisdiction. The Board also indicated its unwillingness to consider evidence with respect to the toxicity of the pesticide Roundup and to consider alternatives to its use, including silvicultural practices. That was because the Board assumed that it lacked jurisdiction to enter on that enquiry.

The Society brought an application for judicial review of the Board's decision which resulted in the judgment of the chambers judge which is now under appeal. Three issues were argued by the Society.

The first issue with which I will deal is put this way in the appellant's factum:

"1. Did the Environmental Appeal Board Commit an error of jurisdiction or of law by refusing to properly assess the evidence of toxicology, or in assuming a Federally registered pesticide to be generally safe?"

Ground 2 was put this way:

"Did the Environmental Appeal Board commit an error of jurisdiction or of law by refusing to assess the evidence of silvicultural practices and/or the evidence of alternative methods?"

Ground 3:

"Did the Environmental Appeal Board exceed its jurisdiction by granting an extension of the permit for one year on the application of the respondent."

Before dealing with those three issues I will quote what I believe to be the relevant provisions of the Pesticide Control Act. I refer first to s.6, which reads in this way:

"6. Subject to the regulations, a person shall not apply a pesticide to a body of water, or an area of land unless

(a) he has applied for a permit from the administrator to do so and the administrator, on being satisfied that the pesticide application will not cause an unreasonable adverse effect, has granted the permit; and

(b) he applies the pesticide in accordance with the terms of the permit."

The term "adverse effect" is defined in this way in s.1 of the Act:

"'Adverse effect' means an effect that results in. damage to man or the environment:"

On the question of toxicity, which is the basis for ground 1 argued by the appellant, the Board said this:

"The Board assumes that the registration process for a pesticide and compliance with its authorized method of use generally provides assurance of safety."

(my emphasis)

The chambers judge in his reasons for judgment supported the Board’s approach. He dealt first with the Federal legislation with respect to the registration of pesticides. He said that legislation requires registration before pesticides may be used. It also provides for use only in accordance with the method of use described by the applicant for registration.

The judge went on to point out that there is no similar provisions in the British Columbia legislation. The judge then said:

"Common sense dictates that the fact that a federally registered pesticide that has undergone extensive testing must have some prohibitive value. I have concluded that the Board did not commit a jurisdictional error by assuming a federally registered pesticide to be generally safe. It is important to bear in mind that the Board did not state that a federally registered pesticide could never cause an unreasonable adverse effect. The Board was willing to hear evidence on toxicity to the extent that the evidence showed that the specific site in question prevented safe application of the pesticide. They further heard evidence whether the proposed pesticide use was contrary to registration intent and restrictions or that the permit holder was unable to apply the pesticide safely."

I agree with that. It is a correct interpretation, in my view, of what is inherent in the quotation I have made from the Board's reference to the toxicity issue. It follows that I would reject the first ground of appeal advanced by the appellant.

The second ground of appeal relates to the failure of the Board to consider alternative methods of controlling alder and brush in a pine forest. On this question the Board said:

"The Board found no evidence that the proper exercise of this permit would unreasonably endanger fish or enter well-water in amounts significant to human health. Certainly, wildlife will be exposed to it, and some temporary loss of habitat may occur, but not, in the Board's view, so as to cause an unreasonable adverse effect. The behaviour of glyphosate is predictable enough to assess the likelihood of its causing adverse effects. The question of viable alternatives was not considered since these are outside of the Board's jurisdiction."

The following paragraph in the Board's decision ends with this sentence:

"Alternative methods and silvicultural practices are outside the Board’s jurisdiction."

The chambers judge concluded that the Board was in error in declining jurisdiction with respect to alternative methods of control and including silvicultural practices. He stated the issue on this aspect in this way:

"Does the Environmental Appeal Board have jurisdiction to decline consideration of alternative treatment methods and silvicultural practices once it is satisfied that the permit under review would not have an unreasonable adverse effect on the environment?"

With respect to this the judge said in his reasons:

"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.

The Board erred in holding that the evidence of silvicultural practices and alternative methods was outside its jurisdiction. However, the issue of silvicultural practices and alternative methods would only, be relevant to determine the reasonableness of any adverse effect. If the Board found no adverse effect there would be no need for the Board to hear evidence on silvicultural practices and alternative methods."

So far, I agree with the chambers judge. I think the analysis which the judge made is a proper one and the statement of the issue is also correct. However, immediately following the passage which I set out above appears this sentence:

"On the facts of the case at hand, the Board found no evidence of any adverse effect."

It is to be noted that the judge makes no reference to the word "unreasonable" coupled, as I think it must be, with the words "adverse effect". That is the language of s. 6 of the statute and I think it is in that context that one must consider this second ground of appeal.

Returning for a moment to the reasons of the Board, it is apparent to me from the first paragraph which I have quoted that the Board considered that while there were adverse effects on wildlife and hence, in my view, on the environment, it did not consider those adverse effects to be unreasonable.

Applying the analysis made by the chambers judge, which I have approved of it seems to me it was error on the part of the Board to eliminate from its consideration a viable alternative of control, including silvicultural methods. The result is that, in my view, the trial judge erred in concluding that there was no evidence of any adverse effect. It seems to me inherent in the reasons of the Board that they found adverse effects. They went on, however, to say, as the language of the Act, in my view, requires them to do, that such adverse effect as there was was not unreasonable. However, they eliminated from their consideration in reaching that conclusion the possible viable alternatives to the use of the pesticide Roundup.

The result is that on this ground I think the appeal must be allowed and the matter remitted to the Appeal Board in order that it may approach the question of unreasonable adverse effect taking into consideration the viable alternatives as disclosed by the evidence.

I will now turn to ground 3. Strictly speaking, having regard to the conclusion on ground 2 it is not necessary to deal with this ground. However, it seems to me appropriate to say something about the question of the extension of time as granted in this case, since it may be of some assistance to the Appeal Board in future cases.

The scheme of the Act, is to permit an applicant to apply to the administrator for a permit. In this case the Ministry sought a permit extending over a period of three years. Once the permit is granted interested parties or affected parties may appeal to the Appeal Board. The process is one which requires time. In this case the process virtually eliminated the use of the permit by the Ministry during the first year of its term.

Unfortunately, the Ministry did not give notice that it would seek an extension of time for an additional year. Had it done so, that aspect of the matter could have been considered during the course of the proceedings before the Appeal Board. It was only at the very end of the proceedings, without notice, that the question of extension was raised. It seems to me it was inappropriate for the Board to deal with the matter in that way. In my view it is incumbent on a permit holder, or in some circumstances perhaps on the Appeal Board itself, to insure that parties affected by the appellate process receive reasonable notice of an application for extension of time. How that aspect of the matter should be dealt with is a matter which should be left to the Board, always recognizing that it is necessary that affected parties be given reasonable notice of such an application.

For the foregoing reasons, and particularly those given in relation to ground 2, I would allow the appeal, set aside the order of the chambers judge and refer the matter back to the Appeal Board to be dealt with in accordance with these reasons.

HINKSON, J.A.: I agree.

WALLACE, J.A. I agree with my brother Taggart's reasons, but I would make the following observations: since this appeal concerns the adverse consequences upon the environment, I consider it appropriate to draw counsel's attention to the effect on the environment and the forest resources of the province as a consequence of the provision in their case books to two authorities, 73 and 110 pages respectively; the duplicate reproductions of the Pest Control Act and all regulations; reproduction of some thirty other authorities to which reference was made to only two or three; and the absence of a common book of authorities that has been directed to be filed by this court for some time. I suggest that counsel restrict the Xeroxing of the case to which they wish to make reference to the headnote and the two or three pages which contain the principles upon which they rely, unless there is a case which they wish to analyze in some depth. As for the statute and regulations it should not be too difficult to restrict the Xeroxing to the section of the Act or regulations which counsel consider pertinent and necessary for the court's consideration.

Accordingly, I would deny appellant the costs of the preparation of the casebook of authorities.

TAGGART, J.A.: I agree with those remarks.

HINKSON, J.A.: I agree as well.