Charge in Lemon Creek fuel spill stayed as federal lawyers, fisheries take up investigation of case
A further investigation into the Lemon Creek fuel spill will be undertaken by federal ministries as the Fisheries Act charge brought forward by a Slocan Valley resident has been stayed.
Federal lawyers from the Public Prosecution Service of Canada said Monday outside of BC Supreme Court in Nelson that Marilyn Burgoon’s charge against the Province of B.C. and Executive Flight Fuel Services Ltd. for their alleged roles in the 2013 jet fuel spill into the waters of Lemon Creek and the Slocan Valley has been discontinued.
An investigation by the federal ministries of Fisheries and the Environment will now take place — a process after which the Crown could lay a new charge or charges. Burgoon was cautiously optimistic new legal action would be forthcoming since federal prosecutors specifically left the option open to lay new charges of their own once their investigation is complete.
“I would have liked to see charges brought but since the investigation is ongoing — after all it has been almost three years in July this event took place and I did a lot of the leg work — I had to prove to the court that the charges were not frivolous and I did that,” she said.
She felt the investigation would bring more evidence for the case to go forward, and the power of the federal government gives them more access to information than she had as an individual.
“We were evacuated so we know the event took place,” she said.
The Environmental Impact Assessment done for Executive Flight and the B.C. government can be seen at http://www2.gov.bc.ca/assets/gov/environment/air-land-water/spills-and-environmental-emergencies/docs/lemon_creek-eia.pdf and illustrates the impact of the spill, said Burgoon.
Federal lawyers from the Public Prosecution Service of Canada had recently written Burgoon and indicated that they would “intervene in the case” — a move that signified the charge would no longer be in the realm of private prosecution. The intervention could still ultimately either take the case forward, or result in new charges being laid.
“Unfortunately, if the public prosecutor does not bring charges it is the end of the matter as it is no longer before the courts and there will be no further opportunity for me,” she explained.
Burgoon said the biggest problem she has with the way that the case was handled was that it’s no longer in the court, meaning there is less accountability.
“It is entirely possible that they will choose not to lay new charges and, because the charge approval process is not in court and not public, the people will never know that that has occurred,” she said.
“We need to follow up and make sure this doesn’t slip through the cracks, so it is important to continue to write to the public prosecutor’s office and insist that charges be laid.”
Burgoon said British Columbians had already spoken up on this issue, with “thousands” emailing the federal government asking them to take over and pursue this prosecution. She spearheaded an online campaign to remind Canada’s Justice minister and Canadian Attorney General Jody Wilson-Raybould via email that justice was needed for Lemon Creek.
“If this falls through the cracks and no charges are laid it will demonstrate to the public, who are clearly losing faith in governments and corporations to protect the environment, that they are above the law,” she noted.
The incident began on July 25, 2013 when a tanker truck was delivering fuel for helicopters fighting a large forest fire in the valley. But after the driver headed up an unmanned forestry road that couldn’t support the truck’s weight, the vehicle and its contents rolled into the creek.
As a result, 33,000 litres of jet fuel spilled into the creek, the Slocan River and the Kootenay River and washed into the soil and the banks of those waterways. The cumulative effect of the spill was the death of numerous fish, and incalculable harm to the rivers’ ecology, Burgoon claimed in her documents filed to the court.
In turn, Executive Flight Fuel Services has contended liability did not rest with them because of the rough and inexact nature of the directions they were given by the province to the delivery point for the fuel.
That did not stop Burgoon from trying to hold them accountable for what played out. In December, 2014 B.C. provincial court judge Mayland McKimm approved a charge under Section 36 (provisions that prohibit polluting a waterway) of the Fisheries Act against the province and Executive Flight Fuel Services Ltd. for their role in the massive fuel spill into Lemon Creek.
The Act allows for private charges to be laid. However, the evidence must first be reviewed by a judge before a summons to court can be issued.
Burgoon had used the legal counsel of the West Coast Environmental Law Dispute Resolution Fund for her legal case.