Prince Rupert Port Authority will be challenging the provincial government’s environmental charges for burning treated wood for five days on Ridley Island.
A pre-trial conference was held at the Prince Rupert Courthouse on Wednesday, Dec. 19. While no actual facts were agreed to on the record, the port’s defence advised they would be forthcoming with constitutional arguments.
The B.C. Ministry of Environment laid four charges under the Environmental Management Act for an incident involving burning prohibited materials between June 22-27, 2017, on Ridley Island. Neighbouring residents from Port Edward complained about the smoke prompting a Conservation Officer to investigate.
Following the incident, the Prince Rupert Port Authority (PRPA) apologized to the community in a public statement.
“PRPA misclassified some non-organic materials in that burn as organic and subsequent to discovering the error we apologized to the community for that error in the aftermath. Obviously we’ve worked extremely hard and we take a lot of pride in being an organization that is prioritizing the environment and our operations over time, and as we said then, we’ve made and we will continue to make changes to make sure that doesn’t happen again,” said Ken Veldman, VP of public affairs and sustainability at the Prince Rupert Port Authority.
At the pre-trail, defence lawyers, Michael Manhas and Matthew Keen from Northon Rose Fulbright based in Vancouver, made it clear that the port authority plans to challenge the provincial charges by raising constitutional arguments and claiming Crown agent immunity.
“We are going to be challenging the provincial government’s charge in this case on a constitutional point that the provincial law doesn’t apply to federal agencies. That principal of maintaining federal jurisdiction over the federal land that we administer is important to our ongoing responsibilities and operations. In other words, there’s a precedent here,” Veldman said.
Judge Dwight Stewart set Feb. 15, 2019 as the due date for the defence lawyers to submit their written defence and give constitutional notice.
In another matter raised at the pre-trial, Judge Stewart said that as a judge in a small town he is concerned about the how this will appear to community members as he is familiar with senior management at the port authority.
“With a matter of this nature there would be problems with matters of credibility,” he said.
While he feels he can adjudicate fairly, he worries how this may appear publicly. Judge Stewart will continue as the case management judge but another judge may be called in for the trial on June 10, 2019.
A second pre-trail date will be arranged for the last week of February.
10 fisheries violations
The port authority, DP World and its contractors for the Fairview Terminal expansion were also in court on Dec. 19 for another matter.
On Nov. 2, Fisheries and Oceans Canada (DFO) laid 10 charges for fisheries violations against the port and its partners for work that was carried out during the terminal expansion that allegedly resulted in “serious harm to fish”.
The next court date has been set for Jan. 30 at 9 a.m. to consult with legal counsel.