Integrated Pest Management

Draft Guidelines for IPM Proponents Conducting Consultations with First Nations

1. Introduction

Pest Management, which involves the use of herbicides, insecticides, fungicides and other pesticides, is regulation in British Columbia under the Integrated Pest Management Act (IPMA) and the Integrated Pest Management Act Regulation (IPMR). This act and regulation are administered by the Ministry of Environment (referred to below as 'the Ministry') and came into force on December 31, 2004, replacing the Pesticide Control Act and Pesticide Control Act Regulation.

This document presents guidelines regarding First Nations consultation steps to be conducted by pest management proponents ¹ under the IPMA, within the framework of the Crown's (provincial government) consultation processes.

These guidelines are "Draft" as they are intended to provide guidance to proponents while the Ministry reviews them with First Nations and industry and considers possible amendments to the IPMR to address First Nation consultation requirements.

These guidelines have been prepared to support implementation of the IPMA and IPMR and are not a substitute for the legal requirements set out in the legislation. These guidelines should be used in conjunction with the IPMA and IPMR in order to place First Nation consultation in context with other regulatory requirements. Links to the IPMA and IPMR and to summaries of the legal requirements for industry in Sector Review Papers are available here.

Terms defined in the IPMA and IPMR have the same meaning when used in these guidelines.

The foremost requirement of the IPMA is that a proponent must not use a pesticide that causes or is likely to cause an unreasonable adverse effect ². It is the responsibility of the proponent to investigate concerns identified during consultation, determine the potential for an adverse effect, and ensure plans are modified as necessary to prevent an unreasonable adverse effect.

Good consultation practices benefit proponents under the IPMA. Proponents who are proactive in carrying out and reporting on consultation steps with First Nations, as described in these guidelines, can expect to benefit by preventing delays that may result from Ministry inquiries and involvement. Proactive and sincere efforts to consult will also help build positive working relationships between First Nations and proponents in areas where proponents operate. The consultation steps in these guidelines are intended to complement existing consultation practices that many proponents and First Nations have developed and have determined to be mutually acceptable.

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¹ "Proponent" means, as the context requires, an applicant for a pesticide use license or permit, or a person who prepares a pest management plan and gives the Ministry a pesticide use notice under the IPMA or IPMR.

² IPMA, Section 1, In this Act: "adverse effect" means harm to humans, animals or the environment.

2. Consultation Steps to be Conducted by Proponents

This section provides guidance on First Nation consultation steps and how they should be conducted by proponents. In instances where aboriginal interests or treaty rights may be adversely impacted by pest management activities regulated under the IPMA, the Ministry will assess the proponent's conduct of and fulfillment of these steps (see Ministry contact information in Appendix A).

2.1 Determining the Level of First Nations Consultation

First Nations consultation is required when a proposed pest management activity is to be conducted in an area where a First Nation asserts aboriginal interests or has treaty rights.

When consultation is required, the level of consultation to be conducted is determined by assessing the potential for that activity to have an adverse impact on a First Nation's aboriginal interests or exercise of treaty rights.

Pest management activities may be proposed for many different types of pests (including insects, fungal diseases and weeds) and using many different application methods (ranging from small uses that target the specific pest, to large uses that may target a number of different plants or animals). Proposals for pesticide uses range from land that is highly managed and modified (e.g., weed control on dam sites or in hydro-electric compounds) to land that is managed infrequently (e.g., removal of plants that overgrow planted seedlings in harvested forest lands).

The table in Appendix B rates different categories of pest management according to potential for adverse impact on land or resource use. For categories where there is no potential for adverse impact, notification to the appropriate First Nation about the activity would likely be sufficient. Where there is a potential for adverse impact on First Nations aboriginal interests or exercise of treaty rights, more in-depth consultation will be necessary.

In many cases proponents will be aware of the First Nations who assert aboriginal interests or who have treaty rights in the proponent's area of operation. If this is not the case, a proponent should conduct research to determine the nature of potential First Nation aboriginal interests or  treaty rights in the area, including the location of reserves, communities, and asserted traditional territories (which may involve more than one First Nation). Contact information for First Nations may be found on the Ministry of Aboriginal Relations and Reconciliation website.

Ministry of Environment regional offices may also be able to assist in determining whether all appropriate First Nations have been identified. (See contact information for Ministry regional offices in Appendix A).

2.2 Initiating Contact with First Nations for In-depth Consultation

Proponents must make reasonable efforts to contact First Nations who assert aboriginal interests or who have treaty rights in the area where pest management is proposed. The Chief should be the first point of contact; then, if the Chief so directs, preferably in writing, subsequent communications may be with a designated Councillor, Band Manager, other employee, tribal council or treaty association. It may be necessary to make several attempts at contact, either through phone calls or letters, and sufficient time must be allowed for a response. A minimum of three efforts using methods that include telephone, registered letter or personal visits over a two-three month period, and allowing a minimum of 30 days for a First Nation to reply, is generally considered to be a reasonable effort at making contact.

Where a proponent's communication with a First Nation is intended to initiate or form part of a consultation process, proponents should advise the First Nation that the communication forms part of the Crown's consultation process for the proposed activity in question. The initial communication should also invite comment from the First Nation regarding proposed pest management activities within areas where the First Nation asserts aboriginal interests or has treaty rights. A copy of this initial communication is to be sent to the Ministry headquarters office (Appendix A) so that the Ministry is made aware that this consultation process has been initiated.

The initial communication should provide basic information about the proposed pest management activities, including:

• what is being proposed;
• how and when it will happen; and
• where it will happen (reference should be made to a draft pest management plan [when prepared] with an indication that a copy can be provided to the First Nation if requested).

The initial communication should also request information on specific aboriginal interests or treaty rights that may be adversely impacted by the proposed pest management activities. This may include the following information:

• what traditional uses and activities are practiced within the proposed area;
• where these traditional uses and activities have taken place; and
• technical information or traditional knowledge of the area that would assist in assessing the potential impact of the proposed activities on asserted aboriginal interests or treaty rights.

Where adverse impact to land or resources may occur (as listed in Appendix B), the initial communications should indicate that the proponent would like to meet with a representative of the First Nation to ensure that the proposed pest management activities are understood and that First Nation’s response is understood by the proponent, with the intent to carry on meaningful consultation as may be required.

Appendix C contains a template for preparing a proponent's initial contact letter. A copy of this initial contact letter is to be sent to the Ministry headquarters office so that the Ministry is made aware that this consultation process has been initiated.

2.3 Information Exchange

Proponents should provide meaningful and understandable information about the proposed pest management activities to the identified First Nations. Proponents should also make a reasonable effort to obtain and understand all the information that a First Nation can provide about aboriginal interests or treaty rights that may be adversely impacted by the proposed activities. Exceptions to this obligation are instances where a First Nation has advised, in writing, that they do not wish to receive or share information. For example, if upon initial contact with a First Nation a response is received indicating that there are no concerns relating to the proposed activity, then no further communication is required. If concerns are raised or the First Nation requests further information, then the proponent should offer to meet in order to exchange information.

If a First Nation indicates that it opposes a proposed activity but will not engage in an information exchange with the proponent, the proponent should advise the Ministry headquarters office (Appendix A). The Ministry will request from the proponent an assessment of the details of the First Nation’s aboriginal interests or treaty rights as known by the proponent and what, if anything, the proponent proposes to do to address potential adverse impacts on those interests.

If the First Nation raises questions or concerns and does engage in an information exchange with the proponent, then the time and effort allotted to the information exchange and related meetings will be dictated by the extent of these questions and concerns. Note that all efforts should be documented and records kept.

2.4 No Response from a First Nation

If there is no response from a First Nation after reasonable efforts at contact have been made, alternate sources of information are to be used to identify potential aboriginal interests or treaty rights. These are to include:

• for forest land, information provided in Forest Development Planning consultation processes (contact the Ministry of Forests and Range);
• cultural heritage overviews (Ministry of Forests and Range);
• archaeological overview studies and archaeological impact assessments (contact the Ministry of Tourism, Sports and the Arts);
• local knowledge.

2.5 Addressing Potential Infringements to Aboriginal Interests or Treaty Rights

Proponents will need to consider and address any potential impacts related to asserted aboriginal interests or treaty rights that are brought to the proponent’s attention by a First Nation, or by the proponent’s own research if no response is received. The proponent should obtain comments from the First Nation on any proposed alteration to pest management activities that the proponent designs to address potential impacts on aboriginal interests and treaty rights that have been identified.

In all cases, there should be a record that the proponent has considered the potential impact of pest management activities on the aboriginal interests or treaty rights and has addressed any impacts identified through consultation. Where a proponent has questions about addressing First Nation concerns (such as how to alter a pest management plan), those questions should be communicated to the Ministry headquarters office (Appendix A) with as much lead time as possible before a proposed pesticide use.

2.6 Record Keeping

In addition to the record keeping requirements under the IPMR, proponents should maintain accurate and complete records specific to consultation with First Nations. All efforts to contact or communicate with a First Nation and notes on the information exchanged with respect to a proposed pest management activity should be documented and included in these records.

See Appendix D for a list of the types of information for which records should be maintained.

2.7 Submission of Consultation Report to the First Nations and the Ministry

In order to facilitate Ministry consideration of the adequacy of consultations and of the proponent’s responses to issues raised, the proponent must prepare a report that describes the consultation process and outcomes. A copy of this report is to be submitted to the First Nation(s) with whom consultation was conducted and to the Ministry prior to initiation of a pesticide use (see section 3 below for timing of submission of this report). When the report is sent to a First Nation, a letter is to be included that indicates to the First Nation that it may submit comments or concerns regarding the report to the Ministry.

Appendix E contains a template for preparing a First Nation consultation report.

Appendix F contains a template for preparing the letter that is to accompany the Consultation Report when sent to a First Nation for their review.

The Ministry will review the consultation report and look for indications the proponent has adequately carried out the consultation steps and, where appropriate, has addressed any issues concerning adverse impacts of proposed pest management activities to the aboriginal interests or treaty rights asserted by the First Nation.

3. Operational Implementation

This section outlines the operational aspects of First Nation consultation in relation to requirements under the IPMA and IPMR.

Pesticide use is authorized through Pesticide Use Notices, Licences and Permits. These authorizations are described below, together with guidelines on when the consultation steps outlined above are to be conducted.

3.1 Pest Management Plans and Pesticide Use Notices

Pest Management Plans and Pesticide Use Notices are required by a person (including a corporation or government Ministry) proposing to conduct a large scale pest management program, including the following:

• vegetation management on private or public land used for railways, public utilities, pipelines or roads when more than 20 ha is treated per year;
• vegetation management on public land used for other industrial operations when more han 20 ha is treated per year;
• management of forest pests on public land when more than 20 ha is treated per year;
• management of noxious and invasive weeds on public land when more than 50 ha is treated per year; and
• management of mosquitoes on public land (any treatment of adult / flying mosquitoes and when more than one ha of water is treated for larvae / wrigglers).

A proponent is to prepare a draft pest management plan, conduct public consultation regarding that plan, amend the plan or take other actions as appropriate in response to comments about the plan and then submit a Pesticide Use Notice to the Ministry. Proponents who submit a Pesticide Use Notice are registering with the Ministry that they have conducted consultation about their Pest Management Plan and have finalized their Plan.

On registration, a copy of the plan must be made available for viewing to any member of the public on request. The plan may be audited by the Ministry for compliance with regulatory standards. The IPMR has standards for:

• the content of the plan;
• requirements for conducting consultation;
• environmental and human health protection; and
• record keeping and reporting in respect of consultation and pesticide use.

The Pesticide Use Notice must include information on the general area in which pesticides are to be used, the types of pesticides to be used, the person or company responsible for the pesticide use and contact information for viewing the pest management plan. The IPMR also specifies [section 26(b)] that the proponent is to submit with the Pesticide Use Notice a description of any actions the proponent proposes to take in response to comments received during consultations.

Before the Ministry confirms receipt of a Pesticide Use Notice, the Ministry must be satisfied that the proponent has conducted consultations as required under the IPMR and has proposed adequate actions to be taken in response to comments received during consultations. The Ministry must issue a confirmation if satisfied that all regulatory requirements are met. The term of the Pesticide Use Notice can be up to five years, as requested by the proponent.

First Nation Consultation
The Ministry will expect a proponent to follow these First Nation consultation guidelines before submitting a Pesticide Use Notice, where adverse impacts to aboriginal interests or the exercise of treaty rights may occur as a result of a proposed pesticide use.

The IPMR (section 61(2)) specifies that communication with an individual or member of an organization or community who may be significantly impacted by a proposed pesticide use under a plan, must commence at least 45 days in advance of submitting a Pesticide Use Notice. In the Ministry’s experience a longer time frame may be required to carry out consultations with First Nations, especially if meetings, review of potential impacts, or reviews of how to address potential impacts on asserted aboriginal interests or treaty rights are required. Proponents should initiate consultation early enough to ensure the consultation steps in this guideline can be completed before submitting the Pesticide Use Notice.

When the Ministry receives the Pesticide Use Notice, the Ministry will assess whether the applicant has conducted consultation appropriately and whether potential adverse impacts on asserted aboriginal interests or treaty rights were adequately addressed. To conduct this assessment, the Ministry will consider the information submitted with the Pesticide Use Notice, and will determine whether the information is adequate or whether more information is required. To facilitate this assessment, the proponent must submit a completed First Nation consultation report (section 2.7) together with the Pesticide Use Notice to the Ministry headquarters office (Appendix A).

Continuation of Consultation Following Submission of a Pesticide Use Notice
In many cases a Pest Management Plan will be for a large area and will not specify the exact sites of proposed treatment (because not all treatment sites will be known at the plan development stage). Interested individuals, including First Nations, may want to continue consultation after they can be informed of the specific treatment sites.

The IPMR allows a proponent to make an agreement during initial consultation to directly notify an individual before the pesticide use. If this is done, the IPMR [section 28(2)] specifies that the proponent must notify the individual in the agreed time and manner.

During consultation about a Pest Management Plan, a First Nation may enter into an agreement with a proponent to receive additional notification when the treatment sites are identified at a specified time period before the pesticide use (e.g., one or more days, weeks or months). This notification can be linked to the completion of consultation before treatments are conducted on those sites. The First Nation consultation report submitted with the Pesticide Use Notice should identify any such agreements.

Annual Notices of Intent to Treat
Proponents are required to submit an Annual Notice of Intent to Treat to the Ministry each year before commencing pesticide use. The Annual Notice of Intent to Treat is to specify the locations where pesticides are to be used, with a map or diagram (based on detailed maps retained by the proponent) showing features to be protected with pesticide-free zones and no-treatment zones.

When the Ministry receives the Annual Notice of Intent to Treat, the Ministry will review it for consistency with the pesticide use notice to which it relates in order to, among other things, ascertain whether any follow-up consultation was required under an agreement to notify. When follow-up consultation was required, the Ministry will assess whether this consultation was conducted adequately, as it will do when a Pesticide Use Notice is submitted. Again, to facilitate this Ministry assessment, a proponent who agreed to additional First Nation’s consultation in relation to the yearly treatments, is to submit a report concerning these consultations along with the Annual Notice of Intent to Treat using the template in Appendix E The Annual Notice of Intent to Treat and any accompanying consultation report is to be submitted to the appropriate regional ministry office (Appendix A)

The IPMR specifies that the Annual Notice of Intent to Treat must be submitted at least 21 days before the proposed date of the pesticide use. The 21 day period is the minimum amount of time required for the Ministry’s review. Where consultation has been extensive, it is recommended that a proponent submit the Annual Notice of Intent to Treat and consultation report more than 21 days in advance, if possible.

3.2 Pesticide Use Licences

Persons (including a corporation or government Ministry) who provide a service using pesticides or who conduct prescribed pesticide uses are generally required to obtain a licence under the IPMA. Most licences are issued to small companies who provide a service to landowners for managing structural pests (such as termites or carpenter ants) or to manage landscape pests (such as for maintenance of gardens). Licences are also issued to land managers for small scale vegetation management on various rights-of-way, or for small to large area forest pest management on private forest land. The term of a pesticide use licence is up to five years.

First Nation Consultation
Licensees who use pesticides to manage pests in areas where a First Nation asserts aboriginal interests or has treaty rights will need to inform themselves of consultation requirements. When a licensee provides a service to the manager of land where there are aboriginal interests or treaty rights, the licensee must check that consultation has occurred. The service licensee may be contracted to conduct the consultation or the consultation may be conducted by the land owner or manager. If the land owner or manager holds a pesticide use licence, they will be responsible directly for ensuring consultation is conducted according to these guidelines.

When consultation is necessary, the land manager or licensee (as appropriate) is to follow the consultation steps described in section 2 of these guidelines. The Ministry will forward a copy of these guidelines to licensees who are identified in the application stage as potentially having to inform themselves of consultation requirements.

Licensees are to submit or ensure the land manager submits the consultation report (section 2.7) at least 14 days before the proposed pesticide use to allow ministry review. The consultation report is to be submitted to the appropriate regional Ministry office (Appendix A). The Ministry will review these reports to assess whether the consultation steps had been followed and whether First Nations concerns have been addressed.

Consultation for Treatments on Private Forest Land
When more than 20 ha per year of private forest land managed by a single entity are to be treated by a licensee, the IPMR requires the licensee to submit to the Ministry an Annual Notice of Intent to Treat; at least 14 days before using the pesticide in each calendar year.

If consultation is required for private forest land treatments, the licensee is to submit the consultation report (section 2.7) in advance of or with the Notice of Intent to treat. The Notice of Intent to Treat and consultation report is to be submitted to the appropriate regional ministry office (Appendix A).

3.3 Pesticide Use Permits

Permits are required by a person who uses a pesticide for situations of highest public concern or for types of use for which no standards have been incorporated into the regulation. Applicants for a permit must conduct public consultation as specified by the Ministry and then submit to the Ministry a description of the proposed pesticide use and the results of the consultations.

Requirements for public consultations are specified in section 60 of the IPMR. The applicant must advertise in newspapers or may give written notice to persons who may be affected by the treatment, allowing 30 days to receive submissions. The applicant for a permit must then submit a statement of the action the applicant intends to take in response to information provided in the notice. The Ministry will evaluate the statement and decide whether additional information or consultation is required before issuing a permit or whether to impose terms or conditions on the permit that requires additional consultation in relation to First Nations consultation.

To avoid delays in the evaluation of permit applications, it is recommended that proponents conduct First Nation consultation according to the guidelines in this document and submit the consultation report along with the permit application. The report should include a discussion of how potential impacts on asserted aboriginal interests or treaty rights are to be addressed.

The Ministry will review the proposed use and consultation results and obtain comments from an interagency review committee. The Ministry can only issue the permit if satisfied that the proposed use will not cause an unreasonable adverse effect. The Ministry may specify terms and conditions on a permit to require additional consultation or to ensure that potential impacts on asserted aboriginal interests or treaty rights are addressed, as the Ministry considers appropriate in the circumstances.

4. General Ministry Oversight

If a First Nation informs the Ministry that they have concerns regarding a proposed pest management activity that have not been resolved through the consultative procedures carried out by a proponent, the Ministry will review the process and relevant information and consider whether the proposed activity may result in an unjustifiable infringement of aboriginal interests or treaty rights. If the Ministry is not satisfied that adequate consultation has occurred, the Ministry may directly address the First Nation or proponent, or both, and, with respect to any unjustifiable infringement, propose options to achieve resolution or otherwise seek to appropriately address the potential impacts on asserted aboriginal interests or treaty rights.

A pesticide use that has an adverse impact on aboriginal interests or treaty rights could be considered to be an unreasonable adverse effect or a contravention of the IPMA. The Ministry can revoke or suspend a confirmation, licence, or permit, or order the person to refrain from using a pesticide for a specified period, if the Ministry considers that a person is not complying with the IPMA or believes on reasonable grounds that this activity has caused or is likely to cause an unreasonable adverse effect.