Decision Date: July 13, 1999

Panel: Toby Vigod

Keywords: Stay; herbicide; glyphosate; Vision; RJR-MacDonald Inc. v. Canada (Attorney General), aboriginal rights; treaty rights.

This was an appeal by the Fort Nelson First Nation against the March 1999 decision of the Deputy Administrator for the Omineca-Peace, Cariboo and Skeena Regions to grant six Pesticide Use Permits to Slocan Forest Products Ltd. for use of the herbicide glyphosate (“Vision”) on various cutblocks scattered throughout the Fort Nelson area. The First Nation expressed concerns over the potential harmful effects of Vision on fish and wildlife that would adversely affect the ability of its members to fish trap and hunt. The First Nation claimed that Treaty No. 8 protects the right of its members to “pursue their usual vocations of hunting, trapping, and fishing throughout the tract surrendered…”. The First Nation also submitted that it was not properly and adequately consulted to ensure that its treaty rights would not be unjustifiably infringed by the proposed herbicide application. The First Nation requested a stay of the permit pending the appeal on the merits. The Board applied the three-part test set out in RJR-MacDonald Inc. v. Canada to determine whether to issue a stay in this case. The Board found that the Appellants’ concerns were neither frivolous nor vexatious and that there was thus a serious issue to be tried, that there was a possibility of adverse effects on wildlife which in turn had the potential to adversely affect aboriginal treaty rights, and that it was possible that the resulting harm could be irreparable. In weighing the balance of convenience, the Board noted that it was likely that 4 of the 6 areas at issue were less remote from native communities and therefore more likely to be used by members of the First Nation for purposes relating to their treaty rights. The Board found that the potential harm to the First Nation of spraying in the less remote areas outweighed the potential harm to Slocan of delaying spraying until a decision on the merits of the appeal was rendered. The Board granted a stay of the 4 permits that authorized spraying in the more “high use” areas.