Decision Date: July 22, 1999

Panel: Toby Vigod

Keywords: stay; Vision; Release; RJR-MacDonald Inc. v. Canada (Attorney General); forest blocks; coniferous seedlings;

This was an appeal by Mr. McMahon, the Forest Society and the Eco Centre (the “Appellants”) from the May 20, 1999 decision of the Deputy Administrator to issue a Pesticide Use Permit to the Ministry of Forests to treat regeneration sites around river valleys in the Kootenay Lake Forest District. The treatment areas had been burned by wildfire, in 1985, and planted and manually brushed several times since. In many of the areas, competition plants are re-invading and threatening to overtop the young coniferous trees. The Permit allows the MOF to use Vision and Release to control competing vegetation.

The Appellants requested a stay of the Permit pending a decision of the Board on the merits of the appeal. The Board applied the usual three-step test to determine whether to issue a stay. The Board found that the Appellants raised serious issues to be tried concerning the potential for harm to the environment and human health arising from the use of Vision and Release under the Permit. The Ministry of Forests volunteered to delay a majority of the site preparation portions of the Permit until the Board hears the appeal.

On the question of irreparable harm, the Board found that the Appellants failed to show that they would suffer irreparable harm if the Permit was used on a limited basis prior to a final disposition of the appeal on the merits. The Board found that adequate safeguards had been built into the Permit, that limited application of herbicides would be allowed in the interim and that there was a significant distance of the sites from the populated areas.

Although the Board was not required to consider the third step of the test, the balance of convenience, the Board noted that the Appellants have not established that the potential for harm associated with herbicide application according to the Permit outweighs that harm arising from loss of tree growth and increased inconvenience and expense to the Ministry of Forests. The Board refused to issue a stay regarding the limited herbicide applications for 1999, but given that the Ministry of Forests volunteered to delay a majority of the site preparation portions of the Permit, the Board ordered that the Permit be stayed in regard to these activities. The application for a stay was allowed in part.