Province of Ministry of ENVIRONMENTAL APPEAL BOARD Environment and Parks Victoria British Columbia V8V 1X5

APPEAL NO. 86/20 PES

JUDGEMENT:

In the appeal of the Tribal Council against Pesticide Use Permit No. 102-410-86/88, issued to the B.C. Minister of Transportation and Highways, Kamloops Region, and as amended for an application of Tordon 22K (a.i. picloram) for the control of noxious weeds on all highways in the Lillooet Highways District.

The proposed application would be made to a total area of 150 hectares on the basis of spot treatment as needed.

The herbicide application is proposed to be made from the ground by power hose/nozzle, at the rate of 0.56 kg. a.i. per hectare for knapweed, and 1.08 kg. a.i. per hectare for other species.

The target species are Knapweed and Canada Thistle.

APPELLANT:

Lillooet Tribal Council, on behalf of Cayoose Indian Band Fountain Indian Band Lillooet Indian Band Indian Band Seton Lake Indian Band Anderson Lake Indian Band APPEAL NO. 86/20 PES P1\GE 2

HEARING DETAILS:

The hearing was held on October 28th, 1986, commencing at 9:40 a.m., at the Lillooet Memorial Curling Club, Lillooet, B. C.

The Board members in attendance were:

Mr. J.W. Warr, Panel Chairman Mr. G. R. Knight, Member Mr. P.D. Meyers, Member

Miss Shirley Mitchell, Executive Secretary to the Board, acted as recorder for the proceedings.

REASON FOR APPEAL:

The appeal was taken under Section 15 of the Pesticide Control Act, on the following grounds:

"Probable toxic contamination of surface and ground- water which recharge fish habitat and provide drink- ing water to human beings and wild beings7 toxic con- tamination of wild-food gathering areas; probable bio-accumulation of toxins throughout the food chain and eventual concentrations in the human beings using this area as a food source. possible toxic contamin- ation of persons using roadways."

APPELLANT'S REPRESENTATIVES:

Chief Perry Redan, Cayoose Creek Indian Band, and John McCandless, Environmental Researcher, Lillooet Tribal Council, acted as co-spokesmen.

Dr. Ruth Shearer, Ph.D., Genetic Toxicologist) Issaqua, Wash. ) Councillor Desmond Peters, Pavilion Indian ) Band ) Witnesses Chief Rose Smith, ) Elder Annie Jim, ) ) APPEAL NO. 86/20 PES PAGE 3

RESPONDENT:

Ministry of Transportation and Highways, represented by:

Mr. Logan Stewart, legal counsel - spokesman Ministry of Attorney-General Victoria, B. C.

Mr. Paul Erickson witness Manager, Roadside Development Victoria, B. C.

Mr. Ewald Rueger witness Roadside Development Supervisor Kamloops, B. C.

EXHIBITS:

1. A paper entitled "Pesticide Use in the Traditional Territory of the Lillooet Tribe" - a paper prepared by John McCandless, Environmental Reseacher.

2. A paper entitled "Toxicity of the Herbicides Dinoseb and Picloram to Cutthroat and Lake Trout" by D. F. Woodward, U.S. Fish & wildlife Service, Jackson, Wyo., 1975.

3. A paper entitled "Pesticides Studied in Man" by Wayland J. Hayes, Jr., M.D., Ph.D., Professor of Biochemistry, Vanderbilt University School of Medicine, 1982.

4. A paper entitled "Vegetation Control Growth" pre- pared by the Ministry of Transportation and Highways (undated) .

5. A booklet on the Cost Effectiveness of Alternatives to Picloram for Canada Thistle Control, Ministry of Transportation and Highways (undated). APPEAL NO. 86/20 PES PA.GE 4,

SUMMARY OF THE APPELLANT'S PRESENTATION:

Chief Redan stated that the chemicals used were rela- tively new and that their long-term effects had not been determined. He stated that much of the land had been utilized for food gathering and medicine, and that birds and animals also depended on these plants for food.

He stated that his people felt the appeal process was inadequate and there was a need for a review of the system of pesticide registration within Canada.

John McCandless stated that they did not recognize the jurisdiction of the Environmental Appeal Board in "traditional" Lillooet Tribal lands.

He stated that the increasing use of toxic chemicals on the land, highways, Hydro rights-of-way, forests, etc., threaten the foods and waters that the Indian people have traditionally been dependent upon. He gave a list of those plants and animals which can be used for food.

Councillor Desmond Peters stated that in late winter, deer are attracted to salt on the highways, and in feeding on roadside plants also consume any chemicals that have been sprayed which probably affect unborn fawns, while chemicals sprayed into culverts have an effect on fish.

When asked under cross-examination if he understood the term "spot treatment", Mr. Peters said he felt that spray could not be restricted to individual plants.

Dr. Ruth Shearer stated that no pesticide could be defined as low-toxicity based only on the lethal dose. She referred to the Industrial Bio-Test Laboratories tests as "invalid" and "fraudulent" .

She stated that a 1985 Environmental Protection Agency (U.S.) report showed large numbers of "data gaps" in reference to picloram and that these gaps must be filled before picloram can have full registration in the United States. APPEAL NO. 86/20 PES PAGE 5

She stated that picloram leaches very readily with water and does not bind to the soil, moving laterally and vertically, contaminating groundwater, and also leaches from roots of treated plants to other plants, killing them. She stated that Hexachlorobenzene was found as a contaminant in picloram and that this chemical would accumulate in fish and also accumulate in people who ate the fish. She said that picloram was extremely persistent and that the half-life was in the "hundreds of days" in soil.

In answer to a question during cross-examination, Dr. Shearer stated that the evidence she had presented was a compilation of published and unpublished work from E.P.A. and other sources, and not from personal laboratory work done by herself; she had not done any lab work on picloram. She agreed that the information available to her would also be available to the Canadian Government. She also said that picloram was not used for Agricultural purposes. She said she did not have any further information which would assist the Board in determining whether the Federal Government had made a mistake in licensing picloram.

In reply to a further question, she said that in her opinion, any amount of chemical, no matter how small, would cause an adverse effect on the environment, but not an unreasonable effect. She could not define what she meant by "extremely low level" and she said that picloram was more harmful to non-target plants than any other herbicide in widespread use.

SUMMARY OF THE RESPONDENT'S PRESENTATION:

Mr. Paul Erickson outlined the program of the B.C.Ministry of Transportation and Highways to maintain 50,000 km of highway rights-of-way within the Province. He pointed out that the Ministry is responsible under the Weed Control Act 1983 to control noxious weeds on highway rights-of-way. Two of the noxious weeds of most concern are Knapweed and Canada Thistle which, unless controlled, spread rapidly along rights-of-way and into adjoining fields and grazing lands, and, eventually, into residential lawns and gardens. When Knapweed spreads into pasture land, all other growth is killed off, leaving the pasture unfit for grazing. APPEAL NO. 86/20 PES PAGE ~

Mr. Erickson said that each year the Ministry spot-treats approximately 2,000 hectares of rights-of-way, using herbicides, but the actual area treated is approximately one- quarter of the 2,000 hectares. He stated that the Ministry of Agriculture advises that effective control of noxious weeds can only be accomplished through the use of herbicides.

He said that the Ministry of Transportation and Highways adhere strictly to the conditions and special instructions regarding spraying as laid down by the Pesticide Control Branch of the Ministry of Environment.

Under cross-examination by the Appellant's spokesman -

Mr. Erickson said that one of the methods used to control the spread of Knapweed was a public awareness program to reduce the accidental spread by vehicles to unaffected areas.

Mr. Reuger said that Highways did not expect to eradicate Knapweed but only to control it, and reduce the spread.

Mr. Stewart stated that the Ministry would have no objection to posting signs for two weeks to a month following spraying in areas which are specifically identified by the Council when food gathering is actually taking place, and that possibly the permit could be so amended.

At the request of the Panel, Mr. Rueger gave a description of the actual method used to spot-treat noxious weeds, and how pesticide-free zones around waterbodies were observed.

Mr. Erickson said that not only was manual control more expensive than chemical treatment, but was much less effective.

DECISION:

The Panel of the Environmental Appeal Board, authorized under the Pesticide Control Act and the Environment Management Act to hear the appeal of the Lillooet Tribal Council against Pesticide Use Permit No. 102-410-86/88, issued to the British Columbia Ministry of Transportation and Highways for control of noxious weeds in the Lillooet Highways District, has considered all of the evidence submitted to it at the hearing on October 28th, 1986. APPEAL NO. 86/20 PES PAGE 1

The Panel has concluded that the implementation of the program in accordance with the terms as specified in the permit, and as amended, will not cause an unreasonable adverse effect to mankind and/or the environment.

The appeal, therefore, is dismissed.

The following additional specific terms, however, shall also become part of the permit's requirements:

1. The Ministry of Transportation and Highways shall post and maintain signs for a period of 4 weeks following spraying in areas specifically identified where food gathering is taking place or likely to take place within that timeframe.

These specific areas are to be identified in consulta- tion with the Ministry and representatives of the Lillooet Tribal Council, and the Board cautions both parties that the said areas must be reasonable and clearly identifiable as actual food gathering areas at time of spraying.

2. The Permit is further amended due to the delay caused by the appeal proceeding, to show the completion date as September 30th, 1989.

GENERAL COMMENTS OF THE BOARD:

1) The Panel appreciates the concerns of the Appellant for the safety of the environment; however, having toured the highways under discussion prior to the hearing, and having weighed the evidence presented, the Panel finds nothing which would indicate that the application as specified in the permit will be harmful to the environ- ment. The Panel regrets that the spokesman for the Appel- lant declined to accompany them on the site-inspection of the highways. APPEAL NO. 86/20 PES PAGE 8

2) The Panel points out that Chief Redan's argument for a review of the system of pesticide registration in Canada is outside the Board's jurisdiction. The Panel also finds it contradictory that Mr. McCandless does not recognize the jurisdiction of the Environmental Appeal Board, yet seems to be willing to use that avenue to appeal a lawfully issued pesticide use permit.

The Panel also has difficulty in understanding the term "traditional tribal lands".

3) Furthermore, t.he members of the Panel are satisfied that the Permit Holder has the ability and intention, as well as the legal obligation, to apply the pesticide Tordon 22K according to the proper procedures and in the amounts as specified in the permit for the control of noxious weeds on the highways rights-of-way.

Warr, P. Eng., el Chairman, Environmental Appeal Board.

Victoria, B. C. February 27th,1987