Decision Date: July 23, 2002

Panel: Alan Andison

Keywords: Pesticide Control Act – ss. 1 definition of “adverse effect”, 2(1)(a), 6(3), 12(2); 114957 Canada Ltee. (Spraytech, Societe d’arrosage) v. Hudson (Town), [2001] S.C.J. 42; Glowon; monosodium methane arsenate; precautionary principle

The Appellant appealed the decision of the Deputy Administrator to issue a pesticide use permit authorizing the use of monosodium methane arsenate (“MSMA”), sold under the trade name “Glowon”, to control spruce bark beetle and mountain pine beetle. The Board found that 114957 Canada Ltee. (Spraytech, Societe d’arrosage) v. Hudson (Town), [2001] S.C.J. 42 (“Spraytech“) does not impose an obligation to interpret Canadian environmental statutes, including the Pesticide Control Act (the “Act“), consistently with the precautionary principle, as the Court did not find that the precautionary principle is clearly a principle of customary international law. The Board also found that there was an absence of clear direction on the meaning of the “precautionary principle”.

The Board found that any obligation on the part of the administrator and the Board to consider the precautionary principle as part of the legal test, applied when considering whether the use of a pesticide will cause an adverse effect, must be clearly expressed in the language of the Act. The Board found that there was no clear indication in the statutory provisions that the legislature intended the Act or the Regulation to reflect the precautionary principle. Therefore, the Board concluded that there was no basis for concluding that the administrator and the Board are obligated to consider or apply the precautionary principle in applying the legal test. The Board noted, however, that the legal test does, in some respects, take into account the “precautionary approach” as defined in the Rio Declaration.

The Board also found that the legal test as set out in Canadian Earthcare Society v. Environmental Appeal Board (1988), 3 C.E.L.R. (N.S.) 55 (B.C.C.A.) and adopted in Islands Protection Society v. British Columbia Environmental Appeal Board (1988), 3 C.E.L.R. (N.S.) 185 (B.C.S.C.) is consistent with the findings in Spraytech with regard to the function of the federal Pest Control Products Act. The Board found that the two-step test does not lead the administrator or the Board to consider a pesticide’s federal registration in a manner that fetters their discretion under the Act.

The Board found that the volume of MSMA allowed under the permit was excessive and could lead to harmful results. The Board found that the total volume of MSMA approved for use under the permit should be reduced by the equivalent of 57,500 trees, or approximately 38.3%. Subject to these amendments, the Board was satisfied that the application of MSMA under the permit would not cause an unreasonable adverse affect.

Accordingly, the Board upheld the permit, subject to the amendments ordered by the Board.

The appeal was dismissed.