Decision Date: April 8, 2004

Panel: Alan Andison

Keywords:  Pesticide Control Act – s. 6, 12; Pesticide Control Act Regulation – s. 16, 18; West Nile virus; pesticide use permit; honeybee; malathion; pyrethins; synthetic pyrethoids

Robert Stacey, on behalf of the Cowichan Beekeepers, and Stan Reist, on behalf of the Nanaimo Beekeepers Association (the “Appellants”), appealed the decision of the Administrator, Pesticide Control Act, to issue a pesticide use permit.  The permit authorized the application of pesticides for the purpose of controlling mosquitoes in areas of British Columbia where there was a risk to human health from the West Nile virus.  The Appellants asked the Board to remove from the Permit those pesticides that target adult mosquitoes (adulticides), or in the alternative, to add various conditions to the permit to address their concerns.

The issues in the appeal were whether the application of adulticides, as currently authorized by the permit, created an “unreasonable adverse effect” and should be removed from the permit, whether the permit should be amended to include additional conditions, and whether there has been, and will continue to be, inadequate public consultation in relation to the treatments authorized by the Permit.

With regard to the first issue, the Board found that the Appellants had established that the application of adulticides authorized in the permit may have an “adverse effect” on honeybee populations, which would result in damage to the environment.  The Board determined, however, that the potential adverse effect was not unreasonable.  Specifically, the Board found that the adverse effect to honeybees did not outweigh the intended benefit to the human population in British Columbia, and the permit set out a measured response based on the level of risk to the population.  Nonetheless, the Board ordered that the permit be amended to limit the application of adulticides to the hours between dusk and dawn.  The Board determined that the amendment would remove the unnecessary risk of an adverse effect to honeybees, because mosquitoes are most active at night and honeybees are most active during the day.

Regarding the second issue, the Board found there was no need to amend the permit to include additional restrictions on pesticide use.  The Board found that the permit was clear in describing the permitted pesticide control products, as well as the terms of activation and triggering of spraying.  Furthermore, the Board held that it did not have the power to amend legislation, as requested by the Appellants.

Finally, the Board determined that the permit provided for sufficient public notification and consultation prior to treatment.  The Board determined that the Appellants’ proposed amendment requiring the permit holder to publish notice of intended treatments 30 days before they commenced was not reasonable.  The Board found that the permit was designed to address emergency situations and the proposed amendment would create time restrictions that may disrupt the effectiveness of the treatments.

The appeals were allowed, in part.