A B.C. provincial court judge has approved a charge under the Fisheries Act against the B.C. government and Executive Flight Fuel Services brought by a local resident.

Judge Mayland McKimm has approved a charge under Section 36 of the Fisheries Act stemming from a massive discharge of jet fuel into Lemon Creek last year.

The charge, filed by longtime Kootenay resident Marilyn Burgoon is under a section of the federal Fisheries Act that prohibits "the deposit of deleterious substances in rivers...or water where fishing is carried on."

Executive Flight Centre Fuel Services blamed the accident on the provincial government, alleging it received poor directions to the delivery point. (CBC)

A tanker truck was transporting fuel for helicopters fighting a nearby forest fire on July 25, 2013, when it rolled into Lemon Creek after heading up an unmaintained forestry road that couldn't support its weight.

The 33,000 litres of jet fuel discharged into the creek, entered the Slocan and Kootenay Rivers, killing fish and harming the rivers' aquatic ecology, according to court documents filed by Burgoon.

In December 2013, Executive Flight Fuel Services claimed it should not be held liable for the accident because it received poor directions to its delivery point from the province.

Tired of waiting for government

Claiming the federal government was moving too slow, Burgoon brought her own charge under the Fisheries Act against both the B.C. government and Executive Flight Fuel Services Ltd.

The act allows for private charges, but before a summons can be issued, the evidence must be reviewed by a judge.

Within days of the spill, dead fish were being found downstream.

​At a hearing held in Nelson on Nov. 27 before provincial court Judge Mayland McKimm, Burgoon provided evidence alleging both parties shared responsibility for the fuel discharge.

​“This is a very important victory for democracy," said Burgoon after the charge was approved.

"This provincial court decision means that government and industry are still accountable for their actions in a court of law. Even when government and industry drag their feet to avoid the investigation of environmental offences, justice can still prevail."

Burgoon said the right of a private citizen to lay a charge is a fundamental part of Canada’s justice system.

"If government is not going to apply the laws of Canada, it is up to the people to do so," she said.

"I had no choice but to launch a private prosecution and let a judge review the evidence"

Burgoon said she and her legal counsel were supported by the West Coast Environmental Law Dispute Resolution Fund.

A summons will now be issued and a court hearing date will be set in the new year.

Reasons for judgment

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