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Taking the law into her own hands after Lemon Creek jet-fuel spill

30 October, 2014

Remember the Lemon Creek jet-fuel spill? A fuel truck, delivering jet fuel to a landing area for Ministry of Forests, Lands and Natural Resource Operations, took a wrong turn and ended up falling into Lemon Creek and spilling 35,000 litres of jet fuel.  The spill, in a pretty pristine area of the Slocan Valley, devastated fish and wildlife and compromised local drinking water.  Thousands of people were evacuated.

Dumping jet fuel into fish habitat is, of course, a violation of several major environmental statutes, but government officials seem to have taken an oh-well-it-was-an-accident view of the disaster. Which, of course, it was, but it was an accident that there is reason to believe could have been prevented. And the law has always held that punishing careless acts provides an incentive for other corporate actors to improve their behaviour.

After months of pressing the province and the federal government to do something, Slocan Valley resident Marilyn Burgoon, with financial support from our Environmental Dispute Resolution Fund, took the law into her own hands: she walked into a courthouse and filed an “information” – a court document alleging that Executive Flight Centre Services and the Province of British Columbia should be charged for violating the Fisheries Act (based on allegations by Executive Flight Services that the Province’s actions contributed to the spill).

“I’ve been waiting on the ministries of the Environment, both federal and provincial, to file charges,” she said Wednesday in an interview. “I’m doing what I consider is a citizenship responsibility on behalf of fish that don’t really have a voice in this situation."

This type of citizen-initiated charge is known as a “private prosecution.” It remains somewhat unusual in BC, since the BC government has a track record of stepping in to halt these prosecutions.  But, as we’ve written before, changes in the legal landscape mean that the federal government has taken over Fisheries Act prosecutions, and they are sometimes proceeding with Fisheries Act prosecutions laid by individuals.

I asked Jeff Jones about the Department of Justice decision to lay new charges based on Alexandra’s private prosecution against Marine Harvest , and how he had managed to get the matter dealt with by the federal government, rather than the province, with its historically poor record on private prosecutions. 

Jeff said that this case was possible because the jurisdiction for fish farms is now “firmly back with the federal government, where it belongs,” and not with the province.  …

A federal Department of Justice lawyer is now looking at the Lemon Creek file, and will decide what steps the federal government will take.  This is a hopeful sign, since up until the Province have been taking the lead – despite allegations that their actions contributed to the spill – and according to a statement given to the Nelson Star had decided not to lay charges. 

So how will Burgoon’s prosecution turn out? We’ll see soon.  Marilyn and her lawyer are tentatively scheduled to be back in court on November 27th to try to convince a judge to order the province and Executive Flight Services to appear before the court to answer the charges. 

Why won’t the government charge?

But we hope that the fact that an individual citizen had to lay this charge – in a case of obvious environmental damage – generates a conversation about the government’s approach to environmental enforcement.  As we’ve noted previously, the province has very few convictions under environmental statutes. BC averaged about 3 convictions per year under the Fisheries Act from 2004-2013, compared with about 35 per year for the previous decade.

The Nelson Star reports that the BC Ministry of Environment claims that “The evidence obtained did not satisfy the necessary criteria to recommend charges under the section of the Fisheries Act that Burgoon cites.”  This statement seems to suggest that the government doesn’t think that there is a likelihood of a conviction under the Fisheries Act, but if so it’s a somewhat convoluted way of saying it, and the end this determination would usually be made by Crown Counsel, not Ministry of Environment staff. We wonder whether “necessary criteria” actually refers to the Ministry of Environment’s Compliance and Enforcement Policy instead of to legal requirements.

Marilyn Burgoon’s lawyer, Lilina Lysenko, points out that under the policy, where an offender is considered to be unlikely to reoffend, an investigation (possibly leading to charges) is only required where the offence led to “known or likely human health impact that is severe in effect, i.e. resulting in hospitalization and/or long term human health consequences.” That’s a pretty high hurdle. Indeed, while the environmental impacts of the lemon creek spill seem clear, the human health impacts are less substantial.

That’s not to say that investigations and charges are actually prohibited under the policy where less environmental harm has occurred, and where there is a “high likelihood” of future compliance, but the policy certainly does not push the idea of charges where there is no particular reason to anticipate re-offence, and Lysenko suggests:

The policy sort of gives a first-time offender one freebie, without recognizing the importance of deterrence where serious environmental offences have occurred. That erases a major motivation for companies to take a high level of care when they engage in environmentally-risky activities.

There is good reason to believe that violations of the Fisheries Act (among other environmental laws) are more widespread than recent conviction rates would suggest, and we certainly do wonder whether the Compliance and Enforcement Policy – as it is being implemented – is striking the right balance. 

A lack of enforcement by the Province may be one reason Burgoon found her-self in the extraordinary position of having to lay charges herself. 

By Andrew Gage, Staff Lawyer