Decision Date: April 8, 1999

Panel: Toby Vigod, Dr. Robert Cameron, Helmet Klughammer

Keywords: Pesticide Control Act – s. 6; Pesticide Control Act Regulation – s. 16; Canadian Earthcare Society v. EAB; Islands Protection Society v. B.C. EAB; glyphosate; Roundup; triclopyr; Garlon 4; DRASTIC pesticide model; partition coefficient; B.C. Environment Handbook for Pesticide Applicators and Dispensers

The City of Parksville, Regional District of Nanaimo, Cowichan Valley Regional District, and several individuals (“the Appellants”) appealed a decision of the Deputy Administrator to issue a Pesticide Use Permit to CP Rail, for spraying herbicides on certain railway tracks on Vancouver Island. Their grounds for appeal involved issues of adverse effect to human health or the environment, availability of alternative methods of vegetation control, and adequacy of notification and consultation. The Appellants sought an order that the Permit be cancelled. The appeal was heard together with CP Rail’s appeal of the Permit on other grounds [see 98-PES-08(b)].

Adopting the test established in the case law, the Board found that, to be successful, the Appellants needed to show that the proposed herbicide application would cause an unreasonable adverse effect to human health or the environment. The Board found that the existence of aquifers in the region, and the fact that a large population relied on groundwater for drinking water, warranted a precautionary approach to the application of the herbicides. Due in part to its conclusion that any glyphosate that got into the ballast would be bound up by fine soil particles, the Board had a reasonable level of confidence that drinking water supplies would not be adversely affected by the proposed spraying of Roundup, and also found that the 10 metre pesticide free zone (“PFZ”) was an adequate safeguard to protect aquatic life. Similarly, the Board found that the use of Garlon 4 would not cause an adverse impact on human health and the environment. However, the Board made several amendments to the Permit, including requiring a 100 metre PFZ from water intakes and domestic wells for mixing and loading of the herbicides, extending the PFZ for Roundup where the general 10 metre PFZ had been relaxed, requiring that no herbicide be applied to blackberry or raspberry plants between the months of April and September, and requiring that the CP Rail consult with Parks officials to determine if portions of the track going through provincial parks should be sprayed. The Board also found that buffer zones did not need to be specified in the Permit, reduced the treatment area and total quantity allowed for Roundup, and recommended that the Ministry of Environment, Lands & Parks (“MELP”) give the Permit priority for monitoring.

Given that the steam machine previously used by CP Rail did not work and that it had not been effective in removing vegetation cover, the Board found that the Appellants had not established that steam was a viable alternative to herbicide application. The Board also found that adequate notification had occurred, but recommended that MELP amend the Pesticide Control Act Regulation to require that notification of application of major pesticide use permits be given to municipalities in the areas affected by the proposed spraying. The Panel found that any aboriginal rights to harvest berries along the railway, should they exist, would not be subject to an unreasonable adverse impact.

The Panel upheld the Permit subject to several amendments and referred it back to the Deputy Administrator with directions. The appeal was dismissed.