Decision Date: August 27, 1999

Panel: Toby Vigod

Keywords: Pesticide Control Act – s. 15(8); stay application; pesticide use permits; silvicultural herbicide; glyphosate; “Vision”; First Nations; treaty rights; balance of convenience.

This was an application by the Fort Nelson First Nation for a stay of two pesticide use permits issued to the Ministry of Forests (“MoF”) by a Deputy Administrator of the Pesticide Control Act. The First Nation was seeking a stay pending the Board’s decision on the merits of its appeal against the decision to issue the permits, which authorized the application of the herbicide glyphosate (“Vision”) on 16 cutblocks located in northeastern British Columbia.

MoF planned to use Vision on the cutblocks to clear away brush vegetation competing with planted coniferous seedlings. The permits authorized treatment on approximately 364 hectares of forestland within the area subject to Treaty No. 8. MoF submitted that of the 16 cutblocks designated for spraying, 13 were “urgent priority”, such that the conifer seedlings on those cutblocks would die if the areas were not treated before the end of August 1999.

The First Nation raised concerns over the potential harmful effects of Vision on wildlife habitat, food and water supplies, and the treaty rights of its members to hunt, fish and trap. It also submitted that it was not properly and adequately consulted prior to the issuance of the permits, and that, in any event, it did not have sufficient resources to enable it to properly assess and protect its interests in the natural resources within the Treaty lands.

The Board applied the test for stay applications as set out in the decision of the Supreme Court of Canada in RJR Macdonald Inc. v. Canada (1994), which requires that the applicant demonstrate (1) that there is a serious issue be tried, (2) that irreparable harm will result if the stay is not granted, and (3) that the balance of convenience favours granting the stay.

The Board found that the First Nation met the three tests in its submissions. With regard to the balance of convenience test, and in weighing the potential harm to the First Nation if spraying were to take place, the Board found that all of the cutblocks were relatively close to (and accessible from) the main Reserve and other traditional use areas of the First Nation. The application for a stay of the permits was granted pending a final decision from the Board on the merits of the appeal.