Dutch Elm Disease – Responsibilities and authority

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Legislation

Canada

Under Canada’s Plant Protection Act, Plant Protection Regulations, the movement of both Dutch elm disease (DED) pathogens is regulated. Elms from a DED-infected province cannot be shipped to a disease-free province. Alberta and British Columbia are classified as DED-free.

Alberta

Under the Agricultural Pests Act (APA), Pest and Nuisance Control Regulation (PNCR), both DED pathogens (Ophiostoma ulmi and Ophiostoma nova ulmi) – and the European and native elm bark beetles that carry them – are named declared pests in Alberta.

Under the Act and Regulation, all municipalities, counties and MDs in the province of Alberta have the responsibility and authority to prevent and control DED. See below for how the Act and Regulation outline these responsibilities.

Municipalities without DED bylaws

For municipalities with no DED bylaws in place, the APA provides a means for enforcement. Several sections of the APA and the Regulation can be applied. It is an offence not to take ‘active measures’ and not to follow an Inspector’s Notice which can be issued by an Agricultural Fieldman, community peace officer, a municipal officer that has dual municipal and provincial appointments or a pest inspector. They all can have the powers and responsibilities outlined under the APA Section 17 to enforce the DED prevention and control to the land owner.

Inspections and notices

APA Section 10 (1) The local authority of a municipality shall appoint a sufficient number of inspectors to carry out this Act and the regulations within the municipality. (2) Two or more local authorities may, (a) jointly appoint inspectors to act within the municipalities represented by the local authorities, and (b) enter into an agreement for the sharing of the costs of the inspectors appointed jointly. Pest Inspectors can be trained in advance to identify elm wood and DED symptoms and start surveys immediately on private property if DED is found.

When issuing an Inspector’s Notice, use the PNCR Form 2: Notice to Control Pests found on page 11 must be used. Municipalities can add their municipal logo on the Form 2 but cannot change the wording. An Official Municipal Pest Inspector's Card would be issued to the appointed Pest Inspector by the municipality and must be shown upon request by the landowner. See also Schedule 1.1, Form 2 of the Pest and Nuisance Control Regulation (PNCR).

It is best to serve a notice by hand to the landowner. However, if this is not possible, then the notice can be left with someone (18 years or older) at the place of business or residence. If this is not possible, then the notice has to be mailed or posted on the infected land. In the first instance where a notice is hand delivered, the inspector can give a shorter time to rectify the issue. It is at the inspector’s judgement to decide when the pest needs to be controlled.

APA Section 20: If a third party has contravened the APA, the Minister may issue a Stop Order.

Prevention/control measures

In order to prevent or control this deadly disease, all DED prevention and control are enforceable under the APA and must be followed.

Key roles and responsibilities

Table 1. Components of a DED prevention/control management program

How the Act and Regulation apply

The Agricultural Pests Act (APA), Pest and Nuisance Control Regulation (PNCR) outline the duties and responsibilities for municipalities, Municipal Districts and Counties as follows:

Agricultural Pests Act (APA)

Section 5 of the APA “Duty of individual”

This section contains the duties to take “active measures” with respect to pests.

(2)  An owner or occupant of land or property or the owner or person in control of livestock shall take active measures to

(a)  prevent the establishment of pests on or in the land, property or livestock unless otherwise authorized by the Minister,

(b)  control or destroy all pests on or in the land, property or livestock unless otherwise authorized by the Minister, and

(c)  destroy any crop, vegetation or other matter that contributes or may contribute to the maintenance or spread of a pest on or in the land, property or livestock.

Section 6 of the APA “Duty of local authority”

This section identifies the duties of the local authority of a municipality to prevent the establishment of a pest or to control or destroy a pest in a municipality.

A local authority of a municipality shall take active measures

(a) prevent the establishment of, or

(b) to control or destroy, pests in the municipality

Section 10 of the APA “Appointment of inspectors by local authority”

1. The local authority of a municipality shall appoint a sufficient number of inspectors to carry out this Act and the regulations within the municipality
2. Two or more local authorities may

(a) jointly appoint inspectors to act within the municipalities represented by the local authorities, and

(b) enter into an agreement for the sharing of the costs of the inspectors appointed jointly.

Section 12 of the APA “Notice”

This section states inspectors can issue notices that specify the DED prevention or control measures a person must take to address a pest issue and this section authorizes inspectors to respond to cases of non-compliance. It is at the inspector’s judgement to decide when the pest needs to be controlled.

1. When an inspector is of the opinion that land, property or livestock contains or is likely to contain a pest or should be protected against a pest, the inspector may issue a notice in writing directed to the owner or occupant of the land or property or to the owner or person in control of the livestock

(a) setting out the legal description of the land affected or a description of the livestock affected and the legal description of the land on which the livestock are located,

(b) naming the pest,

(c) specifying the measures to be taken and the material, if any, to be used to prevent the establishment of or to control or destroy the pest, and

(d) requiring the measures described in clause

(c) to be taken within a specified period of time.

Section 17 of the APA “Powers of the inspector”

1. In this section, “land” does not include a private dwelling house.
2. An inspector may, for the purpose of carrying out the inspector’s duties,

(a) enter at any reasonable hour on any land to inspect the land or any buildings, property or livestock on the land,

(b) on giving reasonable notice, direct the owner or person in control of livestock to assemble and confine the livestock for the purpose of an inspection, and

(c) take specimens of a pest or nuisance and of any matter or thing that contains or is suspected of containing a pest or nuisance.

3. An inspector shall carry the identification supplied to the inspector by the local authority or Minister appointing the inspector and shall show it on request to a person owning or in charge of anything affected by the inspector’s activities under this Act or the regulations.

Section 20 of the APA “Stop order”

This section states a stop order can be issued if the Minister is satisfied that a person has contravened or is contravening the APA.

1. Notwithstanding anything in this Act, if the Minister is satisfied that a person

(a) has contravened or is contravening this Act or the regulations, or

(b) owns or operates anything that causes the maintenance or spread of a pest the Minister may direct a stop order to that person in accordance with subsection (2).

2. In a stop order, the Minister may order the person to whom it is directed to

(a) cease the contravention specified in the order,

(b) stop the operation of a plant, structure, equipment or thing specified in the order, either permanently or for a specified period, or

(c) cease the contravention under clause (a) and stop the operation under clause (b), and the stop order shall contain the Minister’s reasons for making it.

3. The Minister shall cause a copy of the stop order to be served on the person to whom it is directed, and that person, on receipt of the copy, shall comply with the stop order forthwith.
4. A person who is served with the stop order under subsection (3) and fails to comply with the stop order forthwith is guilty of an offence and liable to a fine of not more than $1000 for each day that the offence continues.
5. If the person to whom a stop order is directed fails to comply with the stop order forthwith on service of a copy of it on the person, the Minister may apply to the Court for an order directing that person to comply with the stop order.
6. If the person to whom the stop order is directed fails to comply with the Court order,

(a) the failure to comply with the stop order may be dealt with by the Court as a civil contempt of the Court,

(b) an inspector authorized by the Minister for the purpose and persons assisting the inspector may, without notice and without incurring liability, enter on any land and do any acts necessary to carry out the stop order,

(c) a civil enforcement bailiff may assist the inspector and the inspector’s assistants in enforcing their powers and duties under clause (b), and

(d) the Minister may recover by action any expenses incurred by the Crown in carrying out the stop order from the person to whom the stop order was directed.

7. The Minister may

(a) amend a stop order if the Minister considers it advisable in the circumstances to do so, or

(b) revoke a stop order,

and shall notify accordingly the person to whom the stop order was directed.

8. Service of the stop order, Court order and notification under subsection (7) shall be effected by any of the methods set out in section 12(3).

Pest and Nuisance Control Regulation (PNCR)

Section 4 of the PNCR “Transactions, etc., in pests and infested matter”

This section prohibits “dispositions” of “infestable” items. Care must be taken when transporting an elm tree positively diagnosed as contaminated with DED to the disposal site. All tree material must be covered and secured, eliminating the chance of contaminating healthy elm trees.

1. A person shall not import, purchase, sell or otherwise dispose of, transport, distribute or plant any infestable item that is infested or any pest without the prior written authorization to do so of a provincial inspector or, if the article is to be kept in Alberta, of a local inspector who is empowered to act in the local jurisdiction where it is to be kept.

Resources

See all DED forms and documents.

Contact

To report suspect DED symptoms or for more information, call:

STOPDED Hotline 1-877-837-ELMS (3567)

For compliance and enforcement issues, contact your local municipality or Agricultural Fieldman.

Related

• City of Edmonton – Dutch Elm Disease
• City of Calgary – Dutch Elm Disease