Chutter Ranch v. His Majesty the King, 2022 BCPC 221

Citation: Chutter Ranch v. His Majesty the King 2022 BCPC 221 Date: 20221013 File No: 41604 Registry: Merritt IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Civil Division) BETWEEN: CHUTTER RANCH LTD. and HAMILTON CREEK HOLDINGS LTD. CLAIMANTS AND: ATTORNEY GENERAL MINISTRY OF JUSTICE, HIS MAJESTY THE KING IN RIGHT OF THE PROVINCE OF BRITISH COLUMBIA, and MINISTER OF FORESTS, LANDS, NATURAL RESOURCE OPERATIONS and RURAL DEVELOPMENT DEFENDANTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R.C. DICKEY Appearing on behalf of the Claimants: D. Chutter Counsel for the Defendants: M.

Goodwin, articled student on behalf of C. Bargen Place of Hearing: Merritt and Kamloops, B.C. Dates of Hearing: November 25, 26 and 28, 2019, December 7 and 8, 2021 and February 25, 2022 Date of Judgment: October 13, 2022 [ 1 ] The Claimants, Chutter Ranch Ltd. and Hamilton Creek Holdings Ltd, (“Chutter Ranch”) are private land owners just outside of the Merritt area. A portion of their land is adjacent to crown range land, known as the Lundbom Commonage (“Lundbom”). Chutter Ranch also holds a grazing tenure on Lundbom and runs its cattle in this area.

[ 2 ] The Claimants argue that the Defendants have been negligent, and caused a nuisance, by failing to take measures to stop the spread of the invasive plant spotted knapweed from the Lundbom area into Chutter Ranch property. The parties agree that spotted knapweed is found both on land owned by Chutter Ranch and on Lundbom. [ 3 ] The Claimants seek damages against the Defendants for expenses they say they have incurred in an attempt to try to eradicate this plant on Chutter Ranch. This claim is limited to the period of June 2016 to June 2018. The amount claimed in damages is $28,812.45 plus interest.

This amount is calculated by adding $25,345.65 for helicopter spraying, and a further $3,446.80 for feed replacement due to an alleged reduction in forage production because of spotted knapweed infestation. Evidence [ 4 ] There was extensive evidence presented by both the Claimants and Defendants, including expert evidence on spotted knapweed, policies of the Defendants in controlling invasive plants, and specifically the control measures of the Defendants in the Lundbom area.

My review of this evidence will address the factors that this court must consider in determining the issues as set out by the jurisprudence. [ 5 ] The Claimant, David Chutter testified. His family purchased Chutter Ranch in 1977. Part of Lundbom is pasture 4 (“Pasture 4”). It is Pasture 4 that is the subject matter of this claim. Pasture 4 is situated on the north side of the Okanagan Connector. Pasture 4 has a common property line with Chutter Ranch. Mr. Chutter says Pasture 4 slopes down towards the Chutter Ranch property with several ravines and swales. Mr.

Chutter says it is from Pasture 4 of the Lundbom area that spotted knapweed has come and crossed into his property. Mr. Chutter says that streams form in the swales with the freshet with water flowing from Pasture 4 onto his land. Mr. Chutter believes that this is one of the ways that spotted knapweed has travelled from Pasture 4 to his property. [ 6 ] Mr. Chutter estimated the size of Chutter Ranch rangeland in the Lundbom area at around 12,000 acres. Chutter Ranch has, amongst other things, a cow/calf operation. Chutter Ranch is allowed to run 500 cow/calf pairs on the Lundbom.

The cow/calf pairs spend approximately six months of the year in the Lundbom area, and the other six months of the year on the deeded Chutter Ranch property. Mr. Chutter says that there may be 200 to 300 pairs go through Pasture 4 every other year to get to the range land in the Lundbom. He says the pairs do not return through Pasture 4 due to concern with spreading spotted knapweed. He says the pairs only spend between three and six days in the Pasture 4 area every other year. [ 7 ] Mr.

Chutter says that the prior and present owners of the Chutter Ranch lands had effective noxious weed programs, that included annual inspection and spot herbicide treatment. He says that when they purchased Chutter Ranch in 1977 that Pasture 4 was infested with spotted knapweed, and he believes, “well before”. He later said that there was no spotted knapweed in the Nicola Valley (a part of which is the Chutter Ranch and the Lundbom) in 1940 and that somewhere between 1940 and 1977 Lundbom was infested. [ 8 ] Mr. Chutter says Chutter Ranch in 1977 did not have spotted knapweed.

He says the spotted knapweed showed up along the Pasture 4 fence line adjacent to Chutter Ranch in the early 1990’s, and that no other area of the Chutter Ranch had spotted knapweed. Mr. Chutter is of the opinion, as a result of his observations of where the spotted knapweed is located on Chutter Ranch, and the Lundbom, that the spotted knapweed on his property must have come from the Defendant’s property. [ 9 ] Mr. Chutter says he made the Defendants aware of the spotted knapweed infestation in the Lundbom area both verbally and in writing, for 30 years, and more recently about Pasture 4.

He referred to two letters that he sent in 2013 and 2016 to representatives of the Defendants. [ 10 ] Mr. Chutter says that the Defendants in the 1980’s changed from trying to control spotted knapweed in the Lundbom with herbicides to biocontrols (sometimes also referred to as bioagents). Mr. Chutter says that as a result of this change spotted knapweed has “aggressively spread throughout much of Lundbom Commonage with some areas completely void of … native grass”. Mr. Chutter says that since the early 1990’s spotted knapweed began showing up on Chutter Ranch property.

He says that each year he hired persons to spot spray or ATV spray herbicide onto spotted knapweed on the Chutter Ranch property next to Pasture 4. They also would spot spray spotted knapweed yearly in the gravel pit area of Chutter Ranch as this was an area where a few plants would grow from the seed bank of spotted knapweed plants. Mr. Chutter says he believes that the seeds of the plant remain viable for up to eight years. Mr. Chutter agreed that the map that was entered as Exhibit 5A showed that bioagents had been released into the Pasture 4 area and just to the south of the Pasture 4 triangle. Mr.

Chutter says he has not seen any of the biocontrols in Pasture 4, but conceded that he is not an expert in this area and had not checked for bioagents. [ 11 ] Mr. Chutter says that the Claimants, starting in 2016, and again in 2017 and 2018, began applying herbicides to the affected area of Chutter Ranch. Mr. Chutter says in 2016 they sprayed 114 acres, in 2017 it was about 20 acres, and in 2018 it was 80 acres. This was done through the use of helicopters, which Mr. Chutter says is the most cost effective means to kill spotted knapweed.

He says that the helicopter spraying is not 100% effective as it intentionally misses riparian areas, trees, and shrubs. He says these areas are then spot sprayed. Mr. Chutter says the herbicide is called tordon and has a residual effect of three to five years. [ 12 ] Mr. Chutter says the helicopter herbicide spraying costs him money each year and for this he seeks damages. He says that he must incur these expenses to preserve his grasslands and his ranching business.

He says he believes the only way to stop repeated re- infestation is for the Defendants to eradicate the spotted knapweed plant and its seed production. [ 13 ] Mr. Chutter advised that he determines when his own property requires the application of herbicide treatment, and in doing so does not consider recreationalists or First Nations. [ 14 ] Mr. Chutter says, on the issue of over-grazing, that Chutter Ranch is on a range use plan (RUP) that dictates, amongst other things, the number of cattle, the length of time of the cattle in a given area, and the turn out and return date of the cattle from each area.

He says there is limited flexibility for the rancher in the RUP. He acknowledged the rancher has some input into making the RUP more workable to move the cattle from one field to another. He says the RUP is in the interest of the tenure holder as it is done in the interest of the health of the grassland. [ 15 ] Mr. Chutter, on the issue of overgrazing, says that a serious complication with the use of the Lundbom is that recreationalists use

this area and leave gates open resulting in cattle entering into the incorrect pasture. Overgrazing is an issue as the Defendants argue that the infestation of spotted knapweed can occur, and has occurred, due to overgrazing. Mr. Chutter says that there was only one occasion ten to fifteen years before in which one of his employees did not move the cattle as required. He says he also has had his cattle graze down grass too far to a height below the required level of the RUP.

He says the Lundbom also suffered a drought in the early 2009 resulting in the grasslands being in a “recovery mode”, but that since then there has been tremendous improvement. He says as a result of the drought he voluntarily reduced the number of cattle allowed in the RUP. He says the reduction was about 35% and this has continued to date. Mr. Chutter says that the Ministry assisted him in finding replacement range to make up for this reduction. [ 16 ] Mr. Chutter called Philip Youwe, who was qualified as an expert in the area of invasive plant management. Mr.

Youwe has a degree in science with a major in Botany. In 1976 he was first employed by Forest Service as a range agrologist. In 1986 he was placed in charge of the weed control program for the entire Kamloops region. This included applying herbicide and disseminating and collecting biocontrol agents for a number of weed species. In 1999, until her retired in 2011, he was the range officer in the Kamloops district. The Kamloops district does not include the Merritt area, but does deal with issues of spotted knapweed.

Since 2011 he has done consulting work although this mostly was in the area of forage supply. [ 17 ] Mr. Youwe says he walked through a part of the Lundbom and into the private land of Chutter Ranch to determine the infestation in these areas. He attended this area on only one occasion in 2017. On the range land of the Lundbom he says there was up to 50% coverage of spotted knapweed. Mr. Youwe says he observed spotted knapweed infestation on both the private and crown land with a “ … lot more weed cover on the crown land across the fence”. Mr.

Youwe says that he observed very good success in controlling spotted knapweed in the area where herbicide spraying occurred on Chutter Ranch. Mr. Youwe says he also saw spotted knapweed in other areas of the Chutter Ranch but that they were small areas and were being well managed. Mr. Youwe agreed that after herbicide treatment other invasive plants are known to take the place of knapweed. He referred to cheatgrass as one of these plants, but was unable to speak to the degree or the extent. [ 18 ] Mr. Youwe agreed that spotted knapweed is a pervasive problem and widespread within the province of B.C. [ 19 ] Mr.

Youwe says that spotted knapweed seed can be dispersed through mechanical, livestock, wildlife, or wind and small mammals. Mr. Youwe says that in a windless area the heavy spotted knapweed seed would only disperse one to two meters from the plant. Mr. Youwe said, however, that in the area of the Nicola Valley the wind could disperse the seeds “quite a distance”. Mr. Youwe’s formed the opinion, from looking at the heavily infested crown land and the adjacent private land of Chutter Ranch, that there was a strong likelihood that the Chutter Ranch spotted knapweed would come from the heavily infested crown land. Mr.

Youwe only agreed that it was possible for the seeds to have come from the private land. [ 20 ] Mr. Youwe says that biocontrol’s will never eliminate a knapweed population. He describes biocontrol as a tool in the “toolbox on integrative pest management”. He says in some cases it can be an “effective tool for spotted knapweed” but not to the point “ … where it’s controlling its distribution and its success of occupying new sites”. Mr. Youwe says that in Europe, where spotted knapweed comes from, it is controlled because of the agents that are present there.

He says there presently is 10 different agents being used in B.C. to control spotted knapweed. He says these agents are more effective on diffuse knapweed, and less so on spotted knapweed. He says that spotted knapweed continues to grow and establish on grasslands. He says biocontrols may be a long term solution but he does not believe we are there at this time. [ 21 ] Mr. Youwe says that the Crown stopped spraying herbicide on spotted knapweed on crown land in the early 2000’s. [ 22 ] Mr. Youwe referred to two studies that found spotted knapweed has an allelopathic effect on native grasslands.

He described it as the plants roots exuding a toxin that negatively affects the growth of other plants. He expressed the opinion that this allowed the spotted knapweed to out compete grassland. Mr. Youwe acknowledged that there were other studies that did not come to the same conclusion, and agreed that this was not “black and white”. Mr. Youwe admitted that he had only seen the abstract from one of the studies and that the research had occurred in a greenhouse and studied the allelopathic effect of spotted knapweed on legumes.

The conclusion was that spotted knapweed did not have an allelopathic effect on legumes. The study did not research the issue of whether it would have an allelopathic effect on other plants. The second publication he referred to was not a study at all, but rather a news story. It did not refer directly to toxins or the allelopathic effect, but rather refers to exotic plants. Mr. Youwe says spotted knapweed is an exotic plant.

I note at this time that I found his evidence on the allelopathic effect on spotted knapweed to have little weight, especially when I consider the evidence of the Defendant’s expert, Rick Tucker, on this topic. [ 23 ] Mr. Youwe agreed that broadleaf herbicides used on spotted knapweed also suppresses native forbs or dicots. [ 24 ] Mr. Youwe says that biocontrol agents attack either the seed head or the roots of the spotted knapweed.

He agreed that the spraying of herbicide on the spotted knapweed kills not only the plant itself, but also the biocontrol agents in the area. [ 25 ] The Applicants also called Bruno Mailloux. He was qualified as an expert in the area of the application of herbicides on spotted knapweed and the cause of the dispersal of spotted knapweed. Mr. Mailoux’s expertise comes from his experience in treating spotted knapweed. Mr. Mailloux applies herbicide by ground spraying and not aerial. Mr. Mailloux had 29 years of experience in observing invasive plants and applying herbicides to those plants.

This appears to have occurred, at least to some extent, in the area that is the subjective matter of this litigation. Mr. Mailloux appears to have been hired at some point to spray herbicide in this area by both the Applicants and Defendants. The Defendants hired Mr. Mailloux in 2016 to spray along some of the roads in the Lundbom and along the fence between Chutter Ranch and Pasture 4. Mr. Mailloux says he did not do the fence line as the helicopter spraying had done this. He says there were five different areas along these roads that had spotted knapweed and he sprayed them.

He says he observed heavy infestation of spotted knapweed in Pasture 4. He was of the opinion that the spotted knapweed on Chutter Ranch adjacent to Pasture 4, had come from the Pasture 4 area. [ 26 ] Mr. Mailloux says that knapweed seeds can germinate up to fifteen years later, and as such there needs to be ongoing herbicide applications and management. He says that there can be what he referred to as a “jumper”, which he described as a patch of knapweed that grows several meters away from a patch of knapweed that has been treated. He says that these “jumpers” more likely would come

from the knapweed closest to it, but that it was also possible that the plant had travelled from a plant further away. [ 27 ] The Defendants called a number of witnesses, and I will provide an overview of their evidence. Many of these witnesses were not qualified as experts although some of their evidence verged on opinion evidence. The Defendants asked, and I allowed the evidence in, for contextual purposes so that I could understand why they made decisions to act in certain ways.

This goes to the issue of whether the decisions made by the Defendants were “core policies”, and to other factors set out in the case law that will be discussed later in more detail. [ 28 ] Valerie Miller is a Provincial Invasive Plant Officer employed by the Ministry of Forests, Lands, Natural Resource Operations and Rural Development (“Ministry of Forests”). She has a Bachelor of Science in range management. She received a professional agrologist designation in 1990. She is the head of the Invasive Plant Program (“IPP”), for the Ministry of Forests.

This program has a team of 11 individuals in permanent positions, and 10 auxiliary support staff. In this capacity she also works collaboratively with persons from many other ministries in an Inter-Ministry Invasive Species Working Group (the “Working Group”). She has chaired the Working Group since 2010. Her primary role is to oversee the staff, and to work collaboratively to set the provincial program policy throughout B.C. Ms. Miller says that they have a number of different policy documents that direct their program and sets goals and priorities. [ 29 ] Ms.

Miller says in her role she reports to a Director, who reports to the assistant deputy minister, who then reports to the deputy minister. [ 30 ] Ms. Miller says that there are a number of policies that have been created and affect the government’s response to invasive species. The Working Group has created an invasive species strategic plan for crown land in the province of B.C. This strategic plan provides “overarching guidance” to all ministries from which they must operate. [ 31 ] Ms. Miller says that the plan has three primary goals: 1. To prevent the establishment of new invasive species in B.C.; 2.

To reduce the socio-economic and environmental impacts of existing invasive species in B.C.; and 3. To provide the framework and capacity for ongoing management of invasive plants. [ 32 ] Ms. Miller says these primary goals drive all provincial government invasive species management programs, projects, and responses. She describes these goals as follows: You prevent new ones from coming.

You address the early arrivals, first, to prevent them from establishing and spreading and creating harm, and then you deal with what’s already established and not spread too far by containing them and preventing them establishing farther, and then those that have already got the horse out of the gate and spread quite far, you put containment lines around, and you hit the outliers. That’s the base foundation for invasive species management. [ 33 ] Each government Ministry must use these primary goals in setting their own programs for their own jurisdiction. [ 34 ] Ms.

Miller says the Ministry of Forests has taken these primary goals and created their own set of goals. She says she is required to follow these goals and they guide their resource allocation decisions. One of these goals is meant to address invasive plants that either are in B.C. in a very limited way, or are not in but are close to B.C., and which present an extreme risk of causing significant damage. In this situation the goal is one of eradication before the plant gets a foothold in B.C. [ 35 ] Ms. Miller say another goal addresses invasive plants that have limited distribution in B.C.

She describes these plants as high risk and that there are significant areas in which they could spread. She says in this situation the goal is to contain the spread. They do this by creating containment lines with the idea that they will not allow the plant to expand beyond those lines. They will also try and shrink the containment area. [ 36 ] Ms. Miller says another goal addresses another category of invasive plant and that is ones that are “well established”. She says there are many species of invasive plants that are well established in B.C. and there is limited things they can do in this situation.

She says that as a result they focus on biological control actions. She says they work collaboratively with researchers overseas and through Agriculture and Agri-Food Canada to find insects native to where the invasive plant has come from. They look for insects and pathogens that are host specific, meaning that they will only attack the targeted weed. She says the Defendants have been doing this since the 1970’s. Ms. Miller says this research includes the study of biocontrols on spotted knapweed.

This research is being done to determine the most effective use of biocontrols on knapweed in different areas of the province. [ 37 ] Ms. Miller says in total they have 13 different biocontrols for spotted knapweed. She says the research shows the seed head flies reduce seed production in knapweed by at least 70%. She says one of the good things about biocontrols is they can be placed in one area and over a period of time they will disburse quite far and find other patches of the plant. They will not, however, eradicate spotted knapweed.

She says in the long term they will impact the health of the plant such that native plants can compete with and push the invasive plants out, or “ … at the least reduce their stature and their density so they are not really impacting much”. Ms. Miller says that the province has invested 1.3 million dollars in each of the thirteen biocontrols in ensuring they are effective. She says it takes from seven to ten years from when they start looking at an agent to its introduction into the Province.

She says that with the successful biocontrol program the amount of seed produced by a spotted knapweed plant is vastly less than what was historically produced, but not completely eliminated. She says seed production in the spotted knapweed is down 90 to 95 percent on a lot of the sites where biocontrols are present. [ 38 ] Ms. Miller says spotted knapweed falls within the “well established” category of invasive plants. She says as a result they have created a containment line that covers most of southern B.C., generally reaching from the southern border north to Williams Lake.

She says in northern B.C., and other areas outside the line, they fund aggressive treatment of spotted knapweed through the use of herbicides, mechanical, or manual treatment. The method used is dependent on the site as not all sites are suitable for herbicide treatment. Within the

containment line, of which the Lundbom is found, the approach is to primarily use biocontrols and range land practices. There is a pilot project in Lundbom in which herbicides are being applied (non-aerial). Ms. Miller says the main thrust of herbicide use in this area is to target vectors along transportation corridors. [ 39 ] Ms. Miller says that they will never eradicate spotted knapweed but the hope is to reduce the population to a low enough density to reduce its impact. She says the hope is to hold, and possibly push back, the containment line, but that this takes significant resources.

She said it is impossible to eradicate spotted knapweed, unless she had the budgets of health care and education for the next ten years. She says the spotted knapweed is spread too far, there is too many plants, and the plant has been here too long. She says that spotted knapweed is insignificant in terms of the population and its impact on values. She says they would like to reduce the population of the plant to the point where it’s not directly impacting critical values across the landscape. [ 40 ] Ms.

Miller says the values considered in managing invasive plants include habitat, natural resources, species at risk, recreation, culture and agriculture. She says cattle ranching is also one of these values, and the challenge is balancing all of these values with invasive plant management and budgetary allocation. She says that they discuss these issues with other stakeholders, which include ranchers, NGO’s, the general public, timber companies, hydro companies and other Ministries. [ 41 ] Ms. Miller was referred to a map of B.C. setting out the current infestation of spotted knapweed in the province.

She says that presently knapweed has infested 64,000 hectares, and has a potential range of 80,000 hectares. [ 42 ] Ms. Miller says her staff monitors spotted knapweed in the Lundbom area. [ 43 ] Ms. Miller says the province also has created a B.C. Invasive Species Early Detection and Rapid Response Plan (“EDRR”). It was developed by the Inter-Ministry Working Group. The EDRR sets out how the province is to respond to new incursions of invasive species into B.C. She says preventing introduction of invasive species is the most cost effective method of their management.

She says that immediate eradication is the primary goal in this area. She says that the province will do a risk assessment to help in their determination of the resources and management required for a successful response. The EDRR sets the different steps that must be taken with new incursions of invasive species. Ms. Miller says that the stopping of new incursions of invasive plants is their top priority both with resource allotment and staffing. [ 44 ] Ms. Miller says she is given a limited budget each year and must work within that budget.

She says her budget currently is $750,000 annually, and that in the last three years this has been topped up by $400,000 per year to specifically address the Thompson- Nicola Regional District area Invasive Plant pilot. This pilots main focus is to address spotted knapweed in the rangeland of the Nicola Valley, and the whole area of the Thompson-Nicola Regional District area. The $400,000 budget goes primarily (90%) to the application of herbicides and mechanical measures in this area.

A part of this has also been allotted to research of a broader application of herbicides to address the knapweed situation on the grasslands. The application of herbicide is by backpack and all-terrain vehicles. She says the Ministry has applied herbicide to Pasture 4 in both 2017 and 2018. [ 45 ] Ms. Miller notes that for eradication of spotted knapweed to occur on a broad scale, herbicide must be applied to spotted knapweed annually for a period of 20 years. She says it requires this annual application to kill any of the plants that germinate.

She says the seed bank of the spotted knapweed can germinate up to 20 years after the plant has been killed. [ 46 ] Ms. Miller says that she and her staff have observed in areas where herbicide has been applied to spotted knapweed that another invasive plant, cheatgrass, fills in. Ms. Miller says she has observed this to occur on the Lundbom. [ 47 ] She says they may also receive a budgetary top up of $1.7 to $2.0 million which they receive at the fiscal year end from savings in other departments. She says this limited budget does not allow her to eradicate all invasive species.

She says this means that they need to prioritize and focus on the invasive species that they consider the highest priority. This may include moving resources from managing the established invasive plants to resource an attack on a new incursion of invasive plants. [ 48 ] Ms. Miller says that there are over 300 invasive plant species that could be a threat in B.C. Risk assessments are done on each of these species. She says that they have created a list setting out the highest risk invasive plants. This list is called the B.C. Proposed Prohibited Noxious Weed list, or the EDRR list.

These are the plants which are the top priority of the EDRR. Ms. Miller says for a plant species to be on this list there must be a possibility of it being eradicated. [ 49 ] Ms. Miller says that in addition to the EDRR list is the top 25 list. The top 25 list sets out established invasive plants that they want to manage by reducing their impact in the Province.

She says in the different regions of the Province they do an assessment of the plants on the top 25 list within a region, and this is then used as a budget allocation tool to determine funding to the different regions. [ 50 ] Spotted knapweed sits at number 15 on the top 25 list. She says the reason it is at number 15 is because of the risk that it has to areas outside the containment line (as described earlier). She says generally in recent years funding has run out at around number 15 on the top 25 list. [ 51 ] Ms.

Miller says they also have created an Invasive Plant Pest Management Plan (“PMP”) for provincial crown lands. This PMP is required to apply herbicides to invasive plants, as per the Integrative Pest Management Act and Regulations. Ms. Miller says to have the PMP confirmed by the Ministry of Environment they must do extensive consultation with First Nations and the public. Ms. Miller says they must have a confirmed PMP before they can apply herbicides to any invasive plant on crown land.

She says that there are a number of tools for addressing invasive plants, and in creating the PMP these different options must be considered. She says the PMP for the southern interior region guides the use of herbicides, and referred to the following

section of the PMP: All herbicides that are applied under this Pest Management Plan are to be applied selectively on a spot treatment basis to suppress invasive plants with the goal of reducing herbicide use on each site over time. … Following careful consideration of the use of the IPM [ Integrated Pest Management treatment options] herbicides are used when no other method of control is practical or effective. [ 52 ] Ms. Miller says that by law they are only allowed to spray up to a one and a half metres around a plant. She says their current

policy is to not use aerial spraying of herbicides to address invasive plant species. She says if they did broadscale herbicide applications they would be impacting other public values, including forage, First Nations, culturally important species, recreation, biodiversity, water quality, and timber. She says they protect these other values by doing spot applications. She says they also do not have the budgetary resources to do aerial spraying. [ 53 ] Ms. Miller says that the Ministry of Transportation also delivers what is known as the Good Neighbour program.

This program is intended to create a buffer between crown land and private land treated with herbicide, by applying herbicide on the crown land to create a buffer between the two. This is meant to minimize the likelihood of additional seeds coming from the crown land and re-infesting the area treated on the private land. [ 54 ] Ms. Miller says that during the period in which damages are claimed in this action (2016 and 2017), the Ministry in the Lundbom area treated spotted knapweed by the use of biocontrols, with occasional spot treatment of herbicides.

She says there are other invasive plants in the Lundbom area that rank higher in priority than spotted knapweed on the list of 25. Ms. Miller says that she has been in the Lundbom area and has observed bioagents present on spotted knapweed including both a seedhead weevil and a root attacking weevil. [ 55 ] Ms. Miller was asked in cross what the Ministry defined as control of invasive plants. Ms. Miller pointed out that control is not defined within the Weed Control Act or its Regulations. Ms. Miller says that when they talk control they are referring to a particular location.

She says that the goal of control is to have a plant not reproduce or spread from its location. It is not necessarily killing the plant. Ms. Miller said the following: Effective long-term control means using a science based approach to identifying highest risk species, at risk locations, and implementing annual plans to address those that are consistently applied over time so that you get to success of containment and control of those targeted species with the resources that you’re given every year. [ 56 ] Ms. Miller was referred in cross to

Schedule B of the Weed Control Regulations. This is a document that weed inspectors complete and provide to a landowner setting out the actions the landowner must take. On this

Schedule there are four options provided to the private landowner to control the identified weeds. The weed inspector may select one or more of these options. They include the following: eradicate the weeds, prevent the weeds from producing viable seed, prevent vegetative propagation of the weeds, or suppress the growth or vigour of the weeds. Ms. Miller says this does not define “control”, but rather simply sets out a number of requests that the weed inspector can make of a landowner. This

Schedule is not specific to spotted knapweed. Ms. Miller says which option would be used would be dependent on the species, where it is on the priority list, its risk, how widely dispersed it was, the site at which it is found, and if any controls are being applied in the area. [ 57 ] Crystal Chadburn testified on behalf of the Defendants. She is employed with the Ministry of Forests and is a senior invasive plant specialist. She is a professional agrologist and has her Batchelor of Science in Environmental Science and Biology.

She works with the Ministry of Forests invasive plant team and is part of the Inter-Ministry Invasive Species Working Group. Ms. Miller presently is her supervisor. Ms. Chadburn’s focus is more operational, but also involves strategic planning involving budgeting and prioritization of invasive plants. [ 58 ] Ms. Chadburn from 2010 to 2019 was the environmental roadside manager for the Ministry of Transportation. In that role she was involved in setting the policies for vegetation management of which a large

part is invasive plant management. She also determined the allocation of the budget for three different programs, including the Invasive Plant Management Program. [ 59 ] Ms. Chadburn described in her evidence, much as Ms. Miller did, the Defendant’s management of invasive species in the Province of B.C., including the creation of policies, priorities, goals, and strategies. Ms. Chadburn says it is really important in determining prioritization that one look at this on a provincial scale, rather than regionally. [ 60 ] Ms.

Chadburn says that within the containment lines they will, in certain cases, treat spotted knapweed with herbicides. She says the priority for this would be any vector areas, gravel pits for the Ministry of Forests or Ministry of Transportation, and for recreation sites. She says these areas would have priority over broad area base treatments. She said that a concern in using herbicide treatments in grasslands in the southern region is the invasive plant cheatgrass. She says that cheatgrass moves in to areas after the removal of knapweed.

She says cheatgrass can cause severe impacts to the “ … whole fire regime and under climate change it’s a very big risk”. [ 61 ] Ms. Chadburn says that the potential range for spotted knapweed is 88,172,767 hectares, and presently only about 1% of that area is infested. She said that the containment line for spotted knapweed, referred to by Ms. Miller, has now been expanded to the north taking in an area along the highway to Quesnel. [ 62 ] Ms. Chadburn says that aerial spraying of herbicides is not allowed under the Integrated Pest Management Act or Regulations without a permit.

She says the first step is to get the professionals to believe that aerial spraying is the preferred treatment, as there are risks involved in aerial applications. She says to obtain a permit would also require public and First Nations consultation. Ms. Chadburn referred to the Pest Management Plan for the Southern Interior Region for the period of 2019 to 2024, in which there is more defined protections than previous plans for First Nation interests. This plan now refers to the protecting of traditional food, and medicine gathering in culturally significant areas.

She says presently they do not have any aerial permits for invasive plant management in B.C. on Provincial public lands. She acknowledges that some private landowners will do aerial applications. [ 63 ] Ms. Chadburn says that biocontrols are a self-sustaining treatment method. She says the treatment of spotted knapweed with herbicides sets back the biocontrol treatment. [ 64 ] Ms. Chadburn also discussed the pilot project that occurred over a four year period in the Thompson-Nicola Regional District, in which a more broad based herbicide treatment program, along with other treatment options, were researched.

She says this was a political decision after discussion with the stakeholders in this area. Ms. Chadburn says that where broad scale herbicide treatment occurred, including in the Lundbom area, she observed increased density and distribution of cheatgrass. She says when non-residual herbicides were used (glyphosate) the knapweed came back just as dense, if not more dense.

[ 65 ] Ms. Chadburn agreed in cross that she has heard that cheatgrass can be palatable for cattle if grazed on in early spring. She says the problem with this is that at this time there is quite a bit of moisture in the ground and with grazing at this time you see compaction and further degradation of the area with respect to native bunchgrasses. She says it is not desirable to have cattle on crown range land early in the year. [ 66 ] Ms. Chadburn says over the past ten years she has visited Pasture 4 from six to eight times. She says that when she attends she will check plants for indications of biocontrols.

She says she has observed signs of biocontrols, including root and seed head agents, in both Pasture 4 and other parts of the Lundbom area. She says the spotted knapweed plants in the southern interior where biocontrols are used, appear smaller and less vigorous. She says that when biocontrols are well established spotted knapweed does not take over and becomes just one of many plants. [ 67 ] Sheryl Wurtz filed an Affidavit, and testified, on behalf of the Defendants in this matter. Ms. Wurtz is an invasive plant specialist employed by the Defendant Ministry of Forests.

She has a Batchelor of Science degree and has been a Professional agrologist since 2002, an Invasive Plant Specialist since 2016, and is responsible for the southern interior zone, which includes the Merritt area. [ 68 ] Ms. Wurtz directs treatment contracts, including herbicide treatment, for the management of invasive plants. She says invasive plant management on crown land is extremely complex.

She says in making decisions in this area she is required to consider and balance social, economic, environmental, land use, governments mandate for reconciliation with local First Nations, and other users of crown land including recreational users, persons with an economic interest in crown land such as ranchers, species at risk, sensitive ecosystems, and traditional Indigenous uses of crown land. [ 69 ] Ms. Wurtz says she receives an annual budget towards invasive plant management for the Thompson-Nicola Regional District (“TNRD”). This includes herbicide treatment, and the monitoring of invasive plants.

She says the budget varies from year to year but in 2016 was $110,000. She says in 2017 the budget increased significantly for the TNRD because of additional funding for a pilot project. She says the pilot ended in 2021 and her budget has decreased significantly to $30,000, plus an additional $45,000 that went to a private company to do invasive plant treatment. She says this budget is for the treatment, management and monitoring of numerous species of invasive plants on crown land. The land area she is responsible for in the TNRD, under the Ministry of Forests jurisdiction, is 3,065,810 hectares. [ 70 ] Ms.

Wurtz takes direction on her invasive plant management from several broad level policy documents. These policy documents include the Invasive Plant Program Strategic Plan, the Invasive Plant Pest Management Plan for the Southern Interior, and the “Top 25 Invasive Plant Species – Crown land priorities”. [ 71 ] Ms. Wurtz says that in November of 2016 she created a progress report with respect to invasive plant management in the Lundbom area. She recommended the following steps be taken: 1. Holding Mr. Chutter to his grazing plan to ensure each pasture on Lundbom Commonage receives enough rest; 2.

Installing signs instructing off road vehicles to keep off the grassland, to prevent spread of spotted knapweed seeds; 3. Spraying roadsides and recreational trails; and 4. Releasing more biocontrol agents in sites with heavy spotted knapweed infestations. [ 72 ] Ms. Wurtz says that her records indicate that biocontrols were released in the Lundbom area between 1992 and 2015, but that the releases did not occur in or near Pasture 4. She says that the bioagents travel and can cover a lot of ground over a short period of time.

She says she has observed bioagents in areas far from their actual release point. [ 73 ] She says she did not find a record that the Lundbom area was treated with herbicides in 2015, although she says there may have been some sites treated along the roads. Ms. Wurtz agreed that the Defendants stopped extensive herbicide spraying in the Lundbom area in the 1990’s, but that during this time chemical treatments were done on private lands in this area. On this last point she was unsure if this occurred in 2015 or 2016. [ 74 ] Ms.

Wurtz says herbicide treatment was part of a contract in the Pasture 4 area as part of the Good Neighbour program. She says this contract was meant to support the work that was being done by Mr. Chutter, and included herbicide treatment along an old road that crossed Pasture 4 and went into the Claimant’s property. [ 75 ] Ms. Wurtz says since 2016 the Ministry of Forests has primarily used herbicides to spot-treat spotted knapweed in the Lundbom area. The focus was on treating areas along roads and service roads as these were considered the primary vectors for the spread of invasive plants.

She says they also sprayed small patches of grassland on a trial basis. In 2017 the Ministry of Forests treated the same areas as in 2016, and added some new treatment sites along roads and recreational trails. In 2018 they again treated the areas sprayed in 2017, and added additional areas along roads and recreational trails. [ 76 ] The Ministry of Forests in 2017 also treated the boundary between Chutter Ranch and Pasture 4 with a 10 meter wide buffer on the crown side of the property line. This was done as part of the Good Neighbour Program. This area was again treated in 2018 and 2019. [ 77 ] Ms.

Wurtz says that in 2017 she monitored the herbicide treatment done in this area and found a complete lack of invasive plants and forbs on treated sites. She says she also found, however, that many of the sites had been replaced with cheatgrass. The treatment in 2016 had been done by Bruno Mailoux. She says she also observed that certain areas on Pasture 4 appeared to not have been treated. She says she asked Mr. Mailoux about this and he said he did not treat the area as it was too steep. [ 78 ] Ms. Wurtz says a pilot project was launched in 2017.

The pilot was a three year strategy for crown land invasive plant management in the TNRD. This was to include treatment, monitoring and research of invasive plants in this area. The Ministry of Forests partnered with other stakeholders in the pilot. The pilot was extended for a further year into 2020, and ended in 2021. She says the pilot

provided her with additional funding and allowed her to allocate a larger budget to more invasive plant species, including a greater focus on lower priority more well established species such as spotted knapweed. [ 79 ] Ms. Wurtz says she is aware that spotted knapweed has been present in the Lundbom area since the 1960’s or 1970’s, but she was unable to say how far back Pasture 4 had spotted knapweed. [ 80 ] Grahame Gielens was called by the defendants. He is an Environmental Roadside Manager for the Ministry of Transportation. He has his Master of Science degree in plant agrology.

He was hired in the role of Assistant Environmental Coordinator in 2017, and part of his responsibilities was to oversee the pilot TNRD Invasive Plant Management Program. He says it was started in 2017 and then was extended into 2020. He reported to Crystal Chadburn. [ 81 ] Mr. Gielens says this pilot increased the funding for the TNRD for invasive plant management. He was involved in a number of aspects of this program, but he was mostly involved in the Linear Treatment and Good Neighbour programs. Mr.

Gielens says the Linear Treatment program was an attempt to treat spotted knapweed with herbicides along stretches of roadside. He says the Good Neighbour program was meant to treat spotted knapweed with herbicides on crown land where it bordered on private land and where a private landowner had done aerial spraying. [ 82 ] Mr. Gielens says he was also a member of the Thompson-Nicola Invasive Plant Management Committee (TNIPMC). He says TNIPMC involved many stakeholders including land managers, Ministries, various non-profit organizations involved in conservation, and First Nation representatives.

He says this group would come together to discuss and determine overall priorities and strategies in this area. [ 83 ] He says that there were many factors to consider in determining where these programs would occur. He says this would include the top 25 list in determining the species to be targeted, and the characteristics of the area in determining the location where the treatment would occur. He says with respect to spotted knapweed it was one of the focuses of the Linear Treatment program and Good Neighbour program. He says spotted knapweed was very widespread.

He says they wanted to minimize the impact of spotted knapweed where they could and where they had the budget to do so. [ 84 ] Mr. Gielens was referred to a map setting out herbicide treatments and invasive plant surveys in the Lundbom area in 2015 and 2016. These treatments included areas along the roadways in Lundbom including treatments down near Pasture 4. Further maps were referred to indicating treatments that occurred in the Lundbom area in 2017 through 2019. This included repeat and new treatments of the roadways and treatments pursuant to the Good Neighbour program in the Lundbom.

This included repeat of treatments in the Pasture 4 area. [ 85 ] Mr. Gielens testified that he attended the Pasture 4 area in the early part of December in 2021. He says he observed the spotted knapweed plants were smaller than he would have expected. He says he pulled a number of the plants looking for signs of biocontrols. He says he found evidence of biocontrols both in the root and seed heads of the plants from that year, and from the seed heads in previous years.

He says of the plants he opened up he found evidence of biocontrols in most if not all of them. [ 86 ] Susan Turner testified on behalf of the Defendants. She is a biocontrol specialist with the Ministry of Forests, and has been since 1994. In this position she oversees the biocontrol for the Province of B.C. She is a professional agrologist. [ 87 ] Ms. Turner says that the intention of using biocontrols is to target invasive plants to reduce their ability to proliferate and to decrease the plants vigor. She says that research of a biocontrol takes approximately eight to ten years.

She says the goal is to decrease the target plant species to a level that the “… native horticulture, crops can coexist and proliferate together, but we can never eradicate with biocontrol”. She says the hope is with the use of biocontrols the invasive plant can be reduced to a point where it no longer has an impact. [ 88 ] Ms. Turner says that biocontrols and herbicide treatments are at odds with one another. She explained that herbicide treatments kill off the plant resulting in the biocontrols being removed.

She says if the seeds of the dead plant germinate and grow then there will be no biocontrols to attack the plant. She says in this situation the plants would then grow without the biocontrols reducing the plants vigor or seed making capabilities. She says they would have to then re-introduce biocontrols to the area to again manage the invasive plant. [ 89 ] Ms. Turner says that she has observed that in areas where cattle overgraze native grasslands it reduces the grasses ability to compete with spotted knapweed.

She says where the number of cattle is reduced the native grasslands and plants will increase. [ 90 ] Ms. Turner says the use of biocontrols is a long term process and can take over 30 years for the equilibrium to occur. She says they have found prolific numbers of biocontrols in the seed heads and roots of spotted knapweed. She says research is monitoring the use and spread of the agents throughout the province of B.C. She says this requires waiting and she believes that in time there will be a “landscape change”.

She says that this process could be interfered with by treating the plants with herbicides as it would remove the biocontrols and she believes would result in more spotted knapweed plants. Ms. Turner explained her role in this process is to get this information to others so that this information can be part of the decision making process. [ 91 ] Ms. Turner advised that she had been involved in releasing biocontrols into the Lundbom area for many years.

She says that a seed head fly was the first biocontrol released in a few sites, but that the fly then spread throughout the Province including into the Lundbom area. She says the fly has been in the Lundbom area for 30 years. She says there has been numerous releases of biocontrols in the Lundbom area, but that she has also observed biocontrols in Lundbom that were released in other areas. She says her review of the research on the effect of the biocontrols in the Merritt area on spotted knapweed is for the “… plants to crash as a result of the – biocontrol agent feeding”. Ms.

Turner based this on her observations of four different areas within the Lundbom area in 2015 and 2016. She says they observed on average 3.54 agents per seed head, and that 95% of the seed heads observed had insects in them. She says they also counted the seeds in the soil and found a significant decline in the number of seeds in the soil as compared to the literature from old studies. [ 92 ] Ms. Turner was referred in cross to a document authored by her, with others, titled “Spotted Knapweed Biological Control in

Lundbom Commonage”. She agreed with the statement from that document that reads as follows: In B.C. Lundbom Commonage Grasslands, spotted knapweed exists in dense patches, despite the prolific presence of biological control agents that have been released and have spread in the area for potentially 35 years.

Biological control agents will not eradicate the target invasive plant population but are intended to decrease the quantity below a deleterious threshold. [ 93 ] She says that with the continued use of biocontrols in this area the density of the knapweed will continue to decrease so that other plants are able to be there. She says, however, that knapweed may continue to move its “outermost limits”. [ 94 ] Ms. Turner had not been to the area of Pasture 4.

She did say, however, based on her experience in this area she was confident that the biocontrols would be throughout this area, unless there had been herbicide spraying in the area. She says that if there was such spraying this would kill the plants the biocontrols were living on and as such reduce the number of biocontrols. [ 95 ] Ms. Turner says that she observed the spotted knapweed picked by Mr. Gielens in Pasture 4. She looked at these plants and found seed larvae and flies, and seed and root weevils. She says she found very little seed in the seed heads. [ 96 ] The Defendants called Francis Njenga.

She is a Rangeland Stewardship Officer for the Ministry of Forest. She has been employed in that position since 2018 and has her masters in Range Management. She is responsible for range ecology and practices across the Province of B.C. [ 97 ] Ms. Njenga testified that cattle grazing is a “disturbance”. She says this means it disrupts normal plant growth patterns. Some of the factors include the extent of the grazing and when it occurs. She says this can cause the preferred plants to decrease and the plants that are not preferred to increase. This can be either native or invasive plants.

She says one of the concerns that she has observed is where herbicides are sprayed on invasive plants. She says it may kill everything and leave empty spaces for more invasive plants to come in and fill the void. [ 98 ] Ms. Njenga says that they have two areas (called exclosures) with one in the Lundbom area and the other nearby. These areas are approximately one hectare in size. The one in the Lundbom was put in in the early 1980’s. These are areas that are fenced thereby restricting access to the exclosure. Ms. Njenga says that they compare the plants in and outside of the exclosure.

She says there is more knapweed outside the exclosures than in. [ 99 ] Ms. Njenga was also involved in a forage assessment of the Lundbom area in 2010 and 2011. The conclusion was that the amount of grazing in this area needed to be lowered. This meant that the animal unit months (AUM’s), which is the amount of forage for a cow for a month, would have to be reduced to provide less forage than what had been allocated for the area. She says she has recently been to the Lundbom area and has observed cheatgrass where broad spraying has occurred.

She says that cheatgrass is a prolific seed producer, is able to germinate twice in one year, and can change forage productivity for livestock and wildlife. She says it is an invasive plant which must be managed. She says cheatgrass can cause changes to the fire regime because it germinates early in the season, produces a large amount of vegetation, and then dries up. She says dry cheatgrass can be easily ignited and combust. [ 100 ] Jennifer Reid testified on behalf of the Defendants. Ms. Reid is the District Manager of the Ministry of Forest in the Cascades Natural Resource District.

This is a large area that includes Lundbom. She has her Batchelor of Science in Forestry and has been a professional forester since 2004. She oversees the range and grassland management in this area. She says that with range management she renews and issues new grazing licenses, reviews and approves Range Use Plans (“RUP”), and other decisions associated to the management of range tenure. She says at a high level every decision she makes requires her to consider the best interests of the people of B.C.

She says in this assessment she is required to apply a balanced approach factoring in many values, including economic, environmental, social, First Nations rights and title, and reconciliation. She says in range decisions she also works with the range tenure holder. [ 101 ] Ms. Reid says that she understands the Lundbom area is very important to First Nations for its archaeological sites and cultural plants. The cultural plants include both food and medicinal plants. Sugarloaf Mountain, which is in the Lundbom area, is a communal meeting for the Sylix (Okanagan) and Nlaka’pamux (Thompson). [ 102 ] Ms.

Reid says the Lundbom area is heavily used by recreationalists, including mountain biking, ATV’s, fisherman, campers, and back country horse people. [ 103 ] Ms. Reid was referred to the grazing license of Chutter Ranch. She describes it as setting out the allowable AUM’s for the Ranch and provides a rotation

schedule for the cattle, the location of the pasture, and the timing of the grazing. The intention behind the

schedule is to address the needs of the tenure holder and the Ministry’s need to do this in a sustainable manner. Ms. Reid says there is also a RUP that is specific to the grazing license. It includes the schedule, but also covers other issues with the range management. She says the RUP is created generally by the license holder and submitted for approval to their team. She says her professional agrologist then reviews the draft RUP and collaboratively works with the tenure holder to ensure it also meets the Ministry’s needs and concerns. [ 104 ] Ms.

Reid was referred to a Compliance Report in which it alleged that cattle from Chutter Ranch were in a pasture for 19 days longer than the scheduled provided. This occurred in 1996. Ms. Reid says this could have a significant impact but would depend on the circumstances of the breach. Ms. Reid was also referred to a Range Inspection Report from 2002 in which it is noted that cattle were in certain areas contrary to the grazing

schedule and the RUP of Chutter Ranch. [ 105 ] Ms. Reid was referred to a memo from 2011 which set out a concern with respect to the RUP and the AUM’s allowed. Chutter Ranch was licensed to have 4474 AUM’s per year. The memo raised a concern of overgrazing on the range and proposed three options to reduce the AUM’s; either a 62, 50, or 35 per cent reduction in the AUM’s. The District Manager at the time decided to reduce the AUM’s for Chutter Ranch by 35% to 2876 AUM’s per year. [ 106 ] Ms.

Reid was then referred to a letter dated March 19, 2014, which confirmed the reduction for the previous three years to 2877 AUM’s per year for Chutter Ranch. She says the letter also set out rangeland health assessments that had occurred over these three years

and the indication was that there had been some level of success. This letter included an extension of the reduction for a further three years. [ 107 ] Ms. Reid was then referred to a document titled the Lundbom Range Report 2015. She says this document recommended changes to the Chutter Ranch grazing

schedule to allow for a rest rotation starting in 2016 to “ … achieve the desired plant community within each pasture”. She says this is based on a determination of the carrying capacity of available forage within a pasture, and the ecology and the use of the pasture. She says a rest rotation may require a pasture to be rested for a period of time to allow the pasture to regrow and recover. This Report concluded from the forage supply data that the range could support 2851 AUM’s per year. She says the Report indicated that this would be a more appropriate rate and long-term assumption. She says there were also suggestions on how the

schedule could be changed to reflect pasture use to take into consideration excessive use of certain areas. [ 108 ] Ms. Reid says the grazing license for Chutter Ranch from 2017 to 2021 allowed for 2877 AUM’s per year. She says at the end of 2021 a small increase in AUM’s was recommended to allow a further 25 pairs of cows and calves. [ 109 ] Ms. Reid says when she was in her previous role as a resource manager, the Nicola Watershed Community Roundtable (“NWCR”) wanted to do some herbicide treatment within the Laurie Guichon Memorial site, which is part of the Lundbom area.

She says the Ministry’s agrologists were very concerned that this could have a negative impact on their objectives around biocontrols and spotted knapweed. She says any plans for herbicide treatment, as a result, did not proceed on a large scale. She says they did do a small herbicide treatment in this area. She says they consulted with the different First Nation bands in the area. She says some were supportive and some were not. She says the First Nation bands that were supportive of the spraying wanted it managed to take into consideration their values. [ 110 ] Ms.

Reid says that the grassland areas provide a “wonderful opportunity for grazing”, but there are many other factors that need to be considered. She says grasslands are very sensitive and as such there are many invasive plants. She says there are many First Nations issues in these areas, and the grasslands are more prone to drought based on the ecology of the sites. She says as a result it is very important that the grasslands are managed to the best of their abilities. [ 111 ] Ms. Reid, in cross, was referred to the RUP for Chutter Ranch.

She says one of the six requirements in the RUP is for the tenure holder to control noxious weeds, as follows: Continued operation of an annual spray and biocontrol program on our planted land to prevent spread of noxious weeds to/from our private land as our obligation under the Weed Act . [ 112 ] Ms. Reid noted that the RUP is prepared by the tenure holder, in “cooperation with our range agrologists”, and so the conditions of the RUP are ones that the tenure holder has supplied and agreed to.

She says the intention is to have the land owner control noxious weeds on their private property so that the land owner does not spread noxious weeds onto crown land. [ 113 ] Rick Tucker prepared a Report, and a response to the Report of the Claimant’s experts Bruno Mailoux and Phil Youwe. Mr. Tucker was called as an expert by the Defendants. He has a Bachelor of Science degree in animal science. He also has one and one-half years pursuing a Master’s degree in forage and land allocation. He was a professional agrologist before retiring in 2016.

He worked as a research technician for six years at the Kamloops Agriculture Canada research station. Mr. Tucker worked 35 years managing range lands for the Ministry of Forests, including 23 years in the Kamloops Regional office doing various activities including range inventory, legislation review, noxious weed control, biocontrol agent propagation, ecological

interpretation of grazing impacts, and advice on RUP’s. He was found to be qualified as an expert in range ecology management and invasive plant management, including species and site prioritizations, weed control methods, biocontrols, and invasive plant policies. [ 114 ] Mr. Tucker’s Report sets out much of what I have previously summarized from the other witnesses. He says the following: It is my opinion that this priority system is a reasonable approach for weed control on crown land. This approach to prioritization of funding for treatment of spotted knapweed has been in place for many years.

Thirty–five to forty years ago infested areas were small and un-infested areas were large. Biocontrol agents were few and spotted knapweed was very aggressive. New sites were given high priority and large portions of the containment budget was spent treating spotted knapweed sites. With time, as containment failed, the situation reversed. Infested area has become large and un-infested area is small and there are many biocontrol agents on spotted knapweed that have reduced its aggressiveness.

Application of the prioritization process now dictates treatment of spotted knapweed sites within containment areas should be eliminated. It is my opinion that there should be no herbicide treatment on spotted knapweed within the containment area. [ 115 ] Mr. Tucker says that if herbicide is applied to spotted knapweed that has biocontrol agents in it, then the agents will die along with the plants. The reason for the biocontrols dying is they no longer have a host to live from. This, he says, has a negative effect on weed control.

He says that herbicide treatment to a heavily infested knapweed site, without sufficient grass cover to resist weed re- infestation, in his opinion would result in more knapweed than before. Mr. Tucker says that herbicide treatment will kill spotted knapweed plants, but after the effect of the herbicide is gone, then the seeds in the soil are able to sprout and make new plants. He says the new plants, without biocontrol agents present, will grow into very vigorous plants, with many seed heads, and many seeds per seed head.

He says this will take us back to a time when spotted knapweed was extremely aggressive. [ 116 ] Mr. Tucker says that eradication of all weeds on crown land is not a reasonable goal. In his opinion an eradication policy should be “ … applied to new weed sites outside of containment areas to stop the spread of weeds in un-infested land”. He says that within the containment area a species is usually well established and eradication is neither a feasible or desirable goal.

He says that in his opinion eradication within a containment area should not be done “ … due to high cost and limited benefit of removing the weeds”. Mr. Tucker is of the opinion that the “ … combination of stress from biocontrol and competition from healthy plant communities control density and vigour of spotted knapweed plants so that it is no longer a threat”.

Mr. Tucker is of the opinion that the range condition in the Lundbom area is poor due to grazing practices. Mr. Tucker was of theopinion that cattle had been allowed to graze too long on certain pastures in the spring, and that the length of rest was too short. [117] Mr. Tucker concludes that it is his opinion that “ … the forage supply of Lundbom Commonage is lower than it could be due tograzing practices that have impaired the plant community and lowered range health”. [118] Mr. Tucker also filed a Report responding to the Report of the Claimant’s expert Bruno Mailoux.

He says that there is noevidence that spotted knapweed on Chutter Ranch originated from the adjacent crown land. He says it is not possible to tell from wherethe knapweed seeds originated. He says that knapweed plants on the private land provide an immediate seed source, while plants oncrown land would have to be transported to private land. He says that knapweed seeds are “ … large, heavy and lack sufficient papus tocatch wind and therefore typically disperse about a meter from the parent plant”.

He says further distances are achieved by ingestion oflarge herbivores, and that mule deer and cattle are the most likely vectors. He says some seeds will cross the fence from crown to privateland, but only for a distance of one meter. Mr. Tucker says that there is no evidence of a wave of knapweed plants moving onto ChutterRanch from crown land and that this suggests that the plants are being moved by vectors. He also testified that “ … having weeds nextdoor would add some difficulty but I don’t think it’s a major factor in this case.

Mostly because there are weed seeds already establishedon your private land” (this was in reference to Chutter Ranch). Mr. Tucker says that the contribution of knapweed seeds from the crownland onto Chutter Ranch is “… really dependant on the flow of cattle from that pasture into your private land”. [119] Mr. Tucker says that there are 12 biocontrol agents or insects that operate on spotted knapweed, although four of the insects havethe majority of the impact.

He says the effect of the biocontrols is to greatly reduce the plants vigour and also to reduce seed production.There would, however, be ongoing seed production. Mr. Tucker says that when biocontrols are not present the knapweed plant willproduce 500 seeds and the seeds will remain in a seed bank for from 10 to 20 years. He says when biocontrols are present the seedproduction is greatly diminished resulting in a reduction in the seed bank over time. Mr. Tucker says that the seed of spotted knapweedcan be spread by wind but only for about one meter. [120] Mr.

Tucker says there is no research demonstrating that the toxin from spotted knapweed is in a high enough concentration tohave any effect on adjacent plants or seed germination. He says the theory of the early 2000s that the toxin catechin from spottedknapweed could explain its aggressiveness, has generally been dismissed. [121] Mr. Tucker also filed a report in response to the report of Phil Youwe. He noted that Mr. Youwe observed small infestations ofspotted knapweed on the Chutter Ranch. Mr.

Tucker says based on this observation his opinion is that these plants would provide a seedsource for the continuation of spotted knapweed on Chutter Ranch. Mr. Tucker says the issue now is not about the spread of the weed,but rather about re-infestation following herbicide treatment. He says this can occur from the seeds produced by plants remaining ormissed on private land after herbicide treatment, from the soils seed bank, or from seeds transported onto private land from crown landplants.

In looking at these possible sources, he says that the plants on the private land represent an immediate source, while plants oncrown land represent a seed source at a distance that would need to be transported to the private land. Mr. Tucker says it is not possibleto say where the seeds originated from. Law (

a) Nuisance [122] The Claimants, to be successful in their claim for nuisance against the Defendants, must prove on a balance of probabilities thatthe Defendant caused a substantial interference with the Claimant’s use and enjoyment of land, and that such interference wasunreasonable in the circumstances (Antrim Truck Centre Ltd. v. Ontario (Transportation), 2013 SCC 13 , 2013 S.C.C. 13 atpara. 19). The Defendants argue that spotted knapweed is a naturally occurring hazard and not one that they created. I agree with thissubmission.

The law says that where the alleged nuisance is one of a naturally occurring hazard the Claimant must also prove that theDefendant knew, or ought to have known about the hazard, and that they failed to take reasonable steps to mitigate it (Sadowick v. B.C.,2019 BCSC 1249 , 2019 B.C.S.C. 1249, at para. 91-92). [123] I find that the evidence is clear that the Defendants knew about the hazard of spotted knapweed.

This narrows the issues towhether the Defendants caused a substantial and unreasonable interference with the Claimant’s use and enjoyment of his land, whetherthe interference was unreasonable in all of the circumstances, and whether the province failed to take reasonable steps to mitigate thehazard of spotted knapweed. (

i) Did the Defendant cause a substantial interference with the Claimant’s use and enjoyment of his land [124] The Defendants concede that the interference was more than trivial. A substantial interference with property is one that is non-trivial (Antrim Truck Centre, para. 19). I agree that the Defendant has met this threshold test.

In such circumstances the court will thenproceed to a reasonableness analysis, which asks whether the non-trivial interference was also unreasonable in all of the circumstances(Antrim, para 19). (ii) Was the interference unreasonable in all of the circumstances [125] The leading case on this point is Antrim, in which Cromwell J. stated the following (at paragraphs 39 and 40): [39] ….. The distinction is thus between, on one hand, interferences that constitute the “give and take” expected of everyone and, on the other,interferences that impose a disproportionate burden on individuals.

That in my view is at the heart of the balancing exercise involved inassessing the reasonableness of an interference in light of the utility of the public authority’s conduct. [40] Of course, not every substantial interference arising from a public work will be unreasonable. The reasonableness analysis shouldfavour the public authority where the harm to property interests, considered in light of its severity, the nature of the neighbourhood, its

duration, the sensitivity of the plaintiff and other relevant factors, is such that the harm cannot reasonably be viewed as more than theclaimant’s fair share of the costs associated with providing a public benefit.

This outcome is particularly appropriate where the publicauthority has made all reasonable efforts to reduce the impact of its works on neighbouring properties. [126] Cromwell, J., in summing up, stated that in considering the reasonableness of the interference that arises from an activity thatfurthers the public good, and taking into consideration all of the circumstances, the question for the court is whether it is“…unreasonable to expect the claimant to bear the interference without compensation” (para. 45). [127] Cromwell J., states that the question is whether the damage flowing from the interference should be properly borne by theclaimant as part of the cost of living in organized society, or should the damages from the interference be borne by the public generally(Antrim, para. 38). [128] In considering the evidence outlined above, I find that the Claimants have failed to prove on a balance of probabilities that theinterference was unreasonable in all the circumstances.

For the reasons set out below, I find that the Defendants actions were reasonableto mitigate the hazard of spotted knapweed, and that the Defendants have made all reasonable efforts to reduce the impact of its work onneighbouring properties. This does not mean that there will not be some impact or interference. [129] I find, however, that even if there has been some interference and harm to the interests of the Claimants this harm cannotreasonably be viewed as more than the Claimants fair share of the cost associated with the Defendants providing a public benefit.

Thepublic benefit of the Defendants invasive plant management is one that will take some time to complete and to see results. In themeantime, persons such as the Claimants may have to bear their fair share of the cost of the long term benefit to the public. (iii) Did the province fail to take reasonable steps to mitigate the hazard of spotted knapweed [130] I have reviewed the evidence of the witnesses for both the Claimant’s and Defendant’s.

For reasons similar to my findings andanalysis under the claim in negligence, I find that the Defendants have taken reasonable steps to mitigate the hazard of spottedknapweed. It is clear that spotted knapweed is a hazard. It is also clear that the Defendants have taken reasonable steps to mitigate thishazard through the programs referred to in the evidence. I will address this after addressing the steps suggested by the Claimant. [131] I find that the Claimants suggested steps to address the issue of spotted knapweed is not reasonable.

I find that it does not providea long term mitigation of the spotted knapweed issue. Eradication is simply not reasonable when one considers the cost, the other valuesthat must be considered in determining the appropriate steps to address this hazard, and the potential for unintended and negativeconsequences of herbicide treatment. On the latter point, I make specific reference to the expert evidence of Mr. Tucker that the use ofherbicides would negatively affect grasslands by removing the biocontrols and allowing for an increase in other invasive plants, such ascheatgrass.

I accept that if herbicides are used to treat spotted knapweed then there will be an increase in cheatgrass which will increasethe risk of wildfires in grassland areas. [132] Further, I find that the steps taken by the Defendants were reasonable to mitigate the hazard of spotted knapweed. The steps takenby the Defendants are comprehensive, thorough, fall within the budgets provided, and provide for a long term approach to the control ofspotted knapweed. [133] In

summary, I find that the Claimants have failed to prove on a balance of probabilities that the Defendants did not takereasonable steps to mitigate the hazard of spotted knapweed. On the contrary, I find that on the evidence the programs and strategies ofthe Defendants provide the most reasonable steps when considering the health of the grasslands, the long term consequences of broadbased herbicide treatment on grasslands, and other factors such as the long term health of the ranching community. [134] In conclusion, the claim in nuisance is dismissed. (

b) Negligence [135] Under the law of negligence, the Claimants must prove, on a balance of probabilities, that the Defendants owed the Claimants aduty of care, that the Defendants breached that standard, that as a result of this breach the Claimant suffered reasonably foreseeabledamages or loss, and that such loss was caused by the breach. (

i) Did the Defendants owe the Claimants a Duty of Care [136] The court must first consider whether the relationship between the Claimants and Defendants is one in which there is anestablished category from which a duty of care arises. If no established category exists, then the court must determine whether therelationship between the Claimants and Defendants is one in which a new duty of care should be recognized (Nelson (City) v.

Marchi,2021 SCC 41 , 2021 S.C.C. 41 (“Nelson”) at para. 16). [137] The Claimants and Defendants have not provided any case authority setting out that there is an established duty of care as a resultof their particular relationship and the circumstances of this claim. I note that the relationship is one of crown and adjacent propertyowner, and not two private landowners. [138] I, therefore, must determine this issue on whether a new duty of care should be recognized between the parties.

More specifically,should there be a duty of care on the crown with respect to weed control from crown land to an adjacent private landowner. [139] In Nelson, Karakatsanis and Martin JJ, for the court, state the following (at para. 17): In novel duty of care cases, the full two-stage Anns/Cooper framework applies. Under the first stage, the court asks whether a primafacie duty of care exists between the parties.

The question at this stage is whether the harm was a reasonably foreseeable consequence ofthe defendant’s conduct, and whether there is a “relationship of proximity in which the failure to take reasonable care might foreseeablycause loss or harm to the plaintiff” (Rankin’s Garage, at para.18). Proximity arises in those relationships where the parties are in such a

“close and direct” relationship that it would be “just and fair having regard to the relationship to impose a duty of care in law upon thedefendant” (Cooper, at paras. 32 and 34). [140] A duty of care can arise through a legislative scheme, if the scheme imposes a duty of care on the government to particularclaimants. A duty of care may also arise between a government body and a particular claimant through a specific relationship betweenthe parties (R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42 , 2011 S.C.C. 42, at paras. 43 – 45). [141] In Alberta v.

Elder Advocates of Alberta Society, 2011 SCC 24 , 2011 S.C.C. 24, the court looked at whether a duty ofcare arose as a result of a legislative scheme. Chief Justice Wagner, for the Court, stated that in determining whether a duty of care isowed, the court must determine if the crown and the class members were in a relationship that gives rise to a duty of care based onforeseeability and proximity. If the court makes such a finding then it must consider whether it is negated by policy considerations (atpara. 66).

Chief Justice Wagner, found after a review of the legislation that the legislative scheme at issue in Alberta created a generalduty on the crown to provide health care services, but did not impose a duty to act in relation to the class members with respect toaccommodation charges. In these circumstances, the court concluded that the legislative scheme did not impose a duty of care on thecrown. [142] Mr. Chutter argues that the Weed Control Act, R.S.B.C. 1996, c.487, and the Weed Control Regulation, B.C. Regulation 66/85,create a duty of care from the Defendants to the Claimants to control noxious w

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