Decision Date: September 13 & 16, 1999

Panel: Judith Lee

Keywords: pesticide use permit; herbicide; glyphosate; “Vision”; reconsideration of stay decision; RJR-MacDonald Inc. v. Canada (Attorney General).

This decision involved the reconsideration of an earlier stay decision (Appeal No. 99-PES-09(a)). Shortly after the stay decision was issued, the Tsawataineuk Band Council requested, and was granted, Third Party status in the appeal. The Board granted an adjournment of the hearing with the consequence that the appeal would not be completed before the pesticide application season ended. The Board therefore offered to reconsider its stay decision with respect to the 9 cutblocks described by Interfor as having “a high likelihood of failure” to meet regeneration deadlines if the 1999 treatment window was missed.

Interfor asked that the stay be lifted in relation to the priority cutblocks, Raincoast supported a continuation of the stay, and the Band Council asked that there be no herbicide spraying within the priority cutblocks.

The Board found that there were serious issues to be heard in the appeal, and that new information had been presented that raised new concerns about the possible danger of the pesticide “Vision” to fish, wildlife, and aboriginal rights. No new information was presented to refute the Board’s original finding that irreparable harm to the environment and to the interests of Raincoast could result if the stay was not issued.

With regard to the issue of the balance of convenience, the Board found that it was required to weigh the potential harm to the interests of Raincoast regarding fish and wildlife if the stay were not maintained, against the potential harm to Interfor if its crop trees were damaged as a result of maintaining the stay. The Board found that there was a potential for harm in either case, and proceeded to examine the balance of convenience with regard to each of the priority cutblocks. The Board concluded that the stay should be lifted for three of the priority cutblocks.

One day after this decision was issued, a typographical error in Interfor’s submissions which concerned the identification of one of the priority cutblocks was brought to the attention of the Board. The Board considered this information and issued an amendment to the decision two days later. In the amendment, the Board noted factual errors that arose from the typographical error and accordingly replaced three paragraphs in the decision that concerned the disposition of two of the cutblocks with regard to the stay. The remainder of the decision was affirmed.