Provincial Court Judge agrees charges can proceed in Lemon Creek fuel spill case
By Nelson Daily Staff
Slocan Valley resident Marilyn Burgoon is pleased with a ruling by Judge Mayland McKimm that allows the BC Government and Executive Flight Centre Fuel Services Ltd. to face charges in relation to the Lemon Creek fuel spill.
In a media release, Burgoon said, “This is a very important victory for democracy.”
Burgoon took up the court challenge after the B.C. environment ministry confirmed following a detailed investigation of the July 26, 2013 fuel spill into Lemon Creek the case was closed with no recommendation for charges.
“This Provincial Court decision means that government and industry are still accountable for their actions in a court of law,” Burgoon said.
“Even when government and industry drag their feet to avoid investigation of environmental offences, justice can still prevail.”
The ruling comes shortly after a review in the Lemon Creek spill by Interior Health.
In July 2013, a tanker owned by Calgary-based Executive Flight Centre Fuel Services Inc. was carrying jet fuel for helicopters dealing with a forest fire.
The tanker went off the road and down an embankment into Lemon Creek, spilling jet fuel into a tributary of the Slocan and Kootenay rivers.
The spill caused the death of hundreds of fish, according to a 2013 report by SNC-Lavalin produced for the company and the B.C. Environment Ministry.
Even after the report by SNC-Lavalin provincial and federal authorities did not pursue charges against the company, which both have the power to file under the Fisheries Act.
However, Burgoon, a longtime resident who lives south of the spill, decided to use the same Fisheries Act to lay charges against the Provincial Government and Executive Flight Fuel Services Ltd.
This private prosecution, allowed under the federal legislation, is being financially assisted by the West Coast Environmental Law organization.
But a judge needed to review the evidence in the case before a summons could be issued.
That court hearing was held in Nelson on November 27 before Judge McKimm, where Burgoon provided her evidence with respect to the allegations that both parties shared responsibility for the fuel entering Lemon Creek, flowing downstream into the Slocan River and Kootenay Rivers.
Lilina Lysenko, counsel for Burgoon, provided a book of documentary material substantiating these allegations to the Court.
“This is an important step when using the Fisheries Act to protect British Columbia’s water, the fish and the habitat for fish species in the Slocan Valley,” Burgoon explained.
“The Fisheries Act specifically provides for private prosecutions by individuals.
“In addition, the right of a private citizen to lay a charge is considered a fundamental part of Canada’s criminal justice system.”
Burgoon said if government is not going to apply the laws of Canada, it is up to the people to do so.
“I had no choice but to launch a private prosecution and let a judge review the evidence,” Burgoon said.
Burgoon applauded the support of the West Coast Environmental Law Dispute Resolution fund, which paid for legal counsel, Lysenko and Jeff Jones.
“Their legal research has resulted in the Honorable Judge D.M. McKimm agreeing with my application,” she said.
“I hope citizens throughout British Columbia will be encouraged to exercise their right to lay a charge under the Fisheries Act. It is a powerful piece of legislation which can hold industry and government accountable for their actions.”
A summons will now be issued and a court hearing date will be set in the 2015 New Year.
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