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Gov't Urged to Pursue Charges on 33,000-litre Jet Fuel Spill

Private citizen Marilyn Burgoon got court to accept case in December.

By Andrew MacLeod 21 Jan 2015 | TheTyee.ca

Andrew MacLeod is The Tyee's Legislative Bureau Chief in Victoria. Find him on Twitter or reach him here.

An environmental law advocacy group is pressing the federal and provincial governments to prosecute a court case stemming from the July 2013 spill of 33,000 litres of jet fuel into a Kootenay creek.

West Coast Environmental Law is asking people to send messages to federal Attorney General Peter MacKay and provincial Attorney General Suzanne Anton saying, "When thousands of litres of jet fuel are spilled into pristine fish-bearing waters, I expect the government to take action."

So far neither level of government has pressed charges under the Fisheries Act against Executive Flight Centre Fuel Services Ltd., the company whose truck spilled the fuel.

In Canada, however, individuals have the right to start a private prosecution when they believe there's been a violation of the Criminal Code or other laws, such as the Fisheries Act, which is what a resident who lives near Lemon Creek did. The charges Marilyn Burgoon brought to the Provincial Court of B.C. also named the provincial government for its role in the spill.

In December, B.C. provincial court judge D.M. McKimm ruled the case should go ahead and issued a summons requiring the company involved in the spill and the provincial government to appear in court.

"The evidence establishes that the province retained Executive Flight Centre to provide the deleterious substance, the jet fuel, to its operations in the Slocan Valley," McKimm's reasons for judgment said. "It was the province who chose the areas which were to be the staging area to which the fuel was to be delivered. It was the province who was responsible for having the deleterious substance brought to the wilderness."

West Coast Environmental Law now wants the provincial or federal government to exercise their right to "take over the charges" and replace Burgoon in seeing the case through court, though the group notes that with the province now also subject to charges in the case, the federal government is much more likely to take over.

The case raises questions about the consequences of breaking environmental laws in Canada and the government's commitment to enforcing those laws.

No consequences?

The case stems from July 2013 when a driver for Executive Flight Centre went up a wrong road and their tanker truck turned over into the creek, spilling the fuel. The driver was tasked with delivering fuel for ministry helicopters fighting forest fires, but was given incorrect directions from the provincial government.

"Justice needs to be seen to be done," said Lilina Lysenko, the Trail-based lawyer representing Burgoon. "We have environmental legislation for a reason. If there's no enforcement, there's no motivation for a large corporation to do the best they can."

A request for comment from Executive Flight Centre was not immediately returned Tuesday. A first appearance is scheduled for Feb. 3 in Nelson. Either the provincial or federal government could take over prosecuting the case, but Lysenko said it makes more sense for the feds to do so since the province is a defendant in the lawsuit, along with the company.

"Ultimately, prosecutions are very expensive," Lysenko said, adding that Burgoon would be pursuing the case for the public good. It makes more sense for the government to stand up for the public good than for a private citizen, she said, noting the government is better able to afford to see the case through.

The Public Prosecution Service of Canada was given notice as soon as the case began and a lawyer from the federal office attended the process hearing that led to the December decision, Lysenko said. The PPSC could step in at any time, she said, noting the agency could also stay the case if they believed it wasn't in the public good for it to proceed or felt it had no chance of success.

A spokesperson for the federal agency said the PPSC "is currently reviewing the case and will determine what the next steps are in the following weeks." The decision will be made based on the PPSC's policy book, particularly Chapter 5.9, she said.

Deleterious substance deposited

Andrew Gage, a staff lawyer with West Coast Environmental Law, said the federal government has a better track record than the province when it comes to taking over cases like this one. He gave the example of Alexandra Morton's case against the Marine Harvest fish farm company, which the federal government took over and won.

The Lemon Creek case will go ahead even if the government doesn't step in, he said, adding it would likely be possible to raise money for the prosecution. "A lot of people would want to see the case go ahead."

It is an offence under the federal Fisheries Act to deposit, or permit to be deposited, a deleterious substance into a body of water frequented by fish, Lysenko said. It is her client's position that the company spilling jet fuel into Lemon Creek classifies as that kind of offence, and that the province permitted it to happen by providing incorrect directions.

Lysenko said the driver who had the accident was the second driver to follow the province's incorrect directions, but nobody had acted to fix the problem even though the earlier driver had reported the issue. "Nobody notified the second driver. Nobody notified the depot. Nobody corrected the directions," she said.

Judge McKimm's December ruling noted the provincial government was responsible for directing traffic to the staging area. "Essentially, it is alleged that the province knew or ought to have known that tanker trucks containing enormous quantities of jet fuel were being misdirected."

Lemon Creek flows into the Slocan River, which in turn flows into the Kootenay River.

"We're hoping ultimately the federal government will step in and proceed with the charges," said Lysenko, noting many people believe governments shouldn't leave it to private citizens to make sure there is justice when environmental laws are broken.  [Tyee]

Read more: Environment

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