Her Majesty the Queen - v. -, 2017 SKPC 016

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2017 SKPC 016 Date: July 14, 2017 Information: 43761941 Location: Prince Albert __________________________________________________________________________ Between: Her Majesty the Queen - and - Big River First Nation Appearing: L. Gibb For the Crown B. Mitchell For the Accused SENTENCING JUDGMENT G.M.

MORIN, J [ 1 ] The accused, the Big River First Nation, was convicted of the following: That on or about the 7th day of November, 2014 and the 8th day of March, 2015 at Big River First Nation, near Debden in the Province of Saskatchewan did unlawfully fail to comply with an Environmental Protection Compliance Order, contrary to subsection 238(1) of the Canadian Environmental Protection Act, 1999 , thereby committing an offence contrary to paragraph 272(1) (

a) of the Canadian Environmental Protection Act, 1999 . FACTS

Circumstances of the offence: [ 2 ] In order to understand the charge at hand, it is important to look at the full nature of the federal government’s involvement, and the original problems leading to the eventual guilty plea to this charge. [ 3 ] In 2011, a visual inspection was conducted by environmental officers from Environment Canada at the Miami Gas Bar on the Big River First Nation.

At that time a number of violations were found in relation to non-compliance and fuel storage tanks, including deficiencies in piping around the storage tank, the transition and diesel sump pumps, the absence of identification numbers on the storage tank systems, and lack of product transfer area to contain any potential spills.

A written warning was issued in order to ensure that these various violations were remedied. [ 4 ] As of July 17, 2014, approximately three years after the initial inspection and the written warning, these violations had not been remedied and on October 8th, 2014, an Environmental Protection Compliance Order (EPCO) was issued to the Big River First Nation and Band Administrator Derek Klein.

Dan Grunert, an Environmental Officer designated under the Canadian Environmental Protection Act , 1999 , SC 1999, c 33 (CEPA), stated in the EPCO that he had a reasonable belief that the Storage Tank Systems for Petroleum Products and Allied Petroleum Products Regulations had and were continuing to be contravened: (see Appendix A). [ 5 ] This specific charge relates to the contravention of ss. 30 and 31: 30(1) The owner or operator of a storage tank system must prepare an emergency plan taking into consideration the following factors: (

a) the properties and characteristics of each petroleum product or allied petroleum product stored in each tank of the system and the maximum expected quantity of the petroleum product or allied petroleum product to be stored in the system at any time during any calendar year; and (

b) the characteristics of the place where the system is located and of the surrounding area that may increase the risk of harm to the environment or of danger to human life or health.

(2) The emergency plan must include (

a) a description of the factors considered under subsection (1); (

b) a description of the measures to be used to prevent, warn of, prepare for, respond to and recover from any emergency that may cause harm to the environment or danger to human life or health; (

c) a list of the individuals who are required to carry out the plan and a description of their roles and responsibilities; (

d) the identification of the training required for each of the individuals listed under paragraph (c); (

e) a list of the emergency response equipment included as part of the plan, and the equipment’s location; and (

f) the measures to be taken to notify members of the public who may be adversely affected by the harm or danger referred to in paragraph (b).

(3) The owner or operator of a storage tank system must ensure that the emergency plan is ready to be implemented

(

a) in the case of a storage tank system that is installed before June 12, 2008, no later than two years after June 12, 2008; and (

b) in any other case, before the day on which the first transfer of petroleum products or allied petroleum products into any tank of the storage tank system occurs. 31(1) The owner or operator of a storage tank system must keep the emergency plan up-to-date and keep a copy of it readily available for the individuals who are required to carry it out, as well as a copy at the place where the storage tank system is located if that place is a place of work.

(2) The owner or operator must notify the Minister of the civic address of each location where the emergency plan is kept. [ 6 ] According to the EPCO issued by Dan Grunert, dated October 8, 2014, on July 17, 2014, enforcement officers under CEPA conducted an onsite inspection under the Storage Tank Systems for Petroleum Products and Allied Petroleum Products Regulations at the Miami Gas Bar, owned by Big River First Nation. [ 7 ] The visual inspection of the above ground tank system revealed the following: • the above ground single walled piping from the storage tank system went into the ground becoming underground single walled piping, that is not double walled or catholically protected; • the transition sump and diesel sump were full of fluid causing the secondary containment to be used as storage; • there was no product transfer area designed to contain spills; and • the two Environment Canada identification numbers issued to Big River First Nation, 00032594 and 00032601, were not on or near the storage tanks systems. [ 8 ] Further conversation by the officers with the General Manager, Laurie Weenonis, revealed the following: • visual inspections are conducted on the storage tank systems’ above ground components, but not on the dispenser or transition sumps; • there were no inspection records detailing the results of the visual inspections staff conduct; • there was no emergency plan written or readily available for staff; • Miami Gas Bar is owned by the Big River First Nation; and • Derek Klein is the Band Administrator. [ 9 ] The Storage Tank Systems for Petroleum Products and Allied Petroleum Products Regulations apply to any storage tank system in Canada in which petroleum or allied petroleum products are stored, whether it is on federal land or Aboriginal land.

Because the storage tanks in question are on Aboriginal land, the regulations apply. [ 10 ] On August 6, 2014, an enforcement officer reviewed the audited financial statements of the Big River First Nation, and observed that the Big River First Nation is listed as the owner of the Miami Gas Bar.

The officer noted in his report that as a result of his findings, he had reasonable grounds to believe: THAT Big River First Nation carrying on business as Miami Gas Bar and its responsible officials did fail to permanently withdraw from service the single walled underground piping by June 12, 2012, did fail to keep secondary containment free of storage, did fail to have a product transfer area designed to contain oil spills, did fail to have leak detection for the transition and dispenser sumps, did fail to keep records of inspections, did fail to have an Environment Canada identification number displayed on or near the fuel tanks, and did fail to have a complaint emergency plan readily available, all contrary to the aforementioned provisions of the Storage Tank Systems for Petroleum Products and Allied Petroleum Products Regulations , and CEPA , and; THAT the aforementioned offences are continuing to be contravened by Big River First Nation carrying on business as Miami Gas Bar and its responsible officials in the circumstances set out in paragraph 235(2) (

b) of CEPA .

[ 11 ] The report also sets out a number of measures that were to be taken, including: On or by November 7, 2014: • displaying identification numbers 00032594 and 00032601 in a visible location on or near the storage tank system for which the number was issued, in accordance with s. 28(4) of the Storage Tank Systems for Petroleum Products and Allied Petroleum Products Regulations ; • implementing leak detection for all single walled above ground piping that does not have secondary containment as required by s. 23 of the Storage Tank Systems for Petroleum Products and Allied Petroleum Products Regulations ; • implementing leak detection for the transition sump and dispenser sumps as required by s. 25 of the Storage Tank Systems for Petroleum Products and Allied Petroleum Products Regulations ; • preparing and keeping records of inspections of above ground single walled piping, transition sumps and dispenser sumps as required by s. 27 of the Storage Tank Systems for Petroleum Products and Allied Petroleum Products Regulations ; • removing from service all single walled underground piping or remove the ground from around all single walled underground piping to make it above ground piping; and • removing all fluids from the transition and dispenser sumps required by s. 13 of the Storage Tank Systems for Petroleum Products and Allied Petroleum Products Regulations .

On or by December 5, 2014: • designing and implementing a product transfer area to contain spills during the transfer process as required by s. 15(1) of the Storage Tank Systems for Petroleum Products and Allied Petroleum Products Regulations . On or by February 6, 2015: • preparing and submitting to Environment Canada an emergency plan that takes into consideration all the required factors and includes all the required information as required by subsections 30(1) and 30(2) of the Storage Tank Systems for Petroleum Products and Allied Petroleum Products Regulations .

On or by March 6, 2015: Providing documentation to Environment Canada that includes: • dated photographs demonstrating that the Environment Canada identification numbers 00032594 and 00032601 are displayed in a visible location at or near the storage tank systems; • documentation or dated photographs of the work completed to remove all single walled underground piping; • dated photographs of the product transfer area designed to contain spills, in use during the transfer of fuel to the storage tank systems; • documentation or dated photographs of the work completed to remove the fluid from the transition and dispenser sumps; and • inspection reports starting no later than October 31, 2014 to the date this report is submitted (by Big River First Nation). [ 12 ]

Section 238 of CEPA states: 238(1) A person to whom an order is directed shall, immediately on receipt of the order or a copy of it or on being directed by an enforcement officer under an order given orally under

section 236, comply with the order. [ 13 ] The Court issued an order on November 16, 2016 in accordance with ss. 291(1) (

c) and (

q) of CEPA : 291(1) Where an offender has been convicted of an offence under this Act, in addition to any other punishment that may be imposed under this Act, the court may, having regard to the nature of the offence and the circumstances surrounding its commission, make an order having any or all of the following effects: (

c) directing the offender to prepare and implement a pollution prevention plan or an environmental emergency plan;

(

q) requiring the offender to comply with any other conditions that the court considers appropriate in the circumstances for securing the offender’s good conduct and for deterring the offender and any other person from committing offences under this Act; [ 14 ] Big River First Nation was also ordered to prepare and submit inspection records to Environment Canada as required under s. 27 of the Storage Tank Systems for Petroleum Products and Allied Petroleum Products Regulations . [ 15 ] Subsequently, Big River First Nation has pled guilty to the offence of unlawfully failing to comply with the EPCO, contrary to subsection 238(1) of CEPA , and as such have admitted to an offence contrary to s. 272(1) (

a) of CEPA . ISSUES [ 16 ] The following issues arose in making this decision: 1. Is the Miami Gas Bar

A) a corporation?

B) a small-revenue corporation? Or

C) an individual? 2. What is the appropriate fine for the offence under s. 272(2) (

b) of CEPA ? ANALYSIS [ 17 ] Under CEPA , the following penalties are available for an offence under s. 272…: 272(2) Every individual who commits an offence under subsection (1) is liable, (

a) on conviction on indictment, (

i) for a first offence, to a fine of not less than $15,000 and not more than $1,000,000 or to imprisonment for a term of not more than three years, or to both, and (ii) for a second or subsequent offence, to a fine of not less than $30,000 and not more than $2,000,000 or to imprisonment for a term of not more than three years, or to both; or (

b) on

summary conviction,

i) for a first offence, to a fine of not less than $5,000 and not more than $300,000 or to imprisonment for a term of not more than six months, or to both, and (ii) for a second or subsequent offence, to a fine of not less than $10,000 and not more than $600,000 or to imprisonment for a term of not more than six months, or to both. Penalty — other persons

(3) Every person, other than an individual or a corporation referred to in subsection (4), that commits an offence under subsection (1) is liable,

(

a) on conviction on indictment, (

i) for a first offence, to a fine of not less than $500,000 and not more than $6,000,000, and (ii) for a second or subsequent offence, to a fine of not less than $1,000,000 and not more than $12,000,000; or (

b) on

summary conviction, (

i) for a first offence, to a fine of not less than $100,000 and not more than $4,000,000, and (ii) for a second or subsequent offence, to a fine of not less than $200,000 and not more than $8,000,000. Penalty — small revenue corporations

(4) Every corporation that commits an offence under subsection (1) and that the court determines under

section 272.3 to be a small revenue corporation is liable, (

a) on conviction on indictment, (

i) for a first offence, to a fine of not less than $75,000 and not more than $4,000,000, and (ii) for a second or subsequent offence, to a fine of not less than $150,000 and not more than $8,000,000; or (

b) on

summary conviction, (

i) for a first offence, to a fine of not less than $25,000 and not more than $2,000,000, and (ii) for a second or subsequent offence, to a fine of not less than $50,000 and not more than $4,000,000.

Determination of small revenue corporation status 272.3 For the purpose of sections 272, 272.1 and 272.2, a court may determine a corporation to be a small revenue corporation if the court is satisfied that the corporation’s gross revenues for the 12 months immediately before the day on which the subject matter of the proceedings arose — or, if it arose on more than one day, for the 12 months immediately before the first day on which the subject matter of the proceedings arose — were not more than $5,000,000. 1. Is the Miami Gas Bar

A) a corporation?

B) a small-revenue corporation? Or

C) an individual? Crown Submissions

[18] The Crown proceeded summarily in this matter, and as such, any fine that this Court deems necessary must fall under thoseguidelines set out in CEPA. In making a determination of sentence, the fine levied will depend on the definition of Miami Gas Bar. [19] The Crown suggests that the Miami Gas Bar is and should be sentenced under s. 272(3)(b), and not as an individual or as asmall-revenue corporation, noting that the Big River First Nation’s revenue status exceeds $5,000,000.00. Therefore, according to theCrown, they would be subject to a $100,000.00 minimum fine in accordance with s. 272(3)(

b) of CEPA. Defence Submissions [20] The defence counsel suggests that it is inappropriate to consider the Miami Gas Bar as a corporation or as a person. Rather,they suggest that the Miami Gas Bar be considered an individual, or a sole proprietorship for purposes of sentencing. This determinationwould subject the Miami Gas Bar to a minimum $5,000.00 fine in accordance with s. 272(2)(

b) of CEPA. [21] The defence refers to Kostyshyn v West Region Tribal Counsel Inc, [1992] FCJ No 730 (QL), a case where Muldoon J. quotesWoodward’s Native Law at paragraph 15: At page 14 of the same Woodward's Native Law, one finds the following: A band does not have corporate status. [Afton Band of Indians v A.G. of N.S., (1978) (NS SC), 3 R.P.R. 298(N.S.T.D.) ... A corporation cannot be considered to be a band.

Even if a corporation has its registered office on an Indian reserve and isowned by shareholders, all of whom are registered Indians and band members residing on an Indian reserve, the corporation is not aband. [emphasis added] [22] The defence also refers to R v Cochrane, 1977 CarswellMan 43, [1977] 3 WWR 660. [Cochrane] where Philp J. provides thefollowing

summary of whether a band can be considered a corporation: 7 The narrow issue then is whether the Band was a postmaster or a mail contractor. By the

definitions supra, a postmaster is a postalemployee and a postal employee is "a person".

Section 28 of the

Interpretation Act, expands the word "person" to include a"corporation". While a Band has certain powers conferred upon it under the Indian Act, is the Band "a person" in law? 8 "Band" is defined in s. 2(1) of the Indian Act as follows: 'Band' means a body of Indians (

a) for whose use and benefit in common, lands, legal title to which is vested in Her Majesty, have been set apart before, on or after…, (

b) for whose use and benefit in common, monies are held by Her Majesty, or (

c) declared by the Governor in Council to be a band for the purposes of this Act. 9 In Hague v Cancer Relief Research Institute, (MB KB), 47 Man R 325, [1939] 4 DLR 191, (Man KB) Dysart J.stated: “In law a person is any being that is capable of having rights and duties, and is confined to that. Persons are of two classes only —natural persons and legal persons. A natural person is a human being who has the capacity for rights or duties. A legal person is anythingto which the law gives a legal or fictitious existence and personality, with capacity for rights and duties.

The only legal person known toour law is the corporation — the body corporate. There are other groups or associations of natural persons which the statute law recognizes, and endows with some personality and somerights or duties, such as registered trade unions, but these are not corporations. In any event, they are composed of persons.”

10 The status of a band was considered by Solomon J. in Mintuck v Valley River Band No. 63A, (MB KB), [1976]4 W.W.R. 543. He concluded that although a Band may have many more powers than a corporation, a Band is not "a body corporatecapable of being sued as a person under Queen's Bench Rules" [pp. 553-54]. [emphasis added] [23] The Big River First Nation operates the Miami Gas Bar. The First Nation is a Band.

In the circumstances, neither the BigRiver First Nation nor The Miami Gas Bar fit the within definition of a corporation. [24] The Hague decision is relevant here, as it determines that in law, only a corporation can be a legal person under the law. Justbecause a group has the qualities of a corporation does not make it a corporation. Big River First Nation is a sovereign nation. Theunique aspect of any sovereign nation, is that members are born or transferred into membership, and identified accordingly.

The MiamiGas Bar, is part of the Band’s economic development initiative, as stated in the Big River First Nation’s 2015 consolidated financialstatement (page 13). What this means is that the Gas Bar provides its members with employment and access to goods and services. Thereis nothing more before me that suggests the Miami Gas Bar is a corporation. Rather, it is a part of the Band. As was the case inCochrane, the Big River First Nation is neither a natural person, nor is it a corporation, as made clear by Mintuck. [25] A First Nation or Band is a distinct entity.

For the purposes of CEPA, a First Nation cannot be assumed to be a corporation oranother legal entity other than a Band. If Parliament intended a Band to be a corporate entity under the CEPA it would have included itwithin this definition. It is not appropriate for the court to make these assumptions particularly considering the legal implications of sucha ruling. [26] As such, I conclude that the Miami Gas Bar falls under the definition of an individual. Therefore, it should be sentencedaccordingly under s. 272(2)(

b) of CEPA. 2. What is the appropriate fine for the offence under s. 272(2)(

b) of CEPA? [27] The determination of the Miami Gas Bar as an individual falling under s. 272(2)(

b) of CEPA means that the Big River FirstNation is liable for a fine of no less than $5,000.00 and no more than $300,000.00. This minimum fine was put in place in order to meetthe purpose and principles of sentencing as outlined in CEPA. The legislation also provides guidance in relation to sentencing, citingaggravating factors in making these decisions.

Fundamental Purpose of Sentencing 287 The fundamental purpose of sentencing for offences under this Act is to contribute, in light of the significant and many threats to theenvironment and to human health and to the importance of a healthy environment to the well-being of Canadians, to respect for the lawprotecting the environment and human health through the imposition of just sanctions that have as their objectives (

a) to deter the offender and any other person from committing offences under this Act; (

b) to denounce unlawful conduct that damages or creates a risk of damage to the environment or harms or creates a risk of harm tohuman health; and (

c) to reinforce the “polluter pays” principle by ensuring that offenders are held responsible for effective clean-up and environmentalrestoration. Sentencing principles 287.1(1) In addition to the principles and factors that the court is otherwise required to consider, including those set out in sections 718.1to 718.21 of the Criminal Code, the court shall consider the following principles when sentencing a person who is convicted of anoffence under this Act:

(

a) the amount of the fine should be increased to account for every aggravating factor associated with the offence, including the aggravating factors set out in subsection (2); and (

b) the amount of the fine should reflect the gravity of each aggravating factor associated with the offence. Aggravating factors

(2) The aggravating factors are the following: (

a) the offence caused damage or risk of damage to the environment or environmental quality; (

b) the offence caused damage or risk of damage to any unique, rare, particularly important or vulnerable component of the environment; (

c) the offence caused harm or risk of harm to human health; (

d) the damage or harm caused by the offence is extensive, persistent or irreparable; (

e) the offender committed the offence intentionally or recklessly; (

f) the offender failed to take reasonable steps to prevent the commission of the offence despite having the financial means to do so; (

g) by committing the offence or failing to take action to prevent its commission, the offender increased revenue or decreased costs or intended to increase revenue or decrease costs; (

h) the offender committed the offence despite having been warned by an enforcement officer of the circumstances that subsequently became the subject of the offence; (

i) the offender has a history of non-compliance with federal or provincial legislation that relates to environmental or wildlife conservation or protection; and (

j) after the commission of the offence, the offender (

i) attempted to conceal its commission, (ii) failed to take prompt action to prevent, mitigate or remediate its effects, or (iii) failed to take prompt action to reduce the risk of committing similar offences in the future. Absence of aggravating factor

(3) The absence of an aggravating factor set out in subsection (2) is not a mitigating factor. Meaning of damage

(4) For the purposes of paragraphs (2) (a), (

b) and (d), damage includes loss of use value and non-use value. Reasons

(5) If the court is satisfied of the existence of one or more of the aggravating factors set out in subsection (2) but decides not to increase the amount of the fine because of that factor, the court shall give reasons for that decision. [ 28 ] The seriousness of this charge is not lost on the Court, and there are a number of considerations that must be made here. Threats to the environment should be taken very seriously, and regulations such as CEPA exist for this reason.

The health of the earth must be respected in such a way that all humans should be held responsible for negligent behaviour that is detrimental to the environment, and most importantly, is in their control. This responsibility is not only to society as a whole, but to the offender’s own community. To not take a violation of CEPA seriously is to open the door for a number of infractions to be overlooked and not taken seriously.

As such, the principles outlined in s. 287 of CEPA aim to deter offenders from committing further offences and to denounce unlawful conduct that creates risk or damages the environment and human health. Further, it is Parliaments aim to ensure that offenders are held responsible for effective clean-up and restoration. [ 29 ] In R v United Keno Hill Mines Ltd. , 1980 CarswellYukon 9 (YKTC), [ United Keno Hill Mines ] Stuart C.J. set out a number of additional factors that should be considered in sentencing environmental offences: a.

Criminal Record 55 United Keno Hill Mines was convicted in 1979 for an environmental violation (see: R. v. United Keno Hill Mines Limited, Yukon Magistrate's Court, Whitehorse, January 19, 1979.) Crown has taken the position (and there is no evidence to the contrary) that the prior violation is not similar and bears little relevance to the present sentencing. b. Size of the Corporation 56 It is a dangerous practice for the courts, except in obvious cases, to presume through judicial notice the size of any corporation.

My conclusion that the accused is a major national corporation with substantial assets is based on the evidence volunteered by the President of the corporation. c. Illegal Gain 57 No evidence of any significance was placed before the Court of competitive economic advantages or illegal gains secured by the corporation through the commission of the offences before the Court. d. Damage to the Environment 58 The Crown's evidence of environmental damage was inconclusive, speculative at best and at worst, non-existent.

It is appropriate to assume all aspects of the environment are important, but no evidence was led to establish that the particular environment affected was of any unique significance. The penalty assessed does not embrace any considerations of environmental damage. Nothing proved; nothing to consider. e. Co-operative Attitude of Company 59 The Government was aware of the continuing violations of licensing limits by the corporation. The evidence does not portray a recalcitrant corporation dragging its heels in the face of pressing government demands.

At each juncture the corporation offered an explanation for exceeding its licence effluent standards, and provided a plan of action to rectify the situation. Only in the latter stages, immediately prior to these charges, was the Government not substantially mollified by corporate response. Nothing in the Crown's case fosters any suggestion of significant irresponsible corporate conduct. On the contrary there is a suggestion the Government department was content in the face of clear licencing problems to wait and see if the corporation would cure the problem. The evidence suggests

Government patience and tolerance partially explains the prolonged period of the persistent licence violations. In the absence of any explanation by the Crown to the contrary, I must give the benefit of the doubt to the corporation and avoid any significant negative inferences emanating from the extensive period of operating in excess of licensing requirements. … f.

Presence of Corporate Officials 62 The personal attendance of all responsible senior corporate officials in court, and the testimony of the corporate officials substantiate the defence submission of corporate remorse, contrition and good faith in desiring to resolve outstanding problems. Accordingly, this had a positive impact on sentencing. g. Supervisory Order under

Section 34 Northern Inland Waters Act, supra. 63 No order was requested by the Crown and no evidence was placed before the Court to warrant consideration of any need for such an order. [ 30 ] In applying these factors as determined in relation to United Keno Hill Mines Ltd. to the situation at hand:

a) There is no evidence that the Big River First Nation has had any prior violations of this nature.

b) The corporation in United Keno Hill Mines was a major national corporation, here, the Miami Gas Bar is a small entity, meant to be in the socioeconomic interest of the community and exists as a benefit to the community.

c) As such, we are not dealing with a question of illegal gain, but the delivery of a service, whilst providing entry level employment.

d) We note here that in this case, the damage relates to the preparation of emergency plans required in the storage of a potentially damaging substance. The fact that no damage has been recorded does not negate the need for an emergency plan.

e) Since 2011, the Big River First Nation has made efforts to work through all but two of the nine measures listed in the compliance order, relating to the emergency plan and documentation relating to various proof of compliance, in accordance with sections 8 and 9 of the original compliance order issued on October 8, 2014.

f) The Chief and many members were present throughout these proceedings.

g) A court order was issued on November 15, 2016, requiring that the Big River First Nation comply with the original compliance order. This order was consented to, by counsel for the Big River First Nation and the Crown. [ 31 ] Although there was no spill or any recorded damage to the environment in the case at hand, a risk still existed given the lack of compliance to the request to remedy the problems observed at the Miami Gas Bar within the stated deadline. The Court must also consider the existence of aggravating factors combined with the seriousness of the offence in question. In particular, the aggravating factors under ss. 287.1(2)(

a) and (h), the presence of any mitigating factors as well as the courts determination in United Keno Hill Mines are of importance here. The emergency plan was meant to address the lack of emergency plan in place. Documentation is required as proof that the compliance order has been complied with. Because there was not an actual spill does not mean that these violations are less serious in nature, but does present itself as a mitigating factor, as does the size and purpose of the business, as well as the lack of past convictions of this nature and the cooperation of the Big River First Nation in these proceedings.

[ 32 ] Given the nature of this offence, there was a risk to the environment. However, it would be unjust to subject the Miami Gas Bar to standards beyond their own revenue stream and the needs of the community, given its reason for existence as an essential service to the community. It is appropriate to look at the business from the standpoint of its own revenue stream, which for the past three fiscal years has fallen well under $5,000,000.00. The Big River First Nation itself shows revenues approaching $20,000,000.00 in each of the years from 2013 to 2015.

However, a majority of that revenue comes in the form of federal government transfers, which are meant for the community as a whole, towards necessities such as health and education. The use of this revenue could not be used to support the Miami Gas Bar as it would amount to misappropriation of funds by this same Crown. The Miami Gas Bar is meant as a supplement to this revenue, and as noted, a place where the community can access goods as they need them and gain meaningful employment.

It would be unfair to look at the business from the standpoint of simply a money-making venture. [ 33 ] There are also a number of factors that are mitigating, including the fact that Big River First Nation did attempt to comply with the EPCO, and were and are in the process of doing so. In fact, they were near compliance as of 2015, but not quite to the standards of Environment Canada at the time that the charge was laid.

This lack of compliance appears to be in relation to the paperwork and documents submitted, rather than the actual work done to remedy the risk to the environment. [ 34 ] Derek Klein, band administrator for Big River First Nation filed an affidavit and the Crown agreed that this could be brought before the Court for consideration in reaching a decision.

Basically, the relevant factor is the Big River First Nation has incurred financial losses via a third party, at no fault of the First Nation, that amount being $487,874.00, which after considering insurance claims might be reduced by $100,000.00. [ 35 ] In looking at this charge in the totality of the circumstances, if I were to place it on a spectrum, the offence would be at the lower end. However, it is essential to consider the impact a hazard like this could have on the offender’s community itself.

Ignoring a potential hazard such as this could lead to the contamination of a community’s precious resources, given that the community has a finite space in which it has access to water and other resources provided by the land. In essence, a fine is not only appropriate here, but is minimal in relation to the potential cost posed by any future environmental damage.

Therefore it is essential that the offender is deterred from any conduct that may increase risk to their own environment. [ 36 ] The Crown refers to the similar cases of Beardy’s and Okemasis First Nation, and the Makwa Sahgaiehcan First Nation (Loon Lake), where each band was fined $25,000.00 and $100,000.00 respectively for failure to comply with their respective orders as issued by Environment Canada. In each of these cases, the Band stores were registered as corporations, met the criteria under s. 272(3) and were treated as a corporation.

I have already determined that the Miami Gas Bar be treated as an individual. [ 37 ] In the Beardy’s case, the gas station was a registered corporation, while in the Loon Lake case, counsel jointly submitted that a $100,000.00 fine was appropriate. In a recent decision from January 23, the Clearwater River Dene Nation, 101077233 Saskatchewan Ltd. (Clearwater Store), and Band Administrator, Walter Hainault, were fined $100,000.00, $25,000.00, and $5,000.00 respectively after guilty pleas for failing to comply with an Environmental Protection Compliance Order (EPCO).

Again, the store in question here was clearly a registered corporation and thus was subject to the $25,000.00 fine. CONCLUSION [ 38 ] Given the serious nature of this offence, and the community’s interest in protecting the environment, there is certainly a need to take this charge seriously. [ 39 ] I find that the Big River First Nation, operating as the Miami Gas Bar, is an individual for purposes of CEPA . In consideration of a number of factors, including those listed in s. 287 a fine in the minimum amount of $5,000.00 is unreasonable, given the seriousness of the violation.

Conversely, a maximum fine would unnecessarily cause hardship and damage to innocent members of Big River First Nation. A violation of this type has the potential for a considerable impact on this community. The Big River First Nation land base will always be the same size, and any destruction of its land and/or water, albeit lake or ground water will be devastating for future generations. [ 40 ] As a result, a fine in the amount of $10,000.00 is appropriate in the circumstances. Dated this 14 th day of July, A.D. 2017, at Prince Albert, in the Province of Saskatchewan.

__________________________ G.M. Morin, J Appendix A 2(1) These Regulations apply to any storage tank system located in Canada in which petroleum products or allied petroleum products are stored and (

a) that is operated by a federal department, board or agency, or belongs to Her Majesty in right of Canada; (

b) that is operated by or belongs to a federal work or undertaking that is (

i) a port authority set out in the

schedule to the Canada Marine Act , (ii) an airport within the meaning of subsection 3(10 of the Aeronautics Act , or (iii) a railway; (

c) that is located on federal land or aboriginal land; or (

d) that is operated by a Crown corporation, as defined in subsection 83(1) of the Financial Administration Act , or that belongs to such a corporation.

10(1) Subject to subsection (2), the owner or operator of a storage tank system that has single-walled underground piping, other than one described in subsection 3(3), that is installed before June 12, 2008 must, within four years after June 12, 2008, (

a) temporarily withdraw that system from service in accordance with

section 43, permanently withdraw that piping from service in accordance with

section 44, remove it in accordance with

section 45 and replace it in accordance with

section 14; or (

b) permanently withdraw that system from service in accordance with

section 44, and (

i) in the case of a storage tank system that has shop-fabricated aboveground tanks or underground tanks, other than vertically-oriented underground tanks, remove the system in accordance with

section 45, and (ii) in the case of a storage tank system that has field-erected aboveground tanks or vertically-oriented underground tanks, remove all piping and other components that are outside the tanks in accordance with

section 45.

(2) The owner or operator is not required to comply with subsection (1) if, on June 12, 2008, that piping has (

a) in the case of steel piping, cathodic protection and leak detection, groundwater monitoring wells, vapour monitoring wells, single vertical check valves or mechanical line leak detection devices; and (

b) in the case of non-metallic or copper piping, leak detection, groundwater monitoring wells, vapour monitoring wells, single vertical check valves or mechanical line leak detection devices. 13 A person must not use a secondary containment area for storage purposes. 15(1) The owner or operator of a storage tank system must ensure that petroleum product and allied petroleum product transfer areas are designed to contain any releases in liquid form in the environment that occur during the transfer process. (2) Subsection (1) applies to storage tank systems installed before June 12, 2008 four years after June 12, 2008. 23(1) The owner or operator of a storage tank system installed before June 12, 2008 that has aboveground piping without secondary containment must visually inspect the walls of that piping within two years after June 12, 2008 to determine if the piping is leaking and after that inspection they must (

a) immediately (

i) use continuous external aboveground pipe leak monitoring for that piping, or (ii) implement a corrosion analysis program for that piping, developed and conducted by a corrosion expert, that includes at least an annual inspection; (

b) once each month, visually inspect that piping; or (

c) annually perform a piping precision leak detection test of that piping in accordance with

section 24.

(2) The continuous external aboveground pipe leak monitoring must (

a) be carried out using a sensor cable system designed either for installation on the bottom of the piping or for placement on the ground underneath the piping; (

b) be capable of detecting a leak rate of at least 0.38 L/h within 96 hours after the onset of the leak at the lowest expected soil temperature at the site where the sensor cable system is installed; (

c) be capable of locating the leak with an accuracy of ± 1 m; (

d) be capable of continuously monitoring sensor cable system integrity; and (

e) have an alarm located at a place of work where it can be readily heard and seen. 25(1) The owner or operator of a storage tank system that has turbine, transition, dispenser or pump sumps must, by June 12, 2010, visually inspect those sumps to determine if they are leaking and after that inspection they must either (

a) immediately use continuous sump leak monitoring for those sumps; or (

b) visually inspect those sumps annually.

(2) The continuous sump leak monitoring must (

a) use a petroleum product probe capable of detecting 1 mm of petroleum product or allied petroleum product on a concrete surface or 1 mm of petroleum product or allied petroleum product floating on the water within the sump; and (

b) have a probe that is capable of reporting the presence of petroleum product or allied petroleum product at the probe location within two hours of contact with that product at the lowest expected air temperature at the site where the probe is installed. 27 The owner or operator of a storage tank system that has tested or inspected any component of the system for leaks under sections 16 to 26 must keep a record that includes the following information: (

a) the test or inspection date; (

b) the storage tank system identification number; (

c) the allied petroleum product or the type of petroleum product stored in the system; (

d) the test or inspection results; (

e) the testing method;

(

f) the name and address of the individual and, if applicable, the company that performed the test or inspection; and (

g) the components of the corrosion analysis program referred to in subparagraph 23(1)(a)(ii). 28(1) The owner of a storage tank system that is installed before June 12, 2008 must identify the system by submitting to the Minister, in writing, the information set out in

Schedule 2 (

a) within one year after the day on which these Regulations come into force; or (

b) within two years after the day on which these Regulations come into force if they submit to the Minister a storage tank system identification progress report containing the information set out in

Schedule 3 one year after the day on which these Regulations come into force.

(4) The owner or operator must display the identification number in a readily visible location on or near the storage tank system for which the number was issued.