Nisga'a Tribal Council v. British Columbia (Environmental
Appeal Board)

Between
Nisga'a Tribal Council, petitioner, and
The Environmental Appeal Board, R.W. Kobylnyk, Administrator
of the Pesticide Control Act, and Westar Timber Ltd.,
defendants

[1988] B.C.J. No. 3110
Registry No. A882021
Also reported at:
3 C.E.L.R. (N.S.) 91
32 Admin. L.R. 319

British Columbia Supreme Court
Davies J.

Heard: July 29 and August 2, 1988.
Judgment: August 5, 1988.

        Environmental law — Notice — Adequacy — Administrator of Pesticide Control Act erring in law in giving notice by newspaper of hearing — Interested group outside reach of newspaper having previously requested information about such hearings and suggested alternate method of giving notice — Granting of permit set aside — Hearing constituted in absence of proper notice — Board failed to take into account all relevant evidence — Interpretation Act, R.S.B.C. 1979, c. 206, s. 38 — Judicial Review Procedure Act, R.S.B.C. 1979, c. 209 — Pesticide Control Act, R.S.B.C. 1979, c. 322, s. 6 — Pesticide Control Act Regulation, B.C. Reg. 319/81, ss. 17, 18.

       This was an application for judicial review to quash the decision of the Environmental Appeal Board upholding the issuance of a pesticide use permit. The administrator of the Pesticide Control Act issued a permit to a company to use a pesticide. The company was required to publish a notice of the issuance. This was published in a newspaper where the applicants lived, but they had previously requested information about such applications and suggested a method of giving notice. A hearing was held and the issuance upheld.

       HELD: The appeal was allowed. There had been an error of principle because the residents who could be affected by the use were not given effective notice in accordance with the provisions and the spirit of the Act. Natural justice had been denied. It was immaterial that they had learned of the permit by other means and no prejudice had been shown.

Counsel:

 

D.J. Rosenbloom, and R. Schulman, for the petitioner.
J.E. Gouge and V. Svatek, for the defendants.

 

 1      DAVIES J.:— The petitioners apply under the Judicial Review Procedure Act, c. 209, R.S.B.C. 1979 for the following:

1.

 

 An order quashing a decision of the Environmental Appeal Board No. 87/29, dated May 30, 1988.

 

2.

 

 An order that Pesticide Use Permit No. 221-037-88/90 issued by the respondent R.W. Kobylnyk is invalid, and setting it aside.

 

3.

 

 An order enjoining the respondent Westar Timber Ltd. from applying pesticide pursuant to the Pesticide Use Permit No. 221-037-88/90 until a determination of this petition.

 

4.

 

 A permanent injunction.

 

5.

 

 Costs.

 

 2      The petitioners advise that the grounds for this appeal are as follows:

1.

 

 That the respondents erred in law and violated the principles of natural justice by constituting the hearing in the absence of proper notice.

 

2.

 

 That the administrator under the Pesticide Control Act Dr. R.W. Kobylnyk erred in law in imposing as a condition of licence notice by way of a publication in a newspaper with local distribution.

 

3.

 

 That the Environmental Appeal Board failed to take into account all relevant and material evidence - that is to say the alternative methods of brush control.

 

4.

 

 (a)  That the application for the pesticide use permit was not signed.

 

 

 

     (b)  That the person or persons to apply the pesticide are not known.

 

 

     (c)  That the pesticide use permit authorizes the application of the pesticide "Round-up" while the evidence of the respondent Westar Timber Ltd. at the hearing disclosed that the pesticide "Vision" may be applied rather than "Round-up".

 

 3      Section 6 of the Pesticide Control Act, R.S.B.C. 1979, c. 322, provides as follows:

"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."

 

 4      Sections 17 and 18 of the Regulations under the Pesticide Control Act provide as follows:

"17(1)

 

 A permit shall specify, as may be appropriate and available,

 

 

(a)

 

 the permittee's name and address,

 

(b)

 

 the applicator's name and certificate number,

 

(c)

 

 the location and area where the pesticide is to be used,

 

(d)

 

 the periods of validity of the permit,

 

(e)

 

 the name of the pest or purpose of using the pesticide,

 

(f)

 

 the common or trade name and formulation of the pesticide, and its registration number under the Pest Control Products Act (Canada).

 

(g)

 

 the method and rate of application and total quantity of pesticide to be used, and

 

(h)

 

 the precautionary measures or other terms that are considered necessary by the administrator under section 6 of the Act.

 

 

 

 . . .

 

 

18(2)

 

 On issuing a permit, the administrator shall require as a term of the permit that the permittee comply without delay with one or more of the following:

 

 

(a)

 

 post all or part of the permit or a copy of all or part of the permit, in a conspicuous place where the pesticide is to be used;

 

(b)

 

 publish all or part of the permit in one or more newspapers with local distribution;

 

(c)

 

 publish all or part of the permit in the Gazette;

 

(d)

 

 provide a copy of the permit to, or serve notice on, any person whose rights may be affected by the use of the pesticide authorized by the permit."

 

 5      On March 27, 1987, the respondent Westar Timber Ltd. submitted an application for a permit.  The permit identified a 200-hectare area in the Nass Valley which Westar wanted to treat with the pesticide "Round-up" to control white birch, cottonwood, thimbleberry, rose, aspen and elderberry in an area to be reforested.

 6      A permit was issued on June 29, 1987, which stated in part as follows:

 

 "The pesticide use as described on the attached application may be carried out in accordance with the PESTICIDE CONTROL ACT and subject to the additional conditions listed below:

 

 

A.

 

 Public Notification

 

 

 

 The permittee shall publish all or part of the permit in one or more newspapers with local distribution.  The published notice shall contain the following information:

 

 

(a)

 

 Permit number,

 

(b)

 

 Name, address and telephone number of the permit holder,

 

(c)

 

 Purpose of the pesticide use,

 

(d)

 

 Method of pesticide application,

 

(e)

 

 Location and area of treatment site,

 

(f)

 

 Pesticide common name,

 

(g)

 

 Project commencement and completion dates,

 

(h)

 

 Information on where copies of the permit and map of the treatment area may be examined in detail."

 

 7      Notice of the issuance of the pesticide use permit was given in the Smithers newspaper.  The notice gave the permit number, the name and address but not the telephone number of the permit holder, the purpose of the pesticide use, the method of application, the location of the treatment site, and indicated that the pesticide "Round-up" would be used and that the area would be treated between June 1, 1988, and October 31, 1989.

 8      The petitioner's position is that the notice was not in keeping with the provisions and spirit of the Act and therefore ineffective.  The petitioner argues that the Regulations provide that such information from the permit as directed by the administrator be published "in one or more newspapers with local distribution". Guidance as to the interpretation of this wording is in the Interpretation Act. Section 38 of the Interpretation Act R.S.B.C. 1979, c. 206, provides in part as follows:

 

 "Where an enactment provides that notice shall or may be given by publication in a newspaper published in particular municipality, district, county, jurisdiction, or other place, the provision shall be construed to mean that the notice may be sufficiently given, if no newspaper is published at the time when the notice is to be given in the particular place, by publishing or advertising the notice in a newspaper published in the province, nearest to the place mentioned; . . . "

 

 9      In was conceded that there is no newspaper distributed in the Nass Valley where approximately 5,000 Nisga Indians reside. The centre nearest to the Nass Valley that has a newspaper is Terrace, which is approximately 55 miles from the communities in the Nass Valley. Smithers, on the other hand, is about 150 miles from these communities.  It would seem therefore that the Terrace newspaper should have been selected for purposes of the notice.

 10      However, the respondent's position is that the petitioner learned of the permit even before notice of it was published in the Smithers newspaper and appealed against issuance of the permit.  Therefore, there could be no prejudice to the petitioner and there was no evidence adduced that there was any other person or organization that would have made a presentation opposing the granting of the permit had they been given notice.  In short, the respondents say that the petitioners point only to the technicalities in the procedure, that no prejudice was done to the petitioners and the Courts should concern themselves only with principles involved in such matters.

 11      I agree that the Courts should not interfere with a board's ruling, unless the board has erred on a matter or principle or, more properly, in the exercise of its jurisdiction.  In my judgment there has been an error in principle, and that is, that the residents of the Nass Valley who may be affected by the proposed use of the pesticide by the respondent Westar were not given effective notice in accordance with the provisions and spirit of the Act and therefore denied their rights to natural justice.  The Nass Valley is a remote part of this province.  There are only two communities in the Valley.  Access to the logging camp referred to as "Nass Camp" and the Nisga community of New Aiyansh is by logging road. Communication is difficult.  The Nisga Tribal Council expressed a concern about spraying pesticides in the Valley well before this matter arose.  On February 24, 1986, the Nisga's Tribal Council wrote to the Ministry of the Environment, Pesticide Control Branch, in Victoria, to the attention of Dr. R.W. Kobylnyk, and stated as follows:

 

 "Following my telephone call with Mr. D. Cronin of your office on 24 February 1986, the Nisga's Tribal Council requests copies of all pesticide use permits and a list of all applications for pesticide use within the Nass River Watershed.

 

 

 Please inform us of any subsequent applications for pesticide use affecting the Nass River Watershed, directly through the Nisga's Tribal Council and by posting at public access areas in the Nass Valley communities."

 

 12      This letter clearly indicated that the Nisga's Tribal Council was concerned with any applications for the use of pesticides in the Nass River Watershed and indicated that not only did the council want to be notified but suggested a means of giving notice to the residents of this remote area.

 13      On March 3, 1986, the following letter of reply was sent from the Ministry of the Environment to the Nisga Tribal Council:

 

 "In reply to your letter of February 24th, 1986, I wish to advise you that there have been no applications for pesticide use permits in the Nass River Watershed in 1985 or to this date in 1986.

 

 

 Should any permits be issued in future for pesticide use in the Nass River Watershed, notification of local communities will be required as a permit condition."

 

 14      Apparently, the request by the Nisga Tribal Council for notification and the suggestion as to how notice might be given to the inhabitants of the Nass Valley of permit applications was overlooked.

 15      I must disagree with the contention of the respondents that the petitioner's argument with respect to notice is immaterial in that there is no evidence of prejudice to the petitioner or indeed to any one else.  In Bay Village Shopping Centre Ltd. and Victoria, a decision of the Court of Appeal of this Province, [1973] 1 W.W.R. 634, Robertson J.A. said as follows:

 

 "It will be seen that I have, with respect, disagreed with the view of the learned Judge below, being of the opinion that there was failure to fulfill a statutory prerequisite, that it is immaterial whether any one was prejudiced by the error, and that the Court has no discretion to refuse to quash."

 

 16      The Pesticide Control Appeal Board is empowered to hear an appeal by any person against the action, decision or order of the administrator. An appeal was filed by the petitioner.  A number of grounds were given by the petitioner for the cancellation of the permit.  One of those was notice. The administrator is given a discretion under the Regulations as to how the permittee is to give notice but surely it rests with the board to satisfy itself that the administrator acted responsibly in requiring that effective notice be given.  In his testimony before the board, Dr. Kobylnyk conceded that he left the selection of the newspaper in which the notice was to be published to the discretion of Westar and assumed they would choose a newspaper that had "local distribution".  He further conceded that he was not aware that there were no newspapers distributed within the Nass Valley.  I believe this indicates an indifference as to whether effective notice was given to the residents of the Nass Valley of the proposed spraying.  In my judgment this is a defect that goes beyond a technical defect. It is a breach of natural justice.  The intent of the section is that effective notice be given.

 17      Therefore, for the reasons given, the decision of the Environmental Appeal Board, May 30, 1988, is hereby quashed. Because of my finding that the notice of the pesticide  use permit was not effectively given, the permit cannot stand.  The administrator should therefore reconsider the permit, request amendments if he deems them necessary, and give the permittee directions with respect to how notice is to be given should the pesticide use permit be granted.

 18      There is no need for me to deal with the other grounds raised by the petitioner.

 19      The petitioner shall have its costs.

COULTAS J.

QL Update:  980928
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