|A roundup of important new legislation, regulations, government announcements and court cases that we covered in the Environmental Compliance Insider in 2013.
CASE OF THE YEAR
Retrial Results in Convictions of Company & Director for Fisheries Violations
A DFO biologist and inspector collected evidence at a construction site near a creek. As a result, the company that owned the site and its director were charged with violating the Fisheries Act. But at trial, the court ruled that the evidence from the biologist and inspector were the result of an illegal search. The defendants were acquitted, so the Crown appealed. The appeals court ordered a new trail at which the evidence from the DFO employees would be admissible. At the new trial, the defendants were convicted. The court found that the drastic alterations to the site had harmfully disrupted a fish habitat in the creak. In addition, the defendants didn’t exercise due diligence. They had a plan from an environmental consultant but chose not to follow that plan or the consultant’s advice. For example, they removed trees they shouldn’t have and didn’t have an environmental monitor present during the work [R. v. Larsen and Mission Western Developments Ltd.,  BCPC 92 (CanLII), April 25, 2013].
OTHER NOTABLE CASES
District Didn’t Exercise Due Diligence as to Drinking Water System
A massive amount of cow effluent entered the drinking water system operated by a regional district after it washed downhill from a field to the well head and aquifer. This water was pumped into the distribution system and sent to residents. As a result, the district was charged with four environmental offences for delivering polluted water to the users of the water system. The district argued that it exercised due diligence in maintaining the water system and operating this well. The court noted that the district was aware that there were significant issues as to this well site. It was advised several times to install a backflow preventer, but didn’t. And the step it did take, using a chlorine analyzer, was unreliable and faulty. So the court convicted the district, ruling that it failed to exercise due diligence to manage the risks that it knew or ought to have known existed in these wells [R. v. Regional District of North Okanagan,  BCPC 271 (CanLII), Sept. 25, 2013].
Skipper Exercised Due Diligence as to One Violation But Not the Other
DFO officers saw a commercial fishing vessel fishing without a required hail-out number. They boarded the vessel to discuss this issue with the skipper and found that the ship’s revival tank wasn’t being used properly. They charged him with two violations. The skipper said he relied on the vessel’s engineer to ensure the revival tank was operational. He also said he was in the process of getting a hail-out number when the officers came alongside the vessel but he had poor cell phone reception. The court convicted the skipper on the hail-out number offence, noting that he could’ve gotten the number long before sailing. But it ruled that he had exercised due diligence as to the revival tank. It found that the skipper had take reasonable steps to instruct a valued and experienced crew member to ensure the revival tank was being used properly [R. v. Leask,  B.C.J. No. 2486, Nov. 7, 2012].
City Wasn’t Required to Complete Remediation as Fast as Possible
A city bought land that had been used for a sawmill and was contaminated. It agreed to remediate the land, withholding part of the purchase price to cover the costs. When the cleanup was complete, the city would pay the rest of the purchase price, minus the remediation costs, plus interest. More than 10 years later, the remediation still wasn’t done and the city hadn’t paid the balance of the purchase price. So the seller sued, claiming the city hadn’t been diligent in pursuing the remediation. The court said that although it might’ve been possible to proceed more quickly with some aspects of the remediation, the city wasn’t required to do the work as fast as possible. Rather, the contract only required it “to take reasonable efforts to commence and complete the remediation of the Lands diligently and in a timely fashion.” And the court concluded that the city had done so [Western Forest Products Inc. v. New Westminster (City),  BCSC 1001 (CanLII), June 6, 2013].
Decision to Treat Hydroelectric Plants as Separate Projects Was Reasonable
Ten hydroelectric projects were going to be constructed on tributary creeks to the Holmes River. Because each plant would have a generating capacity of less than 15 megawatts, the Environmental Assessment Office (EAO) said they fell below the 50 megawatt threshold at which an environmental assessment is required for hydroelectric projects under the Reviewable Projects Regulation. Two environmental groups wanted a declaration from the court that an environmental assessment was required for them, arguing that the EAO should’ve treated the plants as a single project. But the court ruled that the decision to treat the plants separately was within the EAO’s discretion and was reasonable [David Suzuki Foundation v. BC (Ministry of Environment),  BCSC 874 (CanLII), May 17, 2013].
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