|A roundup of important new legislation, regulations, government announcements and court cases that we covered in the Environmental Compliance Insider in 2013.
[box]Newfoundland & Labrador[/box]
LAW OF THE YEAR
Effective Aug. 1, residents can now recycle their end-of-life electronics and help divert potentially hazardous materials from landfills through the Electronic Products Recycling Association’s Extended Producer Responsibility e-waste recycling program. The program will divert items such as computers, televisions, DVD players, printers and other types of e-waste from provincial landfills.
CASE OF THE YEAR
Fisherman’s Officially Induced Error Defence Is Successful
A fisherman was charged with exceeding the trip limit condition on his snow crab fishing licence in 2011. He admitted exceeding the trip limit of 50,000 lb. but argued that he’d relied on representations by a DFO representative that trip limits wouldn’t be enforced in 2011. The court dismissed the charges, ruling that the fisherman had proven an officially induced error defence. The fisherman met with DFO officials as part of a committee that voiced the concerns of fishermen. It was during one of these meetings that a DFO official said the trip limits wouldn’t be enforced in 2011. The fisherman relied on this reasonable advice from an appropriate official, which turned out to be wrong [R. v. Daley,  N.J. No.1403, March 25, 2013].
OTHER NOTABLE CASES
Sea Observer Convicted of Providing False Information to DFO
A sea observer’s duties included preparing “Set and Catch Sheets” for the Department of Fisheries and Oceans that documented the fishing activity on the vessel to which he was assigned. A DFO officer compared the private logs of a vessel’s skipper to the sea observer’s sheets and found several discrepancies, including the location of the fishing and number of pots deployed and recovered. The sea observer was convicted of providing false information in violation of the Fisheries Act. He admitted providing inaccurate information on the sheets, claiming that he was new and “didn’t want to look bad” [R. v. Oake,  CanLII 74125 (NL PC), Nov. 23, 2012].
Officers Didn’t Exceed Search Warrant’s Scope in Investigating Fisheries Offences
A crab fisherman was charged with three violations of the Fisheries Act. He asked the court to suppress evidence the officers seized pursuant to a search warrant, claiming they exceeded its scope. The warrant authorized the seizure of business records and items showing fishing activity on the fisherman’s ship, including computerized information. The court noted that there’s a diminished expectation of privacy on a fishing vessel. Steps were taken to minimize access to any personal information on the seized computers. And the fisherman’s personal log, which was seized, “is no more nor less than a notebook made by the captain during the course of and related to his fishing enterprise,” said the court. So it dismissed the suppression application [R. v. Noonan,  CanLII 61818 (NL PC), Sept. 27, 2013].
Court Restricts Environmental Protesters to Safety Zone
Environmental protesters were interfering with the construction of a hydro project by blockading the site. The project developer asked the court for a permanent injunction confining the protesters to a “designated safety zone.” The court agreed and issued the injunction. It noted that the presence of protesters at the construction site endangered not only the protesters but also the workers there. Thus, the establishment of a safety zone for protesters was reasonable. The court also established a “protest-free” buffer zone near the access road to the site for safety reasons [Nalcor Energy v. NunatuKavut Community Council Inc.,  CanLII 73234 (NL SCTD), Nov. 27, 2012].
Fisherman Didn’t Exercise Due Diligence to Comply with Licence Conditions
A fisherman was found in possession of “V” notched female lobsters in violation of his fishing licence. He was charged with violating the Fishery (General) Regulations. The fisherman said that he planned to do a “final” examination of the lobsters when he got to the wharf but the fisheries officials conducted their inspection first. The court convicted him and rejected his due diligence defence. Compliance with the conditions of his licence required him to take steps to determine if any lobster he caught was a female “V” notched lobster before he kept it in his possession. But he didn’t take such steps [R. v. Gallant,  N.J. No. 83, Feb. 27, 2013].
Defendants Exercised Due Diligence in Trying to Comply with Offloading Requirement
A crab fisherman’s licence required him to offload all of his catch once offloading began. When his ship returned to the dock, the processing plant couldn’t handle its catch because of a “crab glut.” So an officer of the company that owned the plant allowed the offloading of the ship’s boxed crab, which had to processed quickly, but not the rest of the crab. The DFO charged the fisherman and company officer with violating the licence. The court dismissed the charges. It acknowledged that they violated the offloading requirement. But all of the crab processing plants in the area were overwhelmed because catches were extremely good and higher than expected. The defendants tried to find alternate storage space for the crab without luck. The boxed crab would’ve died if they weren’t unloaded but there was time to unload the rest of the crab. Thus, the court concluded that the defendants exercised due diligence under the circumstances [R. v. Quinlan,  CanLII 26549 (NL PC), May 8, 2013].
Diesel Fuel Spill Costs Company & Ship’s Master $115,000
A vessel released approximately 70 litres of diesel fuel into Williams Harbour as the fuel was being transferred from the ship to storage tanks. The company and ship’s master pleaded guilty to failing to properly clean up the spill or mitigate damage and report it to authorities. The court ordered the company to pay $100,000 and the ship’s master $15,000, with half going to the Environmental Damages Fund [Coastal Shipping Ltd. and Bradley Doyle, Govt. News Release, Jan. 17, 2013].
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