Nanaimo,
Duncan
and District Labour Council v. British
Columbia (Environmental Appeal
Board)
RE: IN THE MATTER OF
the decision rendered August 26, 1982 by
The Environmental Appeal Board pursuant to The
Pesticide
Control Act, R.S.B.C. 1979, C. 322 and The Environmental
Management Act, S.B.C. 1981, C. 14
Between
Nanaimo, Duncan and District Labour Council,, Village
of Lake
Cowichan et al., petitioners, and
Environmental Appeal Board and Canadian Pacific Ltd.,
respondents
[1983] B.C.J. No. 729
Nanaimo Registry No. SC4717
British Columbia Supreme Court
Nanaimo, British Columbia
(In Chambers)
Locke J.
Heard: March 10 and 11, 1983.
Judgment: filed April 8, 1983.
(5 pp.)
[Quicklaw note: Supplementary reasons for judgment were released June 3, 1983. See [1983] B.C.J. No. 1846.]
Counsel:
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Kim C. Roberts, for the petitioners. |
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¶ 1 LOCKE J.:— The appellants say that if the notice had indicated that times other than July 1-July 31, 1982 would be considered they would have put forward a different case.
¶ 2 It is noted that in this permit finally granted, in its comments the Board said:--
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"3) |
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It is the opinion of the Board, that the bulk of the herbicide treatment should take place in March or April, and certainly not later than June of 1983, in order to gain maximum efficiency from the application. ..." |
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¶ 3 There were requests by some petitioners/appellants for extensions of the permit. While a short one was granted, in a scientific matter such as this I do not consider it of sufficient time to prepare or (more seriously) perhaps produce technical witnesses in view of the existing evidence of different seasonal effects on application. It is a fact pattern which probably would not often arise.
¶ 4 I may say I can hardly fault the Board in one sense for not granting an adjournment: by that time they were dealing with loud demands for legal interpretations or opinions in writing attacks on their procedure, and new applications for extensions of the permit to other years: and at the same time, some of the petitioning appellants were proving surprisingly adept at discussing seasonal variations. So the Board decided to press on and indeed did receive a very considerable body of evidence on seasonality which it seems to me they very obviously considered in reaching their final conclusion. However, under the circumstances, and though a matter of Board discretion, I do not think the appellants were given sufficient further time and the Board's exercise of this power was not judicially exercised.
¶ 5 I note the care the Board extended in making its decision extending to the examination of maps, making details of exclusions, and even walking segments of the right-of-way. Nevertheless, there might be further evidence available from the appellants or witnesses called for them which would cause them to modify their opinion in some way, particularly as to the effect upon watercourses; that would be a matter for the Board to consider.
¶ 6 In the result, I propose to follow the procedure adopted by Mr. Justice Macfarlane in the Warnock Hersey case when he remitted the permits to the Board for further consideration, which I do on one point alone: to hear evidence from any petitioner, who might wish to give or present further evidence concerning the application of the pesticide at periods other than those for which notice was given; to consider such evidence and hear argument on it, and, to use the words of the Act, to then make any "appropriate" order.
¶ 7 I reproduce a paragraph from the Warnock Hersey case:--
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"The evidence which has already been taken may be referred to and relied upon by the Board on the reconsideration of this issue, but for the sake of clarity the permit holder shall, at the outset of the rehearing, size the evidence already given upon which it relies, and similarly the petitioners shall summarize the evidence, already given and upon which they rely, on the issue. The permit holder can then call any new evidence on the question, followed by the introduction of such further evidence as the petitioners wish to call. The procedure is in the control of the Board, who will notify the parties if there is to be any change in the general procedure adopted during the earlier hearing." |
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¶ 8 I have limited the issue and I consider that the matter should be dealt with expeditiously. I say the hearing should proceed not later than April 25, 1983, the Board to notify all concerned parties immediately by sending them a copy of this memorandum of judgment. This can be done by sending it to all counsel who appeared. I repeat, it must be clearly understood that this is not a forum for the re-argument of an entire case which has already been so thoroughly canvassed by so many, nor is it to be an opportunity to repeat evidence the Board has already heard: it is to be, if anything, relevant new or additional evidence and argument.
¶ 9 In the meantime, I suspend the operation of the permit until the above has taken place and the Board has given a decision.
¶ 10 I regard such decision as merely supplementary to the one under appeal. If any party wishes to appeal from any new or modified decision, I consider it to be an extension of the present proceedings and the matter should be brought before me upon two clear days' notice when I will either hear the matter or set a very early appropriate date.
¶ 11 This is a memorandum judgment only and further reasons will be given at a later date.
LOCKE J.
QL Update: 970725
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