Date: 20000720
Docket: T-2000-99
BETWEEN:
BC LANDSCAPE & NURSERY ASSOCIATION,
BRITISH COLUMBIA HORTICULTURAL COALITION AND
VAN VLOTEN NURSERIES LTD.
Applicants,
and
ATTORNEY GENERAL OF CANADA
Respondent.
REASONS FOR ORDER
GIBSON, J.
INTRODUCTION
[1] By notice of application filed in the Registry of the Court at Vancouver on the 15th of November, 1999, the applicants seek judicial review of the Minister of Agriculture and Agri-Foods" (the "Minister") decision or decisions constituting a "...refusal to accept responsibility for, and take action toward, eradicating and preventing the spread of North American Gypsy Moth in British Columbia."
BACKGROUND
[2] Based upon the material before the Court and on the submissions of counsel at the hearing of this application for judicial review, I am satisfied that the decision on the part of the Government of Canada to withdraw from eradication efforts in British Columbia relating to the North American Gypsy Moth (the "NAGM") was taken by the Minister, in consultation with senior officials of the Canadian Food Inspection Agency (the "CFIA"). 1
[3] Review of the role of the Government of Canada in response to infestations of NAGM in limited regions of south-west British Columbia would appear to have been motivated by:
| - cost concerns; |
| - a decision of the British Columbia Environmental Appeal Board to set aside and refer back to appropriate authorities for variation and amendment, a permit apparently issued by governmental officials in British Columbia that would have authorized aerial spraying in the spring of 1998 of a pesticide designed to eradicate NAGM. In its decision, the Environmental Appeal Board was highly critical of the consultation efforts of the CFIA with the community and of the timing of its processes that led, in the Board"s view, to insufficient time for the appeal process before the spraying season "window of opportunity" occurred; and |
| - concerns and views expressed by west-coast American states that they might seek to limit or prevent export of British Columbia forest products to their states. |
[4] The decision to withdraw from eradication efforts was apparently taken at or following a discussion involving the Minister and senior officials of CFIA, and perhaps others, that was in turn based on a memorandum to the Minister from those officials dated the 24th of August, 1998. While the memorandum is somewhat lengthy, it provides an excellent overview of the context in which the decision appears to have been taken. The substance of the memorandum is set out in full in Appendix A to these reasons.
[5] The meetings contemplated by the brief paragraphs headed "Next Steps" in the memorandum to the Minister that appears as Appendix A apparently took place. CFIA officials reported on those meetings in a further memorandum to the Minister dated the 16th of September, 19982. In that memorandum, CFIA officials recommended the following further "Next Steps":
| 1. CFIA will send information to the B.C. Ministry of Forests on the cost of certification under a zone management system. |
| 2. CFIA will send a letter to the B.C. Ministry of Forests officially asking that they assume responsibility if they wish to continue with an eradication program for NAGM. |
| 3. Continue consultation with the B.C. Ministry of Forests in order to develop a new NAGM policy. |
| 4. Advise the forestry and nursery industries in B.C. that consultations with the province are in progress toward developing a new NAGM policy. |
| 5. Develop a new NAGM policy and distribute to industry, the provinces, the U.S. and other stakeholders. |
[6] On the 1st of October, 1998, the acting president of CFIA wrote to the British Columbia Deputy Minister of Forests and described CFIA"s position, apparently as presented at the meeting of federal and provincial officials on the 9th of September, in the following terms3:
| If B.C. wishes to continue to maintain its NAGM-free status, then it should assume responsibility for annual spraying and permit applications which are required for on-going eradication. If the province is not prepared to assume the responsibility for eradication, then the CFIA will change its NAGM strategy to one of zone management. Zone management is currently in place for Nova Scotia, New Brunswick, Ontario and Quebec. Survey results will be used to designate infested and non-infested areas in B.C. Certification from non-infested zones would be based on area-freedom, where as certification from infested areas would be based on control programs for NAGM established within the infested zone to ensure that material shipped or exported out of the zone is free of NAGM. There would, of course, be costs to the exporters, but these costs are likely to be minimal for commodities such as nursery stock, which presently require certification for other pests. Certification programs will be developed in consultation with affected industries. |
[7] The CFIA"s recommendation to the Minister that it change its strategy on NAGM would appear to have been based on two principal considerations. First, efforts to eradicate NAGM in B.C. over the past 20 years had cost CFIA (and its predecessor Agriculture and Agri-Food Canada) approximately $3 million. Eradication had been unsuccessful because it had not been possible to block the pathway for reintroduction from infested areas of Canada and the U.S. Consequently, eradication efforts in the future would require on-going efforts and annual commitments of significant resources. Second, in the preceding two years, eradication efforts had suffered a major set back as a result of the refusal of the B.C. Environmental Appeal Board to "issue" necessary permits for aerial spraying. As a result, the NAGM infestation had expanded.4 While the references in material before the Court to the refusal on the part of the B.C. Environmental Appeal Board to "issue" necessary permits for aerial spraying are inaccurate, they nonetheless reflect the significance of the 1998 decision of the Environmental Appeal Board earlier referred to, to the change in strategy on the part of the Minister and CFIA.
[8] According to the affidavit of H.A. (Tony) Kluge of the British Columbia Ministry of Agriculture and Food filed in these proceedings5, the CFIA established "regulated areas" in British Columbia pursuant to its "Gypsy Moth Policy". This step would appear to have been entirely consistent with the move to a "zone management" strategy on the part of CFIA.
[9] CFIA officials again wrote to the Minister on the 19th of February, 19996 and described the issue that was then put before the Minister in the following terms:
| The province of British Columbia (B.C.) is likely to ask the Canadian Food Inspection Agency (CFIA) to reverse its decision to no longer fund the eradication efforts for North American gypsy moth (NAGM) and will ask that CFIA share the costs of this year"s eradication program estimated at 2.65 million dollars. |
CFIA officials recommended a short-term strategy to the Minister in the following terms:
| Continue to work with industry, provinces, trading partners to develop inspection and certification programs to permit continued market access. This brings CFIA"s NAGM position with B.C. in line with approaches taken in other provinces and with other pests. |
As a longer-term strategy, the following was recommended:
| CFIA supports the need for a comprehensive study with respect to Domestic Quarantine Pest eradication/funding. NAGM may be a vehicle for this discussion. |
In his affidavit filed on behalf of the respondent, Mr. Greg A. Stubbings attests that:
| The Minister concurred with the recommended position [quoted above] and requested that I examine the costs of the NAGM eradication program on an annual basis so that a one-time transition fund could be established to assist B.C.7 |
[10] Finally, on March 25, 1999, the Minister wrote to his counterpart at the Ministry of Agriculture and Food for the Province of British Columbia. That letter8 reads in part as follows:
| As you know, the federal government has spent more than $2.5 million to eradicate North American gypsy moth in B.C. in the last 20 years. Since 1979, inspection teams have been detecting new introductions of gypsy moth in B.C. annually. The continued detection of this pest in B.C., along with the annual re-introduction of the pest to western North America, is testimony to the difficulty involved in preventing re-infestation. |
| In recent years, aerial spray programs to eliminate introductions and spread of gypsy moth were denied by the B.C. Environmental Appeal Board. The infested area on southern Vancouver Island has expanded significantly as a result of the Board"s decisions, in 1997 and 1998, not to permit the aerial spray program. Because of these provincial decisions, future eradication efforts will require a commitment of resources substantially greater than previously required. |
| Like that of all other provinces where North American gypsy moth is established, the eradication program is a provincial initiative for which the province must accept leadership in providing funding. Nevertheless, I recognize that, for a province where North American gypsy moth was previously not established, the transition to regulated areas for gypsy moth poses a number of challenges. Accordingly, a one-time federal contribution of $80,000 to assist industry and the Province during this transition will be provided. The Canadian Food Inspection Agency (CFIA) will also continue to support the province by offering the technical expertise it has acquired over the years. |
| In October 1998, at the demand of the U.S. Food and Drug Administration, the CFIA established regulated areas in B.C., in consultation with industry and the Province. British Columbia is now being regulated in the same way as the infested provinces of Ontario, Quebec, Nova Scotia, and New Brunswick, where the CFIA carries out inspection and certification programs. |
| The establishment of regulated areas and certification programs have provided our trading partners with the necessary safeguards they demand. British Columbia products continue to access traditional markets. |
| The CFIA will continue to work with provincial officials, industry, the public, and our trading partners to ensure that the existing controls are effective. The CFIA is already working to streamline inspection and certification programs to lower costs to producers through greater reliance on producer accreditation and self-inspection systems. At the same time, it is the CFIA"s goal to find ways to maintain and increase trade with the free movement of products. If provincial efforts to eradicate North American gypsy moth are successful, the CFIA will be in a position to negotiate, with the U.S., the removal of the current regulated areas. |
[11] Thus, the transition from an eradication strategy to a zone management strategy in respect of NAGM in British Columbia on the part of the federal government, apparently initiated by the decision of the Minister in late August of 1998, appears to have been completed and entrenched by the end of March, 1999.
THE APPLICANTS
[12] The BC Landscape & Nursery Association is an incorporated society, the membership of which includes over 540 growers, retailers, landscape professionals and suppliers. Its role, according to the affidavit of Jane Stock, its executive director, filed on this application, is: "... to serve as the voice of BC"s landscape and nursery industry". It is a member of the British Columbia Horticultural Coalition.
[13] The British Columbia Horticultural Coalition is also an incorporated society. According to the affidavit of Stephen Torrence, a director of the Coalition, filed on this application, it represents over three thousand "...individual farmers, in 18 commodity associations, in respect of matters that affect the long-term viability and profitability of the horticultural industry and its individual producers."
[14] Van Vloten Nurseries Ltd. is a nursery located in the lower mainland of British Columbia, not within one of the NAGM regulated areas established by the CFIA. According to the affidavit of its owner and operator filed on this application, it sells approximately $6 million of landscape and nursery products annually of which approximately half in value is export sales to the United States.
[15] The direct interest of each of the applicants in this proceeding was not in dispute before me.
THE LEGISLATIVE FRAMEWORK
[16] Canada is one of over 100 parties to the International Plant Protection Convention9, the purpose of which is to secure "... common and effective action to prevent the spread and introduction of pests of plants and plant products and to promote measures for their control...". The NAGM is both a "pest" and "quarantine pest" under the Convention. By article IV (1)(a)(i) of the Convention, Canada, as a contracting party to the Convention, is obliged to make provision for an official plant protection organization responsible for the inspection of growing plants, of areas under cultivation, including nurseries, gardens and green houses, and of plants and plant products in storage or in transportation, particularly with the object of reporting the existence, outbreak and spread of plant pests and of controlling those pests . Canada, as a contracting party to the Convention, is obliged to "... assume responsibility for the fulfilment within its territories of all requirements under [the] Convention."
[17] Section 2 of the Plant Protection Act10 provides that the purpose of the Act:
... is to protect plant life and the agricultural and forestry sectors of the Canadian economy by preventing the importation, exportation and spread of pests and by controlling or eradicating pests in Canada.
...vise à assurer la protection de la vie végétale et des secteurs agricole et forestier de l'économie canadienne en empêchant l'importation, l'exportation et la propagation de parasites au Canada et en y assurant la défense contre ceux-ci ou leur élimination.
Once again, it was not in dispute before me that NAGM is a "pest" for the purposes of the Plant Protection Act .
[18] Section 3 of the Plant Protection Regulations11 enacted pursuant to the Plant Protection Act provides as follows:
3. Where, after a pest risk assessment, the Minister or an inspector believes on reasonable grounds that a thing is a pest, or a thing or place is or could be infested or constitutes or could constitute a biological obstacle to the control of a pest, and the Minister determines that, in the circumstances, it is necessary and cost-justifiable to take pest control measures, an inspector shall, as appropriate in the circumstances for the purpose of eradicating the pest or preventing its spread, take one or more of the actions that the inspector is authorized to take under the Act or any regulation or order made thereunder.
3. Lorsque le ministre ou l'inspecteur, à la suite d'une analyse du risque phytosanitaire, a des motifs raisonnables de croire qu'une chose soit est un parasite, soit est parasitée ou susceptible de l'être, qu'un lieu est infesté ou susceptible de l'être ou que la chose ou le lieu constitue ou peut constituer un obstacle biologique à la lutte antiparasitaire et lorsque le ministre établit que, compte tenu des circonstances, des mesures de la lutte antiparasitaire sont nécessaires et justifiables quant aux coûts, l'inspecteur prend une ou plusieurs des mesures que la Loi ou ses textes d'application l'autorisent à prendre et qui sont indiquées dans les circonstances pour l'élimination des parasites ou pour la prévention de leur propagation.
I find it particularly important to note that, under section 3 of the Regulations, where the threshold test is met, the obligation of an inspector is to take one or more of the actions that he or she is authorized to take, as appropriate in the circumstances, for the purpose of eradicating the pest or preventing its spread.
THE ISSUES
[19] Counsel for both the applicants and the respondent were in agreement before the Court that the decision or decisions here under review fell within the ambit of section 3 of the Plant Protection Regulations and were either made by the Minister or by an "inspector" after full consultation with the Minister and with the Minister"s explicit approval, albeit that that approval may never have been reduced to writing. Counsel both identified as an issue the standard of review of such a decision or decisions, particularly in light of the recent decision of the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration)12 where the issue of standard of review of discretionary administrative decisions was addressed.
[20] Against the appropriate standard of review, the applicants identified the following further issues:
| (a) Has the Minister made an error in law in concluding that responsibility for gypsy moth eradication transfers to a province if he deems the moth "established" in that province? |
| (b) Has the Minister refused to exercise his jurisdiction under section 3 of the Plant Protection Regulations in respect of whether to take action to eradicate gypsy moth in British Columbia? |
| (c) Has the Minister fettered his discretion under section 3 of the Plant Protection Regulations in respect of whether to take action to eradicate gypsy moth in British Columbia? |
| (d) Has the Minister considered irrelevant factors, or failed to consider all relevant factors, under section 3 of the Plant Protection Regulations in respect of whether to take action to eradicate gypsy moth in British Columbia? |
| (e) Has the Minister failed to comply with the principles of procedural fairness and natural justice in not adequately consulting affected parties regarding the decision to discontinue federal eradication efforts? |
ANALYSIS
[21] I am satisfied that section 3 of the Plant Protection Regulations provides for two separate but interrelated decisions. The first is a threshold test. It involves first, a "pest risk assessment". Where a pest risk assessment is carried out, the Minister or an inspector is then required to determine whether he or she believes, on reasonable grounds, that a thing, presumably the subject of the pest risk assessment, is a pest, or a thing or place is or could be infested or a thing or place constitutes or could constitute a biological obstacle to the control of a pest. Once the first two stages of the threshold test are completed, and presumably assuming positive determinations in respect of each of those stages, as a third stage, the Minister must make a determination as to whether or not, in the circumstances, "... it is necessary and cost-justifiable to take pest control measures".
[22] I can only assume on the basis on the material that is before the Court that this three-stage threshold test was completed in respect of NAGM in British Columbia, and the Minister, or a predecessor of the Minister, determined that pest control measures in respect in NAGM in British Columbia were both necessary and cost-justifiable, long before the decision or decisions here under review were taken.
[23] As noted earlier in these reasons, the Minister, in a letter dated the 25th of March, 1999 addressed to his counterpart, the Minister of Agriculture and Food in the Government of the Province of British Columbia, wrote: "As you know, the federal government has spent more than $2.5 million to eradicate North American gypsy moth in B.C. in the last 20 years."
[24] Thus, prior to the aerial spraying that was proposed for the spring of 1998 but that did not take place, CFIA and its predecessor or predecessors had been engaged in pest control measures for the purpose of eradicating NAGM, or preventing its spread. That this was in fact the case was not disputed before me. Since the taking of such pest control measures could only follow a positive determination on the threshold test reflected in section 3 of the Plant Protection Regulations, I can only conclude that that threshold test, at all times relevant to the decision or decisions here under review, no longer stood as a condition to an inspector taking, as appropriate in the circumstances for the purpose of eradicating NAGM or preventing its spread, one or more of the actions that the inspector was authorized to take under the Plant Protection Act or any regulation or order made thereunder.
[25] One of the actions that an inspector was authorized to take for the purpose of preventing the spread of NAGM was the establishment of regulated areas or control zones. That action constituted an alternative to aerial spraying which had been intended to accomplish the purpose of eradicating NAGM but which, for a number of reasons, had been unsuccessful in achieving that purpose.
[26] Thus, the decision or decisions that is or are under review here was or were not threshold decisions under section 3 of the Plant Protection Regulations but rather, simply a decision or decisions as to an action or actions appropriate in the circumstances then prevailing directed to the purpose of eradicating NAGM, a purpose apparently considered by the Minister to be no longer attainable, or to the purpose of preventing the spread of NAGM, a purpose apparently considered more attainable, consistent with the practice and experience in other provinces where NAGM was present, more economically feasible and, finally, acceptable to Canada"s trading partners in the United States.
[27] While the choice among actions or measures available to an inspector and appropriate to the circumstances was left by section 3 of the Plant Protection Regulations for decision by an inspector, it is beyond question that, given the political sensitivity and potential cost implications for others of the action or measure that CFIA was proposing, I can only conclude that it was entirely open to CFIA or its inspectors to consult the Minister regarding the change from eradication measures to measures to prevent the spread of NAGM and to be guided by his or her advice or decision in that regard. This is particularly so given that, as provided by subsection 4(1) of the Canadian Food Inspection Agency Act, "[t]he Minister is responsible for and has the overall direction of [CFIA]".
[28] Based upon the foregoing analysis, I conclude that the concerns on behalf of the applicants that the decision to change from a strategy of eradication to one of control required as a condition or conditions precedent a "pest risk assessment", a determination that NAGM is a pest and a determination by the Minister that, in the circumstances, it was necessary and cost-justifiable to take pest control measures, are unjustified. Rather, the decision or decisions taken were purely discretionary decisions as to choices among authorized actions directed to the purpose of eradicating NAGM or preventing its spread.
[29] Having reached the foregoing conclusion, against the guidance provided by the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration)13, I conclude that the standard of review of the decision or decisions taken by the Minister for the guidance of CFIA and its inspectors is that of patent unreasonableness. The following is a brief summary of what I consider to be the relevant guidance provided by the Supreme Court of Canada in Baker.
[30] I am satisfied that the words of section 3 of the Plant Protection Regulations invest considerable discretion in the Minister at the level of the threshold test. It is his or her responsibility to make a determination whether or not, in the circumstances, it is necessary and cost-justifiable to take pest control measures. It is his or her determination of what are the relevant circumstances that impact on, when it is necessary and when it is cost-justifiable. Those words leave considerable discretion to the Minister. Only after that discretionary determination does it fall to an inspector to make a choice "as appropriate in the circumstances", presumably in his or her opinion and, as here, after consultation with the Minister, of the appropriate actions. There is no privative clause in law relating either to the threshold decision or the choice among actions available to an inspector. Both the Minister and the inspector must be considered to have special expertise in the area of their responsibilities. The purpose of section 3 of the Regulations is clearly to facilitate the Minister and his or her officials in carrying out their responsibilities under the International Plant Protection Convention, as well as under the Constitution of Canada. As such, considerable flexibility for the Minister and inspectors is warranted and significant deference is appropriate subject to limited judicial control and more significant political accountability. The nature of the problem in question is not limited in geographical terms either to a single province or to Canada as a whole. It has significant international implications. Once again, I conclude that this augurs in favour of significant deference. It is against these factors outlined in paragraphs 57 to 61 of the Baker decision, and the facts of this matter, that I conclude that the appropriate standard of review is patent unreasonableness.
[31] Against a standard of review of patent unreasonableness, I conclude that the Minister, together with an inspector or inspectors, made no reviewable error in reaching the decision or decisions that are here under review.
[32] Whatever the material before the Court may indicate, I am satisfied that the Minister did not conclude that responsibility for NAGM eradication transferred to a province when he deemed the moth to be "established" in that province. Whether or not the Minister in fact deemed NAGM to be "established" in the province of British Columbia in the late summer of 1998, it was open to him, together with an inspector or inspectors, to determine to move from a strategy of eradication to a strategy of zone management to prevent the spread of NAGM in the province and that is the decision that was made. A result of that decision was that, if the province of British Columbia determined that, despite the decision of the Minister, it wished eradication measures to be pursued within the province, it was open to it to pursue those measures itself. It simply was not within the power of the province of British Columbia or of the applicants to veto the decision of the Minister to move to a zone management strategy and require the Minister, CFIA and its inspectors to pursue an eradication strategy notwithstanding the decision of the Minister that that was no longer the most appropriate strategy in the circumstances.
[33] The Minister did not refuse to exercise his jurisdiction under section 3 of the Plant Protection Regulations in respect of whether to take action to eradicate NAGM in British Columbia. Rather, he chose to exercise the jurisdiction provided under section 3 of those Regulations by pursing an alternative strategy contemplated by that section.
[34] Similarly, I find nothing in the material before the Court on this application to indicate that the Minister or an inspector or inspectors fettered his, her or their discretion under section 3 of the Plant Protection Regulations in respect of whether to take action to eradicate NAGM in British Columbia.
[35] Further, I find no basis on the material before the Court on which to conclude that the Minister, an inspector or inspectors considered irrelevant factors, or failed to consider all relevant factors, in reaching the decision that he, she or they did. While it is true that CFIA had in its possession a 1994 study entitled "A Risk Assessment of European Gypsy Moth in British Columbia" prepared by Deloitte & Touche and Phero Tech Inc.14, I am satisfied that it was not incumbent upon CFIA to reference that work in the briefing materials it provided to the Minister. It is the role of an agency such as CFIA in seeking advice or a decision from a Minister to put before that Minister such of the huge volume of materials likely to be available to it as it considers most appropriate and pertinent in the circumstances. Its choice in that regard is not an issue in this proceeding. There is simply no evidence before the Court that would indicate that the Minister failed to take into account all of the materials that were put before him or took into account factors or materials that were irrelevant to the decision or decisions here under review.
[36] Finally, I find that the principles of procedural fairness and natural justice provide only a very low threshold in terms of a duty to consult stakeholders such as the applicants in arriving at a decision or decisions such as that or those here under review that are, in their nature, highly discretionary. The accountability of a Minister of the Crown for consultation with stakeholders such as the applicants in this matter in reaching a decision such as the decision or decisions here under review, that are highly discretionary in nature, is, by its nature, primarily political and not judicial. In the absence of a duty to consult provided for by law, that accountability is through the ballet box, not through the Courts.
CONCLUSION
[37] Based on all of the foregoing, I conclude that this application for judicial review must be dismissed.
[38] The application will be dismissed with costs in favour of the respondent.
_______________________
J.F.C.C.
July 20, 2000
Ottawa, Ontario
APPENDIX A
Gypsy Moth Eradication in British Columbia
| ISSUE: Canadian Food Inspection Agency (CFIA) officials plan to meet with officials of the B.C. Ministry of Agriculture and Food (BCMAF) in September 1998 to discuss regulatory options for the North American gypsy moth program in that province and future payment of costs for eradication of this pest in B.C. |
| BACKGROUD: |
| North American gypsy moth (NAGM) was first introduced from Europe into the U.S. in 1869 and has since become established in the eastern U.S. and in Nova Scotia, New Brunswick, Quebec, and Ontario. According to risk assessments conducted in Canada and the U.S., the pest attacks mainly deciduous trees and is likely to cause significant economic damage only to forests comprised of more than 40 per cent of oak species. The area of potential damage excludes all of Canada (75 per cent of forests are of coniferous species) and most of U.S. The primary concern is damage to recreational areas. |
| Spread of NAGM from infested to non-infested areas can occur by various pathways including Christmas trees, nursery stock, unmanufactured articles, military vehicles and equipment, and recreational vehicles. As a result, it has been found impossible to prevent NAGM spread. The strategy in the U.S. and Canada is to slow the spread and prevent the establishment of the pest in western regions of both countries. This strategy involves regulatory restrictions on movement of articles from infested to non-infested areas and costly annual spray programs in the western U.S. and in B.C., to eradicate repeated introductions. |
| Movement of goods from infested areas to non-infected areas requires inspection and certification with resulting costs to industry. For almost 20 years in B.C., spraying to eradicate NAGM introductions has been conducted to facilitate trade in nursery stock and forest products with western U.S. states. |
| The CFIA has adopted zone management strategies in other parts of Canada to facilitate movement of regulated commodities within Canada and to the U.S. |
| The government of B.C., which owns 95 per cent of the forested land in its territory, has always considered eradication of NAGM to be a federal responsibility mandated under the Plant Protection Act. In the past, Agriculture and Agri-Food Canada (AAFC), now the CFIA, has borne the majority of costs of eradication of NAGM in B.C. Legal Services advise that, although the Minister has authority under the Plant Protection Act to conduct eradication programs, there is no legal obligation to do so, and the Minister may exercise his discretion in determining the appropriate allocation of resources. Therefore, unless the CFIA can commit to appropriating funds for annual eradication of NAGM in B.C., eradication will only be achieved if funded by the province or the private sector. |
| STATUS/CFIA POSITION: |
| This past year, costs were split between CFIA and the province on a ground spray program after industry refused to pay its share. Eradication programs were never carried out by AAFC/CFIA in Nova Scotia, New Brunswick, Quebec, and Ontario where NAGM was first introduced. It seems appropriate, therefore, to request the government of B.C., to assume the responsibility for NAGM eradication in the future. Apart from assuming costs for eradication, CFIA officials have had difficulty in obtaining spray permits in B.C. because of objections from environmental groups. This year the CFIA was forced to cancel an aerial spray program and to resort to ground spraying. As a result, there is a good chance that NAGM infestations in B.C. will expand this year. If this is the case, significant costs for eradication in 1999 will be incurred. |
| In the long term, NAGM should be deregulated. However, unless the U.S. agrees to such action, Canada is forced to consider NAGM as a quarantine pest and impose regulatory restrictions to maintain ongoing trade of forest products with the U.S. The CFIA will propose an intermediate step of regulation, on a North American regional basis, leading to the ultimate deregulation in all or parts of both Canada and the U.S. The CFIA plans to discuss the possibility with the U.S. Department of Agriculture - Animal and Plant Health Inspection Service (USDA-APHIS). |
| NEXT STEPS: |
| Meet with BCMAF officials on September 9, 1998, to discuss the gypsy moth eradication program, future payment for eradication programs, mandates and other NAGM regulatory options (such as zone management). Meet with the USDA-APHIS on September 10, 1998, to discuss future management options for NAGM in a North American context. |
| Keep industry stakeholders informed. Develop a communication plan.15 |
1 The Canadian Food Inspection Agency is a corporation established by the Canadian Food Inspection Agency Act , S.C. 1997, c. 6 to exercise powers as an agent of Her Majesty In Right Of Canada. Those powers include the administration and enforcement of the Plant Protection Act S.C. 1990, c. 22. By subsection 4(1) of the Canadian Food Inspection Agency Act, the Minister is responsible for and has the overall direction of the Canadian Food Inspection Agency.
2 Exhibit L to the affidavit of Greg A. Stubbings, Respondents Record, Volume I, Tab L.
3 Exhibit M to the affidavit of Greg A. Stubbings, Respondents Record, Volume I, Tab M.
4 Exhibit M to the affidavit of Greg A. Stubbings, Respondent"s Record, Volume I, Tab M.
5 Affidavit of H.A. (Tony) Kluge, Applicants" Record, Volume I, Tab 3, paragraph 13.
6 Exhibit T to the affidavit of Greg A. Stubbings, Respondent"s Record, Volume I, Tab, T.
7 Affidavit of Greg A. Stubbings, Respondent"s Record, Volume I, paragraph 49.
8 Exhibit P to the affidavit of Shane Sela, Respondent"s Record, Volume II.
9 CTS 1953/16, as amended by Resolution 14/79 adopted 28 November, 1979.
14 Respondent"s Record, Volume I, Tab C.
15 Exhibit K to the affidavit of Greg A. Stubbings, Respondents Record, Volume I, Tab K.