Approximately 33,000 litres of jet fuel was discharged into Lemon Creek and entered the Slocan River and Kootenay River on July 26, 2013. Charges were laid under the Fisheries Act against the provincial government and Executive Flight Fuel Services Ltd. by long time resident Marilyn Burgoon. However, before a summons could be issued, the evidence had to be reviewed by a judge.
On November 27, the court hearing was held in Nelson, before Judge Mayland McKimm.
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. A book of documentary material substantiating these allegations was provided to the Court by Lilina Lysenko, counsel for Burgoon. Todd Gerhart appeared as counsel for the Department of Justice.
“This is a very important victory for democracy,” Burgoon said. “This provincial court decision means that government and industry are still accountable for their actions in a court of law. Even when government and industry drag their feet to avoid investigation of environmental offences, justice can still prevail.
“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.
“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. 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.”
West Coast Environmental Law provided funding for Burgoon’s legal counsel.
“I hope citizens throughout BC will be encouraged to exercise their right to lay a charge under the Fisheries Act,” Burgoon said. “It is a powerful piece of legislation which can hold industry and government accountable for their actions.”
A summons can now be issued and a court hearing date set in the new year.
The Ministry of Environment previously told the Star the conservation officer service conducted a “detailed investigation,” but “After careful consideration of all of the facts and circumstances which lead to the incident, no report to Crown counsel was forwarded and the investigation was closed.”
They ministry further said the evidence did not satisfy the criteria to recommend charges under the section of the Fisheries Act that Burgoon cites.