Ontario farmers must now limit their use of neonicotinoid-treated seeds to a maximum of 50% of their crop. However, exceptions can be granted to those who provide proof of issues with pests. The requirements will ramp up over two years and, by 2017, farmers who wish to buy and apply any neonicotinoid-coated seeds will have to prove a pest problem.
Ontario’s Specific Requirements
The new requirements come in the form of an amendment1 to the general regulation2 attached to Ontario’s Pesticides Act3. The amendment creates a new Class 12 for pesticides, which applies to corn and soybean seeds treated with the neonicotinoids imidacloprid, thiamethoxam, and clothianidin. Under the amended regulation, growers may only purchase and use seeds that vendors have put on the “Class 12 Pesticides List,” which is posted August of each year.
From August 31, 2015, through August 30, 2016, growers may use listed neonicotinoid-treated seeds for less than 50% of their planted field area and do nothing else. If they wish to use such seeds for more than 50% of their field area, they must complete a pest assessment report that demonstrates need. On or after August 31, 2016, if growers want to use any amount of neonicotinoid-treated seeds, they must complete the new integrated pest management (IPM) training program, prepare a pest assessment report, and sign a declaration that they have considered IPM principles.
Not having to conduct a pest assessment or prepare a report during the first year of the new program, provided that neonicotinoid-treated seeds are planted on 50% or less of the total area of where corn or soybeans are grown, serves an incentive for farmers to achieve early reductions in the use of neonicotinoids.
What Exactly Are Neonicotinoids?
Neonicotinoids or “neonics” are water soluble pesticides that affect the central nervous system of insects, resulting in paralysis and death. They were created to protect crops but many people are concerned that these substances may be spreading through water runoff or dust and negatively impacting other species.
Neonicotinoids were being directly applied to 99% of corn and 60% of soy seeds planted, accounting for almost four million acres in just Ontario. These pesticides are also widely used in canola and tree fruit operations across Canada.
What Sparked the Neonic Ban?
The Ontario Provincial Winter Loss Survey is an annual study that attempts to measure the survival rate of bees in the province over each winter. For the past 8 years, the rate of bee death has been climbing in the province. In the winter of 2013–2014 alone, 58% of the bee population died. The target for winter deaths is 15%, to achieve sustainability in a bee operation. Ontario’s legislation phasing out neonic use aims to reduce to the number of bees dying during the winter to 15% by 2020.
Are Neonics the Cause of Bee Death?
The link between bees and neonicotinoids has been widely researched but remains a contentious issue. Some studies have shown that these chemicals do have negative impacts. Such impacts can include direct death of bees, reduction in the ability of a hive to produce queens, damage to the brains of bees, or just temporary confusion of bees. Bees act very strangely when exposed to neonics: they can become disoriented, wander in circles, fall over, or simply lie on their back and kick and squirm as if intoxicated.
All of these symptoms can contribute to “colony collapse disorder,” a recently identified phenomenon characterized by vast numbers of bees disappearing from a hive and causing it to fail. A 2012 report by the U.S. Department of Agriculture and the U.S. Environmental Protection Agency stated that there is some evidence that low-level residue of neonicotinoid pesticides is harming bees. The report was clear that there had to be more field research before those findings could be considered conclusive.
The U.S. report stated that the decline in bee populations is likely due to a combination of factors, many of which are well known by beekeepers. These factors include the varroa mite and the multiple viruses it carries, bacteria, nutrition, genetics, loss of habitat, and other pesticides.
Ontario’s Minister of the Environment and Climate Change, Glen Murray, cited many of the same factors as the U.S. report, as well as climate change, but came to a different conclusion. He stated that “there is a preponderant amount of research…that suggest[s] that [neonics are] certainly a significant factor in the cause of extraordinary levels of decline in bee populations and bee deaths.”5
Health Canada
Nationally, Health Canada’s Pest Management Regulatory Agency (PMRA) is in charge of regulating pesticides. The agency began a comprehensive review of three neonicotinoids—clothianidin, imidacloprid, and thiametoxam—following the accidental poisonings of more than 200 apiaries in Ontario and Quebec during spring of 2012. The report on the study concluded that neonicotinoids likely played a leading role after being spread through contaminated dust, but that the existing science is inconclusive and more research is required.
As a result, PMRA has undertaken a general review of the safety of neonics, which may eventually result in their use being phased out. The immediate actions taken by PMRA include the release of a pollinator protection strategy document containing best practices, and the implementation of small changes to labeling regarding the specific pesticides. These same pesticides were banned in 2013 in the European Union.
European Union
The European Union enacted a two-year moratorium on the three impugned neonics after a review by the European Food Safety Authority6. This review concluded that the pesticides may pose a significant risk to the population of pollinators including bees. The report also highlighted that industry-funded research that was being used to approve the use of neonics could be flawed.
Another study that was done by the European Academies Science Advisory Council and released in April 2015 stated that “there is clear scientific evidence for sublethal effects of very low levels of neonicotinoids over extended periods on non-target beneficial organisms.”7 Non-pest species that could be affected include parasitic wasps, ladybugs, earthworms, and birds. The European Food Safety Agency clarified, for certain conclusions, that it “was unable to finalise the assessments due to shortcomings in the available data.”8 The European Union decision to ban the substances without conclusive evidence is being labeled as use of the precautionary principle.
Precautionary Principle
The precautionary principle is recognized under Canadian law, and also under a variety of international treaties. The principle states that governments should not cite lack of scientific certainty as a reason not to take immediate action. The principle was addressed by the Supreme Court of Canada when discussing pesticide regulation in 114957 Canada Ltée (Spraytech, Société d’arrosage) v. Hudson (Town):
“Environmental measures must anticipate, prevent and attack the causes of environmental degradation. Where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.”9
Opposition
The move by Ontario has been applauded by beekeepers but has faced stiff opposition from a number of parties.
The main opponent is the pesticide production industry. Industry members claim that neonic treatment of seeds is less invasive than the alternative, which is a topical pesticide sprayed over an entire orchard or field. Pierre Petelle, vice-president of chemistry for CropLife Canada, claims that “there are hundreds of studies that show that field conditions where bees are being exposed to these products…are at such low levels that they are not having impacts on colonies.”10 The pesticide industry may lose billions if other jurisdictions begin to adopt the actions similar to those taken by the European Union and Ontario.
Grain Farmers of Ontario is another outspoken critic of Ontario’s new legislation. The group believes that the amended regulation “will be highly detrimental” to farmers. Henry Van Ankum, the Chair of the Board of Directors for the Grain Farmers of Ontario, has stated that “the new regulation is unfounded, impractical, and unrealistic and the government does not know how to implement it.” He believes that this decision shows that the “popular vote trumps science and practicality.”11
Petelle has claimed that since the European Union put a moratorium on neonics, crop yields have been disastrous. However, a review of crop yields in Europe since the ban shows that while there were some regional losses in canola, yields actually increased overall for corn and sunflowers after the ban was passed. This finding was echoed by Ontario’s Minister of the Environment and Climate Change, Glen Murray, who stated that other research showed minimal impact following the ban.
Ontario’s decision has placed the province at the forefront of a controversial area of agricultural regulation. Only time will tell whether this new regulation will cause the bee population to rebound. Proponents on both sides of the issue will be watching the upcoming Ontario Provincial Winter Loss Survey carefully.
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About the Author
Thomas Walker is currently in his third year of law school at the University of British Columbia. He was a summer articled student at Fasken Martineau’s Vancouver office in 2015, and will return to the firm in 2016 to complete his articles.
1O. Reg. 139/15.
2O. Reg. 63/09.
3R.S.O. 1990, c P.11.
4The list can be found at www.ontario.ca/environment-and-energy/classification-pesticides.
5Gil Shochat and Francesca Fionda, “Proposed ban of suspected bee killer sets of massive fight in rural Ontario,” Global News (17 April 2015), online.
6Regulation (EU) No 485/2013.
7European Academies Science Advisory Council, Ecosystem Services, Agriculture and Neonicotinoids (Germany: German National Academy of Sciences Leopoldina, 2015), at 29.
8European Food Safety Authority, Media Release, “EFSA identifies risks to bees from neonicotinoids” (28 January 2013), online: EFSA.
9[2001] 2 S.C.R. 241, 2001 SCC 40 at Para 31.
10Gil Shochat and Francesca Fionda, “Banning neonics will have smaller impact on agriculture than industry estimates: leaked draft report,” Global News (21 May 2015), online.
11CBC, “Neonicotinoid pesticide use to be reduced by 80% in Ontario: Pesticides have been linked to drastic increase in bee deaths during winter,” CBC News (25 November 2014), online.