Integrated Pest Management

Ministry of Environment Workshop
Summary of Meeting — Integrated Pest Management and Wildlife Act
May 9 - 11, 2007 — Duncan, BC

1. Introductions and welcome to territory.

• Welcome by Cowichan tribes.

2. Integrated Pest Management:

Opening Comments from MOE:

• Definition of a pest includes:
  • Mosquitoes
  • Broom
  • Weeds
  • Plants
  • Animals
  • Insects
  • Dandelions
• "Pest Management" is defined as the tools used to manage pests — i.e. preventing rodents getting into houses, setting traps, using poisons, herbicides and pesticides.
• Pesticides are regulated by Health Canada (federal government) which reviews impacts of pesticides and determines directions for safe use. MOE certifies individuals to sell and / or use pesticides, and sets out rules around the use of pesticides.
• The Integrated Pest Management Act (IPMA) is the broad idea under which the regulations fall, and the regulations set out specific standards and rules around pest management.
• The IPMA was drafted in 2004 (passed in December 2004), just before the Supreme Court of Canada decision in Haida-Taku River, and before the New Relationship was signed and implemented. The IPMA refers to consultation in broad terms, not First Nation consultation specifically. MOE recognizes this is a problem, and developed some draft consultation guidelines and talked to the B.C. Leadership Council about those guidelines (which were completed in May 2006). The draft guidelines were sent to all First Nations in B.C. as a 'stop gap' measure until more formal guidelines were developed in consultation with First Nations.

Comments from Participants:

Lack of Capacity:

• This is a huge issue. First Nations have to deal with a huge number of referrals every month and have such limited capacity that some referrals are simply not reviewed. In order to review referrals adequately, technical advice is required and this costs money. Funding cycles for First Nations often means that funding is provided for a limited time, and then gets cut off before the work is complete.
• The proponent should pay for third-party costs for reviewing their plans. Proponents should also pay for First Nations to monitor the application of pest management tools, regardless of any government monitoring that may also take place. It is perfectly reasonable to have proponents pay for reviews that need to happen during consultation. First Nations should start to develop fee schedules and processes so that proponents will know what communities expect and regard payment as a necessity.

Lack of Trust with Government:

• First Nations have been engaged in the treaty process since 1992, and not much as changed since then. Governments have done nothing to recognize self-government and help build capacity. First Nations are still confined to reserves and most individuals do not own their own land. Governments need to start sharing power and working collaboratively with First Nations. Most legislation blocks and prevents First Nations from being self-sufficient and self-governing. First Nations spend a lot of time going to meetings and never see any progress — people are starting to feel very frustrated and there is a real lack of trust towards government.

Impacts to Cultural Sites:

• First Nations need to be informed about any impacts to cultural sites. If a proponent does not have any information about cultural uses, it is often because the First Nation has not been able to undertake a traditional use study, because there are not any resources to carry it off. Proponents need to build long-term relationships with First Nations so that issues such as traditional use areas can be communicated.

Mitigation:

• The term "mitigation" needs to be defined. The government needs to be clear that it does not simply mean justifying impacts to First Nations people, which would contradict the New Relationship document.

Monitors:

• First Nation monitors need to be employed during the spraying of any herbicides and pesticides.

Monitoring and Enforcement:

• The process of monitoring and enforcement is flawed because companies simply have to go through the process of getting their permits and making their plans, and although there may be some discussion as to what needs to be changed, at the end of the process the plans that they originally drafted are approved. Once a company gets approval, they are free to start spraying herbicides and pesticides, and First Nations have no control or voice over that process, and don't even know when the spraying might occur. It is not clear how permits are monitored once they are issued to proponents. Any commitments that proponents make to First Nations need to be enforceable by government.
• One way for MOE to determine whether a proponent has followed up and lived up to its commitments made to First Nations is to require the proponent to obtain a letter of non-opposition or letter of understanding from the Chief and Council about the pesticide plan. A proponent report is not a proper communication tool for MOE to ensure that proper consultation has happened — this can only come from the impacted First Nations.

No-pesticides Policy:

• Cowichan Tribes has a policy of no pesticides within their traditional territory. This policy stems from a story that a member told about an area where herbicides had been sprayed by a forest company, and it was found that the bones of rabbits, deer, etc. were softened because of those herbicides.

Notification Process:

• There is a flaw in the notification process for licenses in smaller areas less than 20 hectares. For those areas, companies / users have to post signs to alert people to the use of pesticides; and this is not always clear. With pest management plans (which are three-year plans), First Nations receive the three-year plan and are asked to comment on that plan, but a company's actions may change from year to year and the First Nation may not know because of the notification process. This is an issue particularly for smaller First Nations that receive a number of notifications / referrals every year. The regulations, therefore, need to be changed to make sure that notifications are clear.

Penalties:

• The IPMA legislation allows for penalties to the companies if consultation is not carried out, but this is not stringent enough, and it is not clear what would trigger MOE to stop or monitor the use of a permit because of First Nation concerns.

Private Land-owners:

• Rights of private land-owners are too broad. If a First Nations territory abuts a privately owned area, and the owners of that land get a permit for an aerially sprayed pesticide, then the First Nation has no control over that, even if there are impacts to their territory. This is a problem — owners of private land have to deal with First Nations.
• Many private land-owners do not abide by the forest practice codes. There are barriers to harvesting medicinal plants, and roadblocks and gates preventing access for First Nations to harvest the land. Slash-burning also takes place. Companies need to be accountable, even on private land. For example, water on private land may not be fish-bearing, but further down the stream it is fish-bearing and then it becomes a concern. Everything is inter-related. There are often no buffer zones around streams to protect fish, particularly on private land.

Record-keeping:

• Many First Nations have found that proponents do not keep adequate records of things such as wildlife areas, and then they start logging winter ranges that animals use, and then those animals have to travel farther distances to live. Once spraying happens, it takes two years for anything to grow back, and First Nations are not sure where they can pick berries or harvest land because they are not sure where the chemicals have been sprayed, and whether those chemicals will be transferred to the berries or other parts of the land. Proponents need to identify things like wildlife areas and berry picking areas in their plan and be accountable to First Nations for those plans.

Self-regulation:

• Forest companies are mixing chemicals and going beyond limits and guidelines set by MOE, and this creates overkill and causes people to get sick. The process leans too much towards self-regulation, and this does not work — there needs to be more monitoring and enforcement.

Training:

• MOE should incorporate a satellite training course so First Nations could manage their own territory, know what chemicals were available to them, know what chemicals were in each spray, know what was in the water, what was happening in their areas, etc. Proponents could talk to First Nations and provide necessary training so that there is real knowledge about everything going on in the territory.

Other Issues:

• Many First Nations on Vancouver Island have concerns about the railway. Some communities advised the railway that they needed funds to be able to meet with the railway and engage in their consultation process, but the railway did not agree and continued with their process. First Nations cannot assess plans without full information, so consultation has not been fulfilled in the case of the railway line. This is because there is no requirement for the proponent to pay for technical reviews of their plans, and this is a problem.

Review of Technical Working Committee on the IPMA:

• Technical Committee conducted a legal and legislative review of the IPMA and regulations.
• Technical Committee did not represent any First Nations in B.C., simply provided a technical review of the legislation and regulations as well as draft guidelines.
• Technical Committee felt it was important that the group be allowed to meet on their own without any government oversight or review. MOE agreed to this approach and the committee developed the report independently. The work of the committee was conducted in a very short time-frame, mostly through email but also through one or two in-person meetings.
• The paper was produced as a discussion paper, and was not intended to preclude further discussion / engagement from First Nations. The paper was intended to stimulate more discussion.
• The Technical Committee recommended that the IPMA and Wildlife Act discussions occur separately because the issues were so distinct. However, because of "consultation fatigue" and the number of meetings that First Nations are asked to participate in, MOE decided to combine the two processes. The First Nations Leadership Council agreed to the approach of combining the two processes.

Comments from First Nation Participants Regarding Role of Proponent in Consultation (re: "Real-life" Examples):

• One of the first things a proponent needs to do when developing a plan is to identify key ecosystem values. Maps are helpful to an extent, but they need to be very specific and include information on such things as where berries are located, etc.
• Identifying First Nations territory can be complicated — First Nations have spent a lot of time identifying territories for hunting, fishing and gathering, and there is often a lot of overlap and conflict. This is a very difficult task, and there are no easy answers. Proponents should utilize as many information sources as possible to identify First Nations territory, including on-the-ground resources.
• The permit process is often too narrow and focuses only on the impact of pesticides in a particular area. The impact of pesticides may in fact be much broader and include impacts to berries, wildlife, water systems, etc. It is not clear where First Nations can raise broader issues in the permit process.
• The Crown is obligated to ensure that First Nations concerns are addressed. It cannot be left up to the company.
• Protocol agreements and Memoranda of Understanding are valuable tools that government and industry should pursue with First Nations. These protocols and agreements enable the parties to have a clear process around communication and establishes good working relationships.
• It may make sense to attach protocol agreements with First Nations to a particular license so that those agreements travel with that license regardless of whether the company that owns the license changes. This could be done as a referral note, so that companies coming into a new license / permit would know that there is already a protocol in existence.
• Relationship-building between all groups — industry, government, and First Nations — is important. It sometimes helps to have everyone in the same room at one time, although this can be challenging to organize.
• First Nations often ask for archeological overview assessments and impact assessments, as well as traditional use studies for the area being considered by the proponent. This includes have First Nations people such as elders review information and include sacred areas. There is often a lot of information missing if cultural sites are not included in assessment. These studies often require funding.
• First Nations may also ask for site visits to ensure that cultural sites are protected.
• There is a key difference between consultation and shared-decision making, which is the promise of the New Relationship. At the end of the day, government needs to know that consultation and accommodation has occurred with First Nations, and it is not clear how this assurance is provided. There needs to be some evidence that consultation has happened.
• Relationships and communications between municipalities and First Nations needs to be clear — municipalities need to have accountability to First Nations interests as well. First Nations and municipalities often "bump heads". One example of this is "road-kill" — municipalities often try to assert that they own the road-kill, but in reality it belongs to the Crown.
• Contacting First Nations is not always sufficient because rights-holders (i.e. those holding Certificates of Possession) also need to be advised about what is taking place. Advising a Band Council is not always enough, community members also need to be consulted.
• First Nations and government need to make some strategic decisions together so that every land use, pesticide permit, etc. does not have to be considered individually. There is a need for a comprehensive land use plan that addresses strategic issues.
• First Nations generally need 30 - 60 days to deal with pesticide referrals. Day One of consultation should be face-to-face meetings, and surveys may be required if land is culturally sensitive.
• If there is an accident with pesticides or with pesticide application, First Nations need to know about it immediately.