Citizen’s prosecution proceeds in Lemon Creek Spill
By Suzy Hamilton
There is another delay in a Slocan valley woman’s prosecution of the province of BC and the Executive Flight Centre over the jet fuel spill into Lemon Creek nearly two years ago.
Provincial Court Judge Richard Hewson set June 16 for the parties to fix a date for a trial in April 2016, in Nelson provincial court Monday.
“Well, it gives me more time for fund raising,” said Marilyn Burgoon who was awarded the right to prosecute both parties under the Federal Fisheries Act in provincial court last December.
They are charged with depositing a deleterious substance into water frequented by fish under the Federal Fisheries Act. An Executive Flight tanker carrying jet fuel to a chopper landing during a forest fire spilled 33,000 litres of fuel into Lemon Creek and the Slocan River.
Homes were evacuated and fish were found dead on riverbanks as a result of the spill. The company eventually apologized for the accident.
The Federal Fisheries Act has a special provision allowing for a private prosecution if a judge rules there is enough evidence to proceed, and when the province did not proceed with prosecuting the company for the spill, Burgoon filed a motion using this clause.
But whether or not the federal crown will take over the case is yet undetermined. Federal Crown Todd Gerhardt did not appear Monday in court. Chris Archer and Angela Davies, lawyers for the Executive Flight Centre and the province respectively, appeared by phone.
Both parties have pled not guilty to the charge, court heard Monday.
“The federal crown can do three things,” said Lilina Lysenko, the Trail lawyer who is representing Burgoon, and who also appeared by phone. “They can chose to take conduct of the case and stay the proceedings, or they can take conduct and prosecute or they can choose not to take conduct and let Marilyn prosecute.”
At the last court date on May 18, the federal crown said it was still “investigating” the case. But the judge said he was growing impatient and asked all parties set a date on Monday, May 25 for trial.
As it stands now, Burgoon is preparing to try the case herself, which, according to her lawyer, could cost “tens of thousands of dollars” depending on what witnesses are called during the two week trial.
Burgoon, an environmental activist who is no stranger to uphill battles, said with the help of West Coast Environmental Law, she is prepared to go forward if she has to.
“This is not a case of, ‘Oh, here’s an independently wealthy retired lady who wants justice,’” she said. “I’m an environmental activist. I credit Colleen McCrory and the Valhalla Wilderness Society for mentoring me and showing me that West Coast Environmental Law exists.
“Justice is slow moving when it comes to the environment,” said Burgoon, noting it has been two years since the spill.
“For me, it’s all pretty clear. It happened, and that’s all we have to prove.”
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