So what does last week’s federal court win by Josette Wier, a pesticide activist based in Smithers, against Health Canada mean for pesticide regulations in Canada? Josette, with help from our Environmental Dispute Resolution Fund, won her legal challenge against Health Canada in the Federal Court. The Honourable Mr. Justice Kelen told Health Canada that:
[Ms. Wier] is entitled to a proper analysis as to whether the pesticide in issue presents an environmental risk to amphibians inhabiting ephemeral wetlands [those that are sometimes dry] which are subject to the aerial spraying of the pesticide in silviculture.
While this is good news for amphibians, ultimately the significance of the decision is in what it means for future special reviews of pesticides.
Unfortunately, Health Canada has resisted requests by members of the public attempting to initiate such a review. A request from the David Suzuki Foundation that Health Canada re-evaluate 60 chemicals that had been banned in other OECD countries went nowhere (more on this below), with Health Canada merely promising to proceed with regularly scheduled re-evaluations of these pesticides. Similarly, Josette’s request for a review was also met with a promise that her issues would be addressed in a future re-evaluation.
To the best of our knowledge, there has never been a successful request for a special review under the Act (the 3 special reviews that have occurred were initiated by Health Canada prior to the Act coming into force). Josette’s review, if Health Canada decides to initiate it, will be the first.
So what does Wier v. Health Canada mean?
In terms of substantive issues about the safety of Glyphosate-based pesticides with POEA (polyethoxethyleneamine), the federal court’s ruling is actually pretty narrow. Josette’s lawyer, Jason Gratl, made a tactical choice to focus her legal challenge on the impact of Glyphosate on Amphibians in ephemeral wetlands, an area where Health Canada’s own scientists recognized that there were possible environmental impacts. The court did not make any rulings about the health impacts that Josette raised in the original petition (one way or another).
But on the process, the decision of the Honourable Mr. Justice Kelen establishes a number of important principles to guide this and future special reviews:
- Health Canada can’t just promise to roll consideration of the special review into its next regularly scheduled re-evaluation of the pesticide. See the discussion of the David Suzuki Foundation special review request, below, for more on this crucial point.
- Where there is uncertainty about whether or not unacceptable risks exist, the precautionary principle demands that a special review be initiated. Health Canada had held Josette to a fairly high level of proof – apparently demanding (for example) that Josette prove that in vitro studies (carried out in test tubes) more reliable than in vivo studies (animal testing) – before a special review would be held – a daunting hurdle for a member of the public. Such a high level of proof before Health Canada will even review the evidence undermined the usefulness of a citizen initiated review process.
Based on the record before the Court upon which this decision was made, there is conflicting evidence that the pesticide in issue presents an acceptable risk to amphibians in ephemeral wetlands which are aerially sprayed with the pesticide in silviculture. … With opinions within the Regulatory Agency on both sides of the question as to whether the pesticide presents an unacceptable environmental risk to amphibians in ephemeral wetlands, the precautionary principle would require that the Minister initiate a special review into that issue.
- Health Canada must provide transparent and intelligible reasons in its response to a request for a special review if it concludes that unacceptable risks will not occur:
[T]he Court agrees with the applicant that the Minister’s decision is not transparent or intelligible with respect to the narrow risk at issue before the Court, and that the evidence with respect to this risk is not properly documented in the record such that it could be relied upon as the basis for the decision. …
If Health Canada goes on to hold the required special review, and to put in place legal protection for ephemeral wetlands, this will be an important win. But in the long run the real impact of Wier v. Health Canada will be a more open and accountable special review process at Health Canada.
The next scheduled re-evaluation
In 2006, shortly after the Act came into force, environmental lawyer David Boyd wrote to Health Canada on behalf of the David Suzuki Foundation, requesting special reviews of 60 chemicals, used in 1,130 pesticide products, that were prohibited by OECD countries for health and safety reasons.
Although this requirement is automatic under the Act, Health Canada refused to conduct a special review for any of the prohibited pesticides, insisting that re-evaluations that were currently underway (or would soon be underway) would consider the health and environmental risks that had given rise to the ban.
Amongst the active ingredients listed by the David Suzuki Foundation, and that are currently registered in Canada, all but 6 are part of the Health Canada’s re-evaluation program. … While a special review is meant to target a specific issue, the reevaluation of an active ingredient examines all aspects of human health and environmental risk and is based on all available information including any concerns identified in an OECD country. Since a re-evaluation will address any issue that would be the focus of a special review and more, initiation of a special review in addition to their ongoing re-evaluation is not warranted for these active ingredients.
So while Health Canada recognized that a special review could have “targeted” the specific reasons that the OECD countries had prohibited the pesticide, it was comfortable waiting for the completion of a comprehensive re-evaluation.
Keep in mind that there are cases of re-evaluations taking almost a decade to complete. One of the pesticides identified by the David Suzuki Foundation as requiring a special review was Endolsulfan. As we reported in February 2011, the re-evaluation of Endosulfan began in 2002, and the Health Canada’s recommendations (to ban its use in Canada) arrived at the end of 2010, and the pesticide will not be phased out until 2013.
One cannot help think that a focused special review, as David Boyd requested in 2006, based on why Netherlands, Norway, Sweden, and the European Union had all banned the pesticide might have saved a few taxpayer dollars and resulted in this dangerous pesticide being phased out a few years earlier.
And, according to the decision in Josette Wier’s case, that’s what the law requires too:
The Court concludes that the Minister erred in law by misinterpreting the mandatory wording of section 7 which requires that a “special review” be conducted regardless of whether a section 16 re-evaluation is planned or is underway.
I asked David Boyd what he thought of Josette’s court win. He said:
Health Canada is either ignoring or twisting the plain language of the [Pest Control Products Act] by evading their legal obligation to conduct special reviews of pesticides prohibited in other OECD nations. The only way to hold them accountable, as Josette Wier demonstrated, is by taking them to court.
While many of the pesticides listed in the David Suzuki Foundation request have since had a full re-evaluation completed, others appear to be still in the re-evaluation process, some of them in early stages. So Health Canada, in light of the Wier decision, should be examining whether a special review is now required for these chemicals. And if they don’t there may be legal consequences.
Future Special Reviews
If Health Canada implements the decision of the Honourable Mr. Justice Kelen in Wier v. Health Canada, we believe that the result will be more transparency and accountability in Health Canada decisions. We hope to see Health Canada conducting many more special reviews in the future – to help ensure that Canadians, and our environment, are not unnecessarily exposed to dangerous pesticides.
