Court date set as federal lawyers step into Lemon Creek legal case
By Timothy Schafer
The first court date has been set in the Lemon Creek fuel spill legal case as federal lawyers have officially taken up the mantle of a private citizen’s charge against the province and the flight fuel company involved in the spill.
Marilyn Burgoon’s charge under the Fisheries Act arising out of the 2013 Lemon Creek fuel spill will be heard for the first time Monday, Jan. 25 at 9:30 a.m. in Nelson Courthouse when federal lawyers step in to bring some resolution to the pending legal case.
Slocan Valley resident Burgoon said the federal government is still expected to announce how and if it will pursue the prosecution that she launched one year ago against Executive Flight Fuel Services Ltd. and the Province of
B.C. for their alleged roles in the 2013 jet fuel spill into the waters of Lemon Creek and the Slocan Valley.
“We do not know if charges are going to be laid,” she said about the pending court date.
“But I can’t imagine they won’t be as (the spill) is a clear violation of the Fisheries Act, and when I was before the courts the fact that the spill occurred in a fish habitat was accepted by Judge McKimm.”
Federal lawyers from the Public Prosecution Service of Canada had written Burgoon and indicated that they would “intervene in the case” — a move that signifies the charge will no longer be in the realm of private prosecution.
However, intervention could either take the case forward, or result in the charge being dropped.
“I am optimistic that charges will be laid as the new minister of Justice and the Trudeau government are more supportive of protection of the environment, and this is a violation under the Criminal Code to pollute fish habitat,” she said.
If she had the funds Burgoon said she would have liked to set precedence that private prosecution can merit justice, but the financial burden was too great for her. She said the Lemon Creek case could take at least two weeks of court time.
“Such a case could easily bankrupt a private citizen,” she said. “But it is important that the public prosecutor does (its) job as corporations and governments should not be above the law.”
Even though it is over two years since the spill occurred, Burgoon said it was essential that a message of accountability be sent when fuel is spilled in pristine areas such as Lemon Creek and the Slocan Valley, resulting in the destruction of fisheries and threatening public health.
Burgoon said British Columbians have 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.
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.
