Canada: Logging Companies Fined $2.2 Million Under The Fisheries Act

Last Updated: March 15 2017
Article by Paula Boutis

On January 9, 2016 following convictions under the Fisheries Act in 2015, three companies were fined  $2.2 million in a B.C. Provincial Court, for offences dating back to October 2010. The fines were imposed under the former Fisheries Act provisions for the "harmful alteration, destruction and alteration of habitat". This section was repealed and amended by the Federal government in 2012. The 2012 changes focused the Act's aim on protection of the recreational, commercial and aboriginal fisheries from "serious harm", rather than a broader environmental protection law relating to fish and their habitat that existed prior to the amendments.

While the amended legislation was not in force at the time of the charges, it is likely that, in the absence of a due diligence defence, a conviction could have been secured under current legislation as well, given the level of harm done to the fisheries.

The charges and guilty convictions were for the "harmful alteration, destruction or disruption of fish habitat: to wit riparian vegetation, wetlands, three tributaries which flow into the Kumdis Bay Estuary, three tributaries which flow into Mallard Creek and Mallard Creek itself all in violation of Section 35(1) of the Fisheries Act" resulting in an offence contrary to Section 40(1) of the Fisheries Act (the Act).

The three corporate defendants were involved in logging operations: Gwaii Wood Products ("Gwaii") owned the lands that were logged; Howe Sound Forest Products Ltd., ("Howe") purchased harvested logs from Gwaii; and I. Crosby Contracting Ltd. ("Crosby"), which was contracted by Howe to construct road and stream crossings and harvest the logs.

All the contracts included provisions requiring compliance with all applicable legislation.

Following a citizen complaint about the logging activities, an investigation occurred. One fisheries biologist testified at trial:

The area would have been a phenomenal area prior to logging. It ... breaks my heart. I have never seen anything like this before ... I have not seen such an intense suprient imposition of all the streams, wetland features in such a small area, with an estuary on it for the fish to move back and forth.

Another fisheries biologist at trial concluded:

Unfortunately, the majority of the harmful alterations ... to fish habitat will take centuries to fully restore. After restoration, the eight impacted streams are likely to still function as fish habitat providing rearing territory for juvenile Coho salmon and Dolly Varden char. The residual impacts, however, will undoubtedly reduce the productive capacity of the streams and wetland resulting in the reduction in adult Coho salmon production...

Other than Gwaii, the other two defendants were largely or entirely absent during trial and at the sentencing proceedings. One of the companies, Howe, dissolved on December 23, 2013.

Gwaii did not lead a due diligence case in its defence, and instead sought to absolve itself of liability on the basis that it had contractually required Howe to meet all applicable laws in its logging operations. However, the court concluded at paragraph 131 of the trial decision:

[A] company accused of a strict liability offence cannot avail itself of a defence of due diligence by 'contracting out' of its legal responsibilities.....  The landowner retains a legal responsibility to supervise the conduct of the contractor.  If the landowner ignores or is wilfully blind to activities on its land which constitute the actus reus of regulatory offences it is precluded from relying on the defence of due diligence. [emphasis added]

By the time of the sentencing trial, the court noted the severity of the damage and the failure of the defendants to do anything to rehabilitate the damage:

None of the Defendants have taken any steps to attempt any sort of rehabilitation or reclamation of the area ... The damage done ... indicates a wanton disregard for the fish bearing habitat ....  The harm done affected all aspects of the habitat over an extensive area and was done purposely over time.

In addition to the large fines imposed of $580,000 on Crosby, of which $400,000 was directed to conservation and protection of fish or fish habitat on Haida Gwaii; and the fines of $1.1 million imposed on Howe, of which $800,000 was directed towards conservation and protection of fish or fish habitat on Haida Gwaii, the Court also prohibited Crosby from engaging in log harvesting and sales for six months, beginning March 1, 2017 and similarly prohibited Howe Sound, for 5 years, beginning March 1, 2017.

Gwaii was fined a total of $520,000, with $400,000 directed towards environmental protection measures. However, the court also authorized that the latter fine could be satisfied by a transfer of title of the property to a non-governmental conservancy organization as agreed to by the Crown, and, failing such agreement, by further order of the court.

With the cuts and closures to enforcement offices during the tenure of the prior federal government, it's unclear how much enforcement activity is possible under the Fisheries Act. The current government has committed to a review of the changes made to federal environmental legislation under the previous government, including the Fisheries Act. The Standing Committee on Fisheries and Oceans and the Standing Committee on Transport, Infrastructure and Communities was tasked with examining the recent changes to the Fisheries Act and the Navigation and Protection Act. A report is expected in early 2017 but has not been released to date.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Paula Boutis
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions