Keller Foundations pleaded guilty to one count under the Federal Fisheries Act and was sentenced in North Vancouver Provincial Court on Friday.
The company had been hired by the Ministry of Transportation and Infrastructure to do concrete work on an overpass near Horseshoe Bay. According to an agreed statement of facts submitted to the court, on April 18, 2018, a Keller employee poured water onto a stockpile of concrete byproduct, washing its leachate through a rusted culvert and into the nearby creek. A plume of high-pH water flowed down to Howe Sound, killing 85 cutthroat trout.
It was only because volunteers from the West Vancouver Streamkeepers Society noticed the dead fish and tracked the pollution to its source that the problem was corrected and flagged for further investigation by Environment Canada.
After an four-year-long investigation, the company was charged last July with two counts of depositing a deleterious substance in water frequented by fish.
In court on Friday, Crown lawyer Adrienne Switzer said Keller’s moral culpability for the incident fell “somewhere between negligence and recklessness.”
“The stockpile was perilously close to the creek and it was neither on a lining, nor covered and those were simple and easy steps that might have prevented the spill,” she said.
Keller’s lawyer Will Shaw said the company had hired environmental consultants and had an environmental protection plan in place, but he added, “Unfortunately, it did not work as intended.”
“There was certainly no direction to do this, no intention to do this,” he said.
Both the Crown and Keller’s defence agreed that a fine of $1 million would be a fit sentence. The act allows for penalties to fall between $100,000 and $4 million.
“I suggest that will achieve the deterrence that the case law demands,” Switzer said.
Before the sentence was handed down, Keller Foundations vice-president Brian Wilson addressed the court to take responsibility for the spill and say the company has since changed its training and environmental monitoring and planning practices.
“We acknowledge and regret that our error here resulted in damage in the environment. As a company, we take environmental and regulatory compliance very seriously. We have heard from the citizens and we will do better in the future,” he said.
In a community impact statement submitted to the court, Sḵwx̱wú7mesh Úxwumixw (Squamish Nation) officials said the spill represented a threat not only to the salmonids, which are in peril everywhere, but to the Nation’s way of life more broadly.
“Nature is our economy. Incidents like this affect the cultural and social wealth of who we are. Water provides life to everything on this waterway,” the statement read. “The Squamish Nation fears for future generations. What will be left for us to feel our inherent connection to land if our natural resources are not respected and cared for properly?”
In his ruling, B.C. Provincial Court Judge Robert Hamilton said he had little discretion to deviate from the sentence sought by both the Crown and defence when there is a joint submission, but he believed the $1-million fine was fit.
“Counsel have argued, and I agree, that the conduct of Keller in this case can be placed somewhere between negligence and recklessness. Clearly, the problems associated with the stockpile were not an accident and with more due diligence, maybe, this tragedy would have never had happened,” he said.
Shaw stressed that, despite the size of Keller’s U.K.-based parent company, the fine will send a stern message.
“It is not just the cost of doing business,” he said. “The $1-million fine is a significant amount.”
Under the law, fines of that type must be paid to the federal government’s environmental damages fund, which is used for environmental improvement projects. In this case, the fine comes with an explicit recommendation that the money be spent on fish habitat projects on the North Shore.
Outside the court, West Vancouver Streamkeepers past president John Barker said he was relieved to see the case resolved after so many years, and added he believes it was a just sentence.
“They’re a major corporation, which was a good record but they lacked oversight and proper conduct,” he said. “The message is that corporations have to be more attentive. And this is the way the government brought the standards and the financial impact on corporations when they fail the act…. There’s got to be a better way to treat the environment and the animal world that resides there.”
Although at the time of the spill, the Streamkeepers believed the entire population of cutthroat trout on Larson Creek had been killed, there were likely survivors in side channels and eggs under the gravel, which have helped the species rebound on the creek.
“The fish have returned and through our trap-and-release program, we’ve determined that there are resident cutthroat trout back in the creek,” said Keith Pelletier, co-chair of the stewardship group.
Barker and Pelletier agreed there is no shortage of potential habitat restoration projects that the $1 million could be put toward in North Vancouver and West Vancouver, which would benefit struggling salmonid species.