R. v. Kirby Offshore Marine Operating LLC, 2019 BCPC 185

Citation: R. v. Kirby Offshore Marine Operating LLC 2019 BCPC 185 Date: 20190812 File No: BB101093 Registry: Bella Bella IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. KIRBY OFFSHORE MARINE OPERATING LLC REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE B.G. HOY Counsel for the Crown: A.R. Clarkson Counsel for the Defendant: D. Rossi, W. Braul, M. Youden Place of Hearing: Bella Bella , B.C. Date of Hearing: July 16, 2019 Date of Judgment: August 12, 2019 OVERVIEW

[ 1 ] On October 13, 2016 in the early morning hours, the “Nathan E. Stewart”, (NES) an American flagged tug en route from Alaska to Vancouver, ran aground and sank at a reef next to Athlone Island in the Seaforth Channel. This occurred near Bella Bella in the traditional territory of the Heiltsuk Nation. The mishap is attributable to the operator of the tug falling asleep. Approximately 110,000 litres of diesel fuel and 2,200 litres of lubricants were released from ruptured tanks on the tug into the ocean.

Contamination of the environment occurred. [ 2 ] The defendant, Kirby Offshore Marine Operating LLC (Kirby), has pled guilty. A joint submission was made which was accepted by the court with total fines of $2,905,000 dollars imposed. These are formal reasons for judgement following upon oral reasons given on July 16, 2019. THE GROUNDING [ 3 ] There are 3 offences which the defendant has pled guilty. Count 1: unlawful deposit of diesel fuel contrary to ss. 36(3) and ss. 40(2) of the Fisheries Act . Count 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 Count 5: 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 . [ 4 ] On October 4 th one of Kirby’s tugs, the NES and a barge, left the Port of Vancouver with a load of refined petroleum products from Washington State refineries destined for the Ports of Skagway and Ketchikan in Alaska. After discharging their load they commenced their return trip to the Port of Vancouver. The route taken is known as the Inside Passage. [ 5 ] The NES is manned by a crew of 7.

This included the 2d mate and the master. On October 12 at 11 p.m. the 2d mate relieved the master at the helm. Between them they had been working 6 hour on/off shifts. Kirby had not submitted the 2d mate’s name and certificate of competency for inclusion in its pilotage waiver in advance of the voyage. [ 6 ] As the tug was in transit through the Seaforth Channel it ran aground at Edge Reef on the north side of Athlone Island. This occurred between 1:00 and 1:10 a.m. on October 13. The 2d mate had fallen asleep while at the helm. [ 7 ] The Canadian Coast Guard was notified at 1:20 a.m.

Meanwhile the crew of the NES attempted to surround the vessel with a boom to contain the diesel fuel that had spilled but it broke apart in the waves. Attempts were also being made to pump the diesel from the tug onto the barge in an effort to prevent further discharge into the environment. At 9:26 a.m. the NES sank and the crew evacuated. [ 8 ] 107,552 litres of diesel fuel and 2,240 litres of lubricants were released into the marine environment. As for the barge, it had separated from the tug and was later recovered undamaged. The NES was raised on November 14, 2016.

THE TALKING CIRCLE (VICTIM IMPACT STATEMENTS) [ 9 ] This sentencing hearing was conducted in the traditions of the Heiltzuk Nation with a Talking Circle. The Hereditary Chiefs, Elders, elected Chief, and others of the community sat with counsel and the Court in a circle. This was a solemn and tradition filled forum as the Hereditary Chiefs, wearing their full ceremonial garments, came to the Circle with their coppers to the crescendoing beat of drumming.

They placed their coppers on top of cedar boughs in the middle of the circle. [ 10 ] The speakers from the community were Pauline Waterfall, Kelly Brown, Bella Brown, Nadia Humchitt, William Housty and Marilyn Slett. They spoke with passion about the damage to their resources, the infliction of insult and trauma upon their ancestral lands and culture and their economic losses [ 11 ] The history of the Heiltsuk stretches 14,000 years. They are the 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.

It is the knowledge of their ancestors passed from one generation to the next that binds them to their lands and resources. Legend has the first ancestors of one of the tribes descend from the skies and landing 50 meters from the site of the spill. 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 a fear that traditional values will be compromised with contamination of the natural resources.

There is a worry that the spill will negatively impact the quality of other natural resources like the traditional harvest of herring roe on kelp or otherwise contaminate the ocean’s food chain relied upon by the Heiltsuk people. As commented by Mary Slett, this is their food basket. There is a concern over the economic impact due to the closure of a productive clam bed at the spill site. In a community suffering from high unemployment, the closure of this clam harvest negatively impacted 40 people. There is anger over the damage to their oceans which had been entrusted to them by their ancestors.

There is a breach of their traditional laws of respect and good care for the lands and oceans. THE LAW [ 12 ] The following decisions were referred to in sentencing: R v. Terroco Industries Limited., 2005 ABCA R. v. Brown, 2010 BCCA 225 R. v. Syncrude Canada Ltd., (22 October 2010), St. Albert Provincial Court (ABPC) R. v. Canadian National Railway Company, (15 June 2017), Edmonton Provincial Court (ABPC) R. v. Husky Oil Operations Limited, (12 June 2019), Lloydminster Provincial Court (SKPC) [ 13 ] Terroco is the leading case setting out 5 sentencing principles for environment offences. These are: (

i) culpability, (ii) prior

record and past involvement with authorities, (iii) acceptance of responsibility/remorse, (iv) damage/harm and (

v) deterrence. This was approved by the BCCA in R. v. Brown . CULPABILITY [ 14 ] This is a strict liability offence. Culpability is the dominant factor in sentencing environmental cases. The assessment must be done with a mind to determine the degree of blameworthiness. In this sliding scale, is the conduct an intentional act or a near miss of the due diligence standard. [ 15 ] In this case, the offence was not intentional as the 2d mate had fallen asleep at the helm.

However, it was not a near miss as the offence could have been avoided with the use of technology to alert the navigator for situational awareness during navigation, fatigue awareness programs and other preventative systems. [ 16 ] Within the range of culpable conduct, this would be towards the higher end of the degree of blameworthiness. PRIOR RECORD AND PAST INVOLVEMENT WITH AUTHORITIES [ 17 ] The defendant has no record. ACCEPTANCE OF RESPONSIBILITY [ 18 ] The defendant’s acceptance of responsibility is reflected by the guilty pleas. This is significant as it declares and acknowledges the wrongful conduct.

Furthermore, such pleas saves considerable court time. As well, the defendant is remorseful and repeats his apology for this mishap. [ 19 ] The defendant’s post offence conduct also establishes acceptance of the harm done. They immediately attempted to mitigate the diesel spill by pumping some of the fuel from the NES to the barge and tried to use a containment boom albeit without success. They were cooperative with the authorities as the matter was investigated.

Other measures included sampling and environmental assessments, compensation to government agencies for their response to the site, compensation to the Heiltsuk First Nations for their response and assistance in cleanup and other losses and implementing new policies and equipment improvements to prevent such mishaps in the future. [ 20 ] The specifics of monies paid are $1,940,572 to the Canadian Coast Guard, $409,565.62 to the provincial government and $3,600,000 to the Heiltsuk First Nations; $200,000 of which relates to fisheries losses. These payments total $5,950,137.62.

There were other costs relating to the salvage. DAMAGE/HARM [ 21 ] Terroco speaks about assessing the degree of harm that had occurred in evaluating the sentence. If there is actual harm, then this is an aggravating factor and especially so if the harm is readily foreseeable. However, as further commented in Terroco , determining actual harm may be a difficult task given the gradual and cumulative effects of pollution. Nonetheless, the court noted: “… actual, identifiable injury is an exacerbating factor, while the lack of an actual injury is not a mitigating factor ” (para. 47).

Terroco also identifies an evaluation of the potential for harm. In this regard the court said: 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. (para. 48) [ 22 ] In the case at bar, 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 nonetheless fairly close to the community of Bella Bella which has a population of about 1,500 people. It is an area that is actively used by the Heiltsuk people to access natural resources. [ 23 ] The nature of diesel is highly deleterious – even small amounts can kill fish. The spread of water borne contaminants over vast areas of the ocean in such a sensitive environment is an aggravating element. Furthermore, there was actual harm as evidenced by oiled shorelines and oiled birds.

The risk of harm still exists as seen by the uncertainty of the state of the health of the clam bed at Athlone Island. Furthermore, this area is the habitat of COSEWIC (Committee on the Status of Endangered Wildlife in Canada) listed fish and migratory birds such as sea otters, northern abalone, killer whales, humpback whales, harbour porpoises, stellar sea lions, marbled murrelets, great blue herons and western grebe. It is a sensitive environment that requires care to guard the well-being of the ocean and its wildlife.

DETERENCE [ 24 ] Specific and general deterrence are dominant features in sentencing pollution cases. I am certain the defendant has been deterred. However, it is the message to others that must be clear and unambiguous. This is particularly so as the site of the spill is part of the Inside Passage. This water way is used by cruise ships, ferries, tugs, pleasure crafts and other vessels as they weave their way through innumerable islands by a web of interconnected channels as they transit up and down the BC coast.

The objective of deterrence is to ensure that not only the offender but as well all others are acutely aware that they owe a high duty to maintain a vigilant eye in protecting this particularly sensitive environment. Nothing less will suffice. KIRBY REVENUE [ 25 ] The defendant, Kirby Offshore Marine Operating LLC, operates one of the largest inland and offshore tank barge fleets in the United States. It is noted Kirby had revenues for 2017 of $375M USD and in 2018 $338M USD.

SENTENCING AUTHORITIES [ 26 ] As counsel commented, finding analogous cases is a difficult task given the wide range of sentences and numerous factors for sentencing considerations. The following cases were referred to in submissions. [ 27 ] In R. v. Syncrude about 1,600 birds landed in an oil sands tailing pond and died. After a prolonged trial the defendant was found guilty with a finding that the company’s management policies were deficient and bird deterrents were not properly implemented. The company had no prior record.

Remedial improvements for bird deterrence improved and after conviction apologies were made. The company had annual revenues of $8B. A joint submission was made with a fine imposed of $300,000 which was the maximum limit of the Migratory Birds Convention Act, 1994 at that time. Other penalties included $2.1M for conservation programs and the maximum of $500,000 for a provincial offence. It was a total of $2.9M. [ 28 ] In R. v. Canadian National Railway Company, unbeknownst to the defendant, diesel had overflowed from a sump and into a storm sewer.

There was preventative equipment in place but again the defendant was not aware that the sensor and alarm system were not in operation. 90 litres of diesel was discharged into waters frequented by fish. There was no actual harm as may be evidenced by dead fish and policies were in place prohibiting this type of discharge. The defendant had a significant history of Fisheries Act infractions and warnings. CN earned $12B per year. Early guilty pleas were entered and a joint submission of a $2M fine was imposed under the Fisheries Act and $500,000 for an improper storage tank management system.

A total fine of $2.5M was imposed. [ 29 ] In R. v. Husky Oil Operations Limited, a spill from a pipeline had occurred with 225,000 litres of crude oil and condensate deposited into the environment of which 90,000 litres entered the North Saskatchewan River. An alarm system was in place but the defendant was unaware the spill had occurred. The affected watershed encompassed 25 First Nations communities, two local cities and a hospital. The defendant was cooperative with the investigation and conducted post-incident clean-up and monitoring measures. The company had revenues of between $13B to $21B per year.

A joint submission of $2.5M on the Fisheries Act charge and $200,000 on the Migratory Birds Convention Act for a total of $2.7M was accepted by the court. There was as well a fine of $1.12M for provincial offences that was imposed. STATUTORY PENALTIES [ 30 ] The Fisheries Act was amended on November 25, 2013. Sentencing ranges were significantly increased. Previously there was no minimum and a maximum fine of $300,000.

There is now a minimum of $100,000 and a maximum of $4M. [ 31 ] The Migratory Birds Convention Act, 1994 was also amended on July 12, 2017 which changed the maximum fine of $300,000 with no minimum to a maximum fine of $4M. The defendant is entitled to the benefit of the lesser penalty by virtue of s. 11(

i) of the Charter as that was penalty at the time of offending. [ 32 ] The Pilotage Act has a maximum fine of $5,000 with no minimum. JOINT SUBMISSION/SENTENCE [ 33 ] This case was presented as a joint submission. Upon careful review of the circumstances, the sentencing principles and authorities, I have come to the conclusion that the proposed sentence is appropriate. [ 34 ] The Heiltsuk Nation pointed out in the course of the Talking Circle that no amount of monetary fine could justify the damage that had occurred to their traditional lands. Their expressions of frustration and anger are understandable.

Their heritage and traditional lands and waters were contaminated by the spill. These legitimate sentiments could never be properly addressed within the context of environmental prosecutions. The objectives of sentencing are those multi-layered elements which have been reviewed. It is distinctly different from the considerations and redress available in a civil court. [ 35 ] As well, in the course of the Talking Circle, it was asked that Kirby be banned from their traditional waters.

Within the framework of the operative legislation I do not have the jurisdiction to make such an order. [ 36 ] The fines I impose are as follows: Count 1- a fine of $2.7M under the Fisheries Act Count 2 – a fine of $200,000 under the Migratory Birds Convention Act, 1994 and Count 5 – a fine of $5,000 under the Pilotage Act . [ 37 ] All fines shall be paid by August 16, 2019. [ 38 ] Furthermore, by joint submission, I also direct that the fines imposed be paid to the Environmental Damage Fund.

This shall be administered for the benefit of the Heiltsuk First Nations for the purposes of restoration of the habitat affected by the environmental damage. ______________________________________ Judge B.G. Hoy Provincial Court Judge