R v Kirby Offshore Marine Operating LLC, 2019 BCPC 185

The Court accepted a joint submission with the total fines of $2,905,000 imposed on the defendant after a sentencing hearing and Talking Circle was conducted in the traditions of the Heiltsuk Nation.

Native Law Centre Case Watch Blog

The defendant, Kirby Offshore Marine Operating LLC, operates one of the largest inland and offshore tank barge fleets in the United States. One of its tugs en route from Alaska to Vancouver, ran aground and sank at a reef in the traditional territory of the Heiltsuk Nation due to the operator falling asleep. Contamination of the environment occurred as diesel fuel and lubricants were released from ruptured tanks on the tug into the ocean. A joint submission was made which was accepted by the Court with total fines of $2,905,000 dollars imposed. There are 3 offences which the defendant has pled guilty: 1) unlawful deposit of diesel fuel contrary to ss 36(3) and ss 40(2) of the Fisheries Act; 2) unlawful deposit of diesel fuel contrary to ss 5.1(1) and s 13(1)(a) of the Migratory Birds Convention Act, 1994; and 3) unlawful pilotage by proceeding through an area without a licensed pilot or the holder of a pilotage certificate contrary to s 47 of the Pilotage Act.

A sentencing hearing was conducted in the traditions of the Heiltsuk Nation with a Talking Circle. The Hereditary Chiefs, Elders, elected Chief, along with other members of the community sat with counsel and the Court in a circle, which was a solemn and tradition filled forum. The Hereditary Chiefs in full ceremonial garments, placed their coppers on top of cedar boughs in the middle of the circle and spoke about the damage to their resources, the infliction of insult and trauma upon their ancestral lands and culture, as well as their economic losses. The history of the Heiltsuk stretches 14,000 years as stewards of their lands, oceans and resources. They have a special relationship to their home as it is closely held to their environment and their heritage. There is a sense of despair with the dissipation of the spiritual energy as the beaches and resources have been soiled with diesel and oil. There is anger over the damage to their oceans and is a breach of their traditional laws of respect and good care for the lands and oceans.

There are five sentencing principles for environment offences: 1) culpability; 2) prior record and past involvement with authorities; 3) acceptance of responsibility and remorse; 4) damage and harm; and 5) deterrence (R v Terroco Industries Limited, 2005 ABCA 141 [“R v Terroco”]; R v Brown, 2010 BCCA 225).

This is a strict liability offence and the assessment for the dominant factor of culpability must be to determine the degree of blameworthiness which is on a sliding scale; is the conduct an intentional act or a near miss of the due diligence standard? In this case, the offence was not intentional as the operator had fallen asleep, but it was not a near miss as the offence could have been avoided. Within the range of culpable conduct, this would be towards the higher end of the degree of blameworthiness. The defendant has no prior record and past involvement with authorities. The defendant’s acceptance of responsibility is reflected by the guilty pleas which are significant, as it acknowledges the wrongful conduct, which saves considerable court time. The defendant is remorseful and the post offence conduct also establishes acceptance of the harm done.

Assessing the degree of harm factors in actual harm in the evaluation of the sentence. Determining actual harm may be difficult given the gradual and cumulative effects of pollution. Identifiable injury is an exacerbating factor, while the lack of an actual injury is not a mitigating factor (R v Terroco). The greater the potential for harm, the greater the warranted penalty. The potential for harm is informed by the probability of the risk, the nature of the product, the likely magnitude of damage if the risk materializes and the sensitivity of the site including its proximity to population and fragile environment (R v Terroco). In this matter, the absence of proximity to population is not a factor that reduces the degree of harm. While the site of the spill was relatively remote, it was close to the community of Bella Bella and is an area that is actively used by the Heiltsuk people to access natural resources. The nature of diesel is highly deleterious as even small amounts can kill fish. The spread of water borne contaminants over vast areas of the ocean in such a sensitive environment is also an aggravating element.

Specific and general deterrence are both dominant features in sentencing pollution cases. Although the defendant has been deterred, it is the message to others that must be clear and unambiguous. The objective of deterrence is to ensure that not only the offender but others are acutely aware that they owe a high duty to be vigilant in protecting this sensitive environment.

The Heiltsuk Nation made clear in the Talking Circle that no amount of monetary fine could justify the damage that had occurred to their traditional lands. It was asked that the defendant be banned from their traditional waters. Within the framework of the operative legislation the Court does not have the jurisdiction to make such an order. The fines imposed are directed to be paid to the Environmental Damage Fund that is to be administered for the benefit of the Heiltsuk First Nations for the purposes of restoration of the habitat affected by the environmental damage.

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