18 July 2007

It's not easy being green or accountable

Note: Then environment minister Tom Osborne announced a consultation into new pesticide regulations in February 2004 to replace pesticide regs introduced the year before. In September 2005, he announced the new regs would be implemented shortly thereafter. They were introduced in April 2007.

Environment minister Clyde Jackman is in the hot seat these days and it isn't from the swelteringly humid weather.

Jackman is facing increasing public criticism for his decision to reduce the demands on the law care industry to notify people living adjacent to a property where the companies will be applying pesticides and herbicides.

Until very recently, companies were required to give written notice to neighbours within a 50 metre radius of the property being sprayed. Jackman quietly reduced the distance to a mere 15 metres. When we say quietly, we mean he changed the requirements in the regulations without any notice to the public.

There are a couple of things to notice about this.

Firstly, there is no requirement in the Environmental Protection Act that the minister notify the public to changes made to terms and conditions of a license for pesticides.

The Act allows the cabinet to make regulations and those regulations, such as the amendments gazetted on April 20, 2007, empower the environment minister to set terms and conditions of a license to hold and apply pesticides.

So when Jackman says he merely changed the terms and conditions of license [revised, added aside] - and that he did not legally need to notify people - he is correct. That's what the law provides and that's what he did. However, in using this argument that conditions are somehow not regulations, Jackman is engaging in the same game of petty semantics as Tom Rideout recently did on the Green accountability bill.

The terms and conditions are an integral part of the regulation and as it occurs,* Jackman's power as minister to set and enforce any terms and conditions result from regulatory power conferred on him ultimately by public statute. They are not merely internal administrative rules on what type of pen to use or what colour paper a form shall be printed in. The terms and conditions are integral to the license itself.

Secondly, though, and flowing from that, Jackman's actions are an all too common feature of government in Newfoundland and Labrador. Increasingly, substantive powers are delegated from the legislature to the cabinet - such as the break-up of Fishery Products International - and mandatory public disclosure as would be required legislative change is eliminated entirely.

In the case of making regulations, it is normal to give cabinet the power to establish regulations. It would extremely cumbersome to bring a bill to the legislature each time some part of the myriad regulations governing life in the province had to be changed.

However, the regulations gazetted on April 20 simply repeat the delegated authority established when the new regulations were introduced in 2003 and give authority to the minister in as broad a set of terms as possible.

Nowhere is public disclosure established beyond the historic requirement that any legislative measures take effect once published in the Gazette. How many people are aware the Gazette exists, let alone how many read it? To make that the standard of public disclosure - of accountability and transparency - in the 21st century is to sanction the passage of the Green bill in a manner the Green commission report expressly condemned.

That's really the root of the current problem: a lack of public disclosure.

Province may not have made pesticide reg changes as claimed in '05

It is important to note here that pesticide and herbicide spraying are well know issues of public health and environmental concern. They are so well known that Jackman's predecessor issued a news release in February 2004 on a public consultation on the proposed pesticide regulations. The consultation included a discussion paper outlining the issues and a consultation period of 60 days.

As it turned out, the whole business was so involved that it took 18 months to produce a news release that the amended regulations would be introduced. It is interesting to note however that there is no evidence on the provincial government website that any amendments were made to the pesticide regulations until the changes made in April 2007.

Jackman's predecessor - today the justice minister - was eloquent in his statement at the time:
"One of government’s main goals is to reduce and, ultimately, eliminate the unnecessary use of pesticides, as the public must be reminded that there are alternatives to addressing lawn problems besides using pesticides like proper lawn installation and maintenance. Actions such as banning the sale of fertilizer/herbicide blend products from domestic markets and mandatory certification and training for vendors of domestic class pesticides, which will also help educate consumers to make wise decisions on pesticide use, will indeed play an important role in helping us achieve our goal."
Calls were made by several groups, including the Canadian Cancer Society, for a ban on the use of pesticides and herbicides for cosmetic use since the products involved have possible or probable carcinogenic effects. While the government did not enact the ban, its intention to apply tighter controls and eventually promoting alternatives to pesticide use was plainly evident.

Source: Statistics Canada

There was good reason to restrict pesticide application in the province. As recent information from Statistics Canada shows, pesticide use in Newfoundland and Labrador doubled from 1994 to 2005/2006. The proposed 2005 regulations may have reduced use somewhat in the province, but further loosening of the restrictions on notification make it effectively much easier to use pesticides and that is essentially contrary to the policy goal of this administration when it introduced the new regulations less than two years ago.

Being fully aware of the likelihood of public controversy resulting from any changes to the pesticide regulations, it is astonishing that Jackman failed to make any mention of the changes introduced in April and any other decisions he made as a consequence of the new powers.

Perhaps he was afraid of embarrassment since it appears the 2005 announcement was never implemented. However, the minor embarrassment for such an admission might pale if the new regulations actually improved public protection.

As it stands, the reduced notification period does not appear to do that, at least as measured by government's stated intention in 2005. As well, the intention in 2005 of applying restrictions to use around public spaces - absent from the 2003 version of the regulations - appear to be toothless in the final version. Under the April 2007 regulations (s. 8.1), pesticides not listed as exempted or as being a reduced risk may still be applied at or near senior citizens homes, hospitals, personal care homes, licensed day care centres, parks and other open spaces and near schools either where the building will be unoccupied for at least 48 hours after the application or with a special exemption as granted by the minister.

The provincial environment minister is under fire from concerned citizens and some advocacy groups for failing to disclose changes to regulations. Maybe he felt it might be embarrassing if the changes promised in 2005 had not been implemented. Well he should be in a government which claims to be accountability and transparent as often as another government says it is "new".

But, as it turned out, Jackman is in a controversy all the same and his tortured explanations of the past few days are not helping matters.

In the days ahead, he may well come to appreciate why it would have been better that he had simply made the announcement in April in the first place.


* This marks a change. In the original version the phrase read "as a matter of law". in the absence of a legal opinion on the point, the author is not able to make such an authoritative pronouncement. The amended version more accurately reflects the situation without implicitly carrying any legal interpretation.