A trial over the fuel spill into Lemon Creek nearly two years ago will be held in Nelson between April 18 and 28, 2016. The date was set at the Nelson courthouse on Tuesday.
Slocan Valley resident Marilyn Burgoon has launched a private prosecution against the Calgary-based company Executive Flight Centre and the BC government under a provision of the Fisheries Act that states “no person shall deposit or permit the deposit of a deleterious substance of any type in water frequented by fish.”
The case follows the July 26, 2013 spill of jet fuel into Lemon Creek by Executive Flight Centre, a company what was working for the provincial government fighting a forest fire.
“My major focus will be in fundraising,” Burgoon said Tuesday. “A two-week court case has a high financial cost and it will be a huge thing for me to get the funding.”
Private prosecutions are not common in Canada, but Jeffrey Jones, a semi-retired lawyer from Sointula, says they are getting more frequent because “our governments are backing away from their regulatory frameworks” and enforcing fewer of their environmental regulations. This requires citizens to take up the slack, he says.
Jones has 20 years of experience in pursuing charges under the Fisheries Act as a federal prosecutor. He has advised Burgoon and her lawyer, Lilina Lysenko, on this case and was the lawyer for biologist Alexandra Morton in two high-profile prosecutions related to fish farming in BC.
Jones says the right to pursue a private prosecution is a “valuable constitutional safeguard.”
When a citizen begins a private prosecution the federal government can choose to step in and prosecute, but in this case has decided not to, although it could change its mind and decide to intervene at anytime.
Jones calls this failure to intervene an “abdication,” and says the problem is magnified by the fact the provincial government is named as a party in Burgoon’s prosecution on the grounds it didn’t respond effectively to the Lemon Creek spill.
“What do we do in a democracy when the government itself no longer enforces the laws and when the government itself is also a party to offences that are violating the fisheries? We are on new ground here,” said Jones.
The federal justice ministry told the Star in April it would not comment on the Lemon Creek case or its role in it.