Appeals over salmon kill case dismissed

A B.C. Court of Appeal judge has served up a double-whammy in dismissing requests from both the Crown and the defendant to appeal aspects of a case stemming from a Rio Tinto Alcan decision that led to the death of salmon fry on the Kemano River.

In April 2011, Rio Tinto lowered water flow into the river from its hydroelectric power station to allow emergency repair of a powerline.

In doing so, the company faced a quandary over whether to do what’s best for the eulachon eggs or the salmon fry in the Kemano.

A rapid ramp-down at high tide would be best for eulachon eggs because it would minimize their exposure to the air but a slow one would allow the salmon fry, which are mobile, to move out from under the gravel and into deeper water.

Because Rio Tinto had an agreement with the Haisla First Nation and the Department of Fisheries and Oceans to protect the eulachon eggs, it opted for the rapid decline. Over about three hours, the water was lowered and the work carried out, but during that time an angling guide saw salmon fry stranded on the sides of the river with birds feeding on them.

A lower-court judge found Rio Tinto had failed to get proper permission from DFO. The company had claimed it had an official’s permission, but the judge found it was nothing beyond a casual comment over the phone that Rio Tinto would “have to do what you have to do.”

The judge also fined Rio Tinto $200,000, of which $125,000 was to go to fisheries conservation efforts. In answer to an appeal from Rio Tinto, a B.C. Supreme Court judge in turn waived the $125,000 on the basis that the lower-court judge gave too much weight to the company’s ability to pay in setting the amount.

Crown subsequently turned to the Court of Appeal, arguing the B.C. Supreme Court judge wrongfully found that the ability to pay is irrelevant. But in a decision issued December 21, Court of Appeal Justice Gregory Fitch disagreed, saying the judge found only that the ability to pay should not have been a primary factor.

Rio Tinto, in turn, had requested leave to appeal the conviction, in part maintaining the statement from the DFO official over the phone amounted to permission. However, Fitch disagreed and, in part, noted that during the original trial Rio Tinto tendered no evidence from the employee who spoke to the official and that the judge found the official was not made fully aware of the circumstances.

The full decision is posted with this story at princegeorgecitizen.com.

A lower-court judge found Rio Tinto had failed to get proper permission from DFO. The company had claimed it had an official’s permission...