B.C. woman seeks to file Fisheries Act charges over fuel spill
Neither the federal nor provincial government has taken action against Calgary-based firm responsible for 2013 incident
OTTAWA — A B.C. woman frustrated by government inaction has launched a private prosecution over a 33,000-litre spill of jet fuel into Lemon Creek in the Slocan Valley last year.
Marilyn Burgoon, who lives just south of the area, said the July 2013 spill was a clear violation of a federal Fisheries Act prohibition that prohibits deposit of any “deleterious substance” into water “frequented by fish.”
The spill, from a tanker truck owned by Calgary-based Executive Flight Centre Fuel Services Inc., caused the death of hundreds of fish, according to a 2013 report by SNC-Lavalin done for the company and the B.C. Environment Ministry.
The report was made available to provincial and federal environment authorities, which both have the power to file Fisheries Act charges. Yet neither has gone after the company.
A statement from the B.C. environment ministry this week confirmed that, after a “detailed investigation” following the spill last summer, the case was closed with no recommendation for charges.
No reason was given and Environment Canada wouldn’t discuss the issue other than to say in a statement Thursday that it has been “working in co-operation” with its B.C. counterpart, which according to Ottawa is the “lead agency” dealing with the incident.
Burgoon’s private prosecution, which is allowed under the federal legislation, is being financially assisted by the West Coast Environmental Law organization.
“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.”
The Harper government, when it watered down the federal Fisheries Act prohibitions against harming fish and fish habitat, stressed it would toughen penalties to prove it is serious about fish protection.
The new legislation included a $500,000 minimum fine for large corporations and a maximum of $6 million on a first indictable offence, doubling for second offences. The previous maximum was $300,000.
It also included a new maximum fine for individuals of up to $1 million for indictable offences involving “serious” harm to fish.
But former federal fisheries biologist Otto Langer, a frequent critic of his former employer, ridiculed the notion Ottawa wants a “tough on crime” policy when it comes to fish and the environment.
“Talking tough and being tough are two different things. It’s like Harper talking tough on the Middle East,” he said. “The message is pretty clear for civil servants to not lay charges and back off of industry at any cost.”
Burgoon’s lawyer, Lilina Lysenko, said she expects to make her case to a provincial court judge in November that a summons should be issued.
The spill involved a tanker carrying jet fuel for helicopters dealing with a forest fire. The tanker went off the road and down an embankment into Lemon Creek, a tributary of the Slocan and Kootenay rivers.
The SNC-Lavalin report said 261 dead fish were recovered, primarily mountain whitefish, torrent sculpin and rainbow trout, while “vast numbers” of dead benthic invertebrates were observed in Lemon Creek and the Slocan River.
“The number of deceased fish is likely higher than the numbers physically removed by crews deployed during the emergency response,” the report noted.
Of the 32,850 litres spilled, just 2,150 litres were recovered by a vacuum truck. Response teams removed 1,600 tonnes of contaminated soil along with 20 tonnes of “contaminated absorbent material and vegetation,” according to SNC-Lavalin.
The report said roughly a third of the jet fuel likely evaporated within 24 hours of the spill, and the rest within nine to 12 days.
But Langer said he visited the site several months after the spill and could smell the fuel 30 metres from the creek.
Provincial New Democrat MLAs blasted Environment Minister Mary Polak in the legislature in May, saying that jet fuel is still being found in the creek, while residents who have suffered financial losses haven’t been compensated.
“So much for ‘polluter pays,’ ” scoffed Kootenay West MLA Katrine Conroy.
Polak said that while the government still believes strongly in the “polluter pay” principle, she couldn’t comment on compensation issues due to civil lawsuits filed by community members who claim they suffered damages.
“I know that this has been just an awful experience for the community in and around Lemon Creek,” she added.
“I can’t say enough about the community members and especially organizations like the Slocan River Streamkeepers and how they have participated and worked with us as a ministry. There is ongoing monitoring taking place and ongoing remediation.”
Calgary lawyer Martin Ignasiak said private prosecutions under the Fisheries Act are usually stayed by the Attorney General’s office. Often Crown prosecutors will consider whether the accused can successfully defend the charge by claiming they undertook reasonable “due diligence” at the time of the incident.
“Some of the issues that might be taken into consideration in that type of scenario is, ‘why was the person on that road and at whose direction, and was the road properly maintained or not?’ ”