Decision Date: August 31, 1999

Panel: Toby Vigod

Keywords: Pesticide Control Act – ss. 6(1), 6(3), 12(2), 15(7)(c); Environment Management Act – ss. 11(2), 11(13)(d); Constitution Act – s. 35; pesticide use permits; herbicide; glyphosate; “Vision”; aboriginal rights and title; treaty rights; jurisdiction of the Board.

This was a preliminary application on the question of the Board’s jurisdiction with respect to constitutional issues relating to aboriginal rights and title and to treaty rights. A Deputy Administrator under the Pesticide Control Act challenged the Board’s authority to hear matters relating to these issues.

The challenge arose in the context of an appeal by the Fort Nelson First Nation against the March 1999 decision of the Deputy Administrator to grant six pesticide use permits to Slocan Forest Products Ltd. The permits authorized the use of the herbicide glyphosate (“Vision”) on various cutblocks scattered throughout the Fort Nelson area in northeastern B.C. The purpose of the spraying was to clear deciduous growth that was competing with planted and naturally regenerating young conifer trees. The First Nation expressed concerns over the potential harmful effects of Vision on fish, wildlife and food plants that would adversely affect the ability of its members to pursue their rights under Treaty No. 8 to fish, hunt and trap in the treaty area. The First Nation was seeking an order from the Board rescinding all of the permits.

On August 12, 1999, the B.C. Court of Appeal rendered its decision in Halfway River First Nation v. B.C., which dealt with matters relevant to the preliminary application before the Board. The Board requested each of the parties to make written submissions with respect to how the Halfway River decision might affect the Board’s jurisdiction to decide constitutional questions.

Upon consideration of the submissions of the parties, the decision of the Court of Appeal in Halfway River, and relevant constitutional case law, the Board found that if the Board’s enabling legislation gives it the authority to consider general questions of law, then the Board must also have the concomitant power to determine the constitutionality of the law that it applies. The Board found therefore that the question of the preliminary application was whether the Board’s enabling legislation authorizes it to consider general questions of law.

The Board found that Section 11(13)(d) of the Environment Management Act appears to bestow an express authority on the Board to consider questions of law because, if a party may make submissions on law, it is logical that the Board may decide issues of law. The Board found that this jurisdiction includes questions of common law aboriginal rights and constitutional questions such as those involving aboriginal treaty rights.

The Board also found that the Halfway River decision makes it clear that the Administrator or Deputy Administrator has the authority, and indeed the duty, to consider constitutional questions. By virtue of the Board’s enabling legislation, the Board therefore also has this authority.

The Board found further that the “pragmatic and functional analysis” for determining the jurisdiction of administrative tribunals, as set out in the relevant constitutional case law, supports the Board’s jurisdiction to consider questions of law. The Board found that, if Section 11(13) of the Environment Management Act does not expressly bestow upon the Board the jurisdiction to decide questions of law, then the language in the provision would lend support to an implied jurisdiction to do so.

The Board also agreed with the submissions of the First Nation and Slocan Forest Products that questions of aboriginal rights are questions of fact, and that since the Board routinely makes findings on complex factual issues, there is no reason why it cannot determine the issue raised in the appeal brought by the First Nation.

The Board found that it has jurisdiction to determine constitutional issues, including questions of aboriginal rights and title, and treaty rights. The application was denied.