More pesty off-loading: proposed law helps private foresters shirk duties

It came to our attention this week that the government’s sudden drive to bring its new Integrated Pest Management Act into force is concealing yet another attempt by both the government and the logging industry to avoid their obligations to First Nations. Unless the government acts responsibly and heeds the comments it has received during its comment period about the Act and its regulations, we may need another court judgement like September’s Haida case to keep the deregulation in line.

The Act itself is flawed enough, and deserves some consideration, before we turn to the issue of consultation. In 2003, the government passed the Integrated Pest Management Act, which is to replace the Pesticide Control Act. The Act is a good idea, adopting a new approach to the management of pests and pesticides. The text of the Act raised some concerns among community and environmental watchdogs, though. As West Coast Environmental Law wrote in their backgrounder on the new bill, the Act omits the principles behind integrated pest management, and seemed to be designed to remove government from an active role in approving pesticide use.

It appeared to be yet another example of the offloading of decision-making that has been characteristic of this government, from its handling of land tenure applications (asking applicants to do environmental and health research) to the new forestry laws that allow companies to plan their own operations without direct government oversight, and that provide very loose “results” that must be achieved by companies.

This type of hands-off, results-based regime depends on clear, strict standards and active government review and inspections. Instead we’ve had fuzzy standards, full of loopholes, and a bureaucracy cut back so drastically that there is little chance of discovery of violations of those standards.

Having elicited constructive comments such as those from West Coast Environmental Law, the new pest Act then sat on the books, approved in the Legislature but not yet brought into force. The delay? The Act requires regulations that set out the details of the new system, and set standards for pesticide use.

Those regulations were released recently, with a short time period for public comment. That period ends on Friday, October 22. Rather than correcting the problems identified with the Act, the regulations and their accompanying discussion paper confirm the worst fears of those who saw the flaws in the Act.

For many pesticides, there are no requirements at all: no need for a formal plan, no government approval, no public consultation. Among those excluded from regulation are classes of chemicals, such as those for wood treatment, that include toxic substances.

For certain pesticides deemed to pose a high risk, government permits are required, but the permitting process is not stringent.

Some pesticides that are not deemed to pose a high risk are subject to regulation, if they are to be used by certain parties, such as forest companies. But the companies merely need to create a Pest Management Plan and notify government they’ve done so. Unless the Ministry of Water, Land and Air Protection specifically requests to see a plan, the government doesn’t look at them.

Where a Pest Management Plan is required, there are some loose standards, easy to manipulate and hard for government to enforce, in the event they do learn of violations. And there is some requirement for public consultation, which the company carries out on its own.

But some groups are seeking even more. This week, we learned that private forest land owners association (PFLO) had convinced the government to exempt them from the need for Pest Management Plans for private lands. Instead, for pesticides regulated by the Act, they would only need to obtain an even less onerous pesticide licence.

The major difference? Unlike other loggers, private land owners would not have to “prepare a draft PMP [Pest Management Plan], advertise in newspapers, consult with First Nations and the public who may potentially be significantly impacted and adjust the PMP as may be required” (page 34 of the government’s Intentions Paper).

This change has arisen in the wake of a recent Environmental Appeal Board decision favouring the Cowichan Tribes. In the decision, the Board affirmed that First Nations can have rights on private land, and therefore a duty of consultation may exist. Private land owners are trying to avoid this duty. (Read the decision.)

The change adds insult to the injury the Act and its regulations already cause (or will cause, if they come into force as is). The off-loading to industry of consultation about and regulation of pesticides is already bad for communities and First Nations. It makes it more difficult for them to learn what is being done to local lands, and to raise concerns before it happens.

This particular change is almost amusing, since it clearly runs afoul of the law, and can be challenged. (We have just seen the courts rebuff industry’s attempt to use new forestry legislation to transfer logging tenures without consulting First Nations.) But it is difficult to mount challenges of such laws without a specific set of facts to bring before the court. Some challenges of the new forestry laws will soon be brought to court, but it has taken a long time to get them ready. The government and industry know this. They seem to have decided that, despite the fact Aboriginal law clearly overrides their legislation to avoid consultation, they can keep legislating loopholes, and force First Nations to go to the expense of closing them through the courts.

So it appears that further court battles will be required, before these regressive changes are curbed. You can make a difference, though, by writing to or calling the Ministry of Water, Land and Air Protection to register your objections. The greater the public awareness of the subterfuge, the greater the chance the government will hesitate before pushing forward with more such changes.

You can submit concerns to government through its response forum (though the official deadline is October 22, the government may take note if submissions continue to come in).

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