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What shielding Water Act violators says about BC’s environmental enforcement

15 October, 2013

Last Tuesday (October 8th), the Province paper had an important story – Environment ministry continues to shield Water Act violators – about the Ministry of Environment’s refusal to identify companies and people that don’t pay their fines for violating the Water Act.  The story is based, to a large degree, on a report (Closing the Gap) that we obtained through the Freedom of Information Act and wrote about last year – Don’t do the environmental crime if you can’t pay the fine.  The Province story explains:

Last year, West Coast Environmental Law obtained a copy of an internal Ministry of Environment report through a Freedom of Information request.

That 2010 report found that 66 per cent of fines issued by the court for Water Act violations went unpaid and that 40 per cent of court fines issued for all environmental violations went unpaid. It did not reveal names of late-paying violators or those with outstanding fines.

The ministry’s report included a recommendation that the ministry look into publishing a list of outstanding fines for all environmental violations. … That was three years ago, but the ministry has not followed its own recommendation. That public list doesn’t exist yet and for the most part we don’t know which fines have been paid and which have not.

Now, that’s not to say that publishing the names of people who don’t pay their fines would solve the more fundamental the serious concerns about environmental enforcement in BC, but the reluctance of the government to demand accountability of convicted environmental criminals seems emblematic of a broader reluctance to treat environmental offences seriously (which we’ll return to in a moment). 

A particularly egregious fact not highlighted in the Province article is that, according to the 2010 report, many of the largest fines are owed by large corporations

[L]ower value court fines tend to get paid, but higher fines remain unpaid (this is more often fines to corporations)... When looking at the percentage of violators who pay their fines, the rate is 74%. This is due to the fact that the majority of lower court fine amounts ($500-$5000) get paid, but there are a small number of high court fine amounts ($10K +) that are not paid.

An example of that, covered in the Province story, is the $54,000 fine paid, eight months late, by a numbered company affiliated with the Aquilini Investment Group that illegally diverted water into a Cranberry field.  This fine was only paid after its non-payment was uncovered and publicized by a local environmental group. 

Privacy Concerns and other legal reasons

First, why isn’t this happening already?  Why isn’t BC publishing the names of people who won’t pay their fines?  The government, while acknowledging that the rate of collection continues to be “unsatisfactory,” says that it would not be appropriate to release the names due to “privacy concerns and other legal reasons.”

In terms of “privacy concerns”, the Ministry (to its credit) already publishes the names of everyone who commits an offence under an environmental statute in a searchable registry and in quarterly reports.  The obvious question is, if names of offenders can be published, why can’t names of offenders who haven’t paid their fines (who are arguably more culpable than offenders who pay promptly)? 

And (in terms of legal concerns) as we’ve reported previously, the BC Government amended the Ministry of Environment Act over 2 years ago to allow it to publish the names of offenders who had not paid fines, including “the date it was due and the outstanding amount.”

In other words, the Ministry’s excuses don’t hold water (pun intended), and we’re left without a convincing explanation as to why the names of non-paying offenders haven’t been released.   

Escalating consequences

Negative publicity (being publicly identified in a list) is not the only way to boost payment of fines.  My wife recently received a ticket for mistakenly parking in the wrong place, at the wrong time.  As is standard for such tickets, if she doesn’t pay within 2 weeks, the amount she has to pay is double.  But, for environmental fines, as we wrote last year, the real problem in terms of collection seems to be that there are no consequences to not paying for environmental fines.  In addition to publishing information about overdue fines, we would suggest:

  • Interest should be charged – Not paying promptly needs to mean that the offender will pay more.  It’s outrageous that people who receive traffic tickets have this type of consequence, but companies that illegally kill fish don’t. 
  • Jail Time – For serious offences, an offender could face a fine or jail time, but jail time in environmental cases is generally used when there is a history of non-compliance.  However, if a court imposes a fine (rather than jail time), yet the offender is not paying the fine, then jail should be an option in some cases
  • Suspension of operations – If the offender is carrying out environmentally dangerous operations, can we trust them if they won’t even pay their fines?  We would suggest that the Ministry of Environment be given the powers to suspend permits or approvals, or to issue stop work orders, for a company that won’t pay for its offences?
  • Increased scrutiny – A company that offends should face increased inspections and scrutiny by the government, but that should go double for companies that offend and then won’t pay up. 

 

The broader context – we’re not enforcing the law

This reluctance to take a hard-line with convicted environmental offenders is particularly disturbing given the collapse of environmental enforcement in BC, and, indeed, in Canada.  As a society, we are not taking environmental laws seriously.  We’ve explained previously that there are fewer and fewer people charged with environmental offences each year. 

… 2009 had the lowest number of [environmental] convictions since before 1990. … What’s really disturbing is not just that the 2009 enforcement levels are so low, but that so are the 2008 levels, and the 2007 levels, and the figures for every year since 2003.  2009 is very low, but we haven’t seen a good year of environmental enforcement for most of a decade.  Poor environmental enforcement is becoming the norm in BC.

And that’s not, as the government occasionally tries to suggest, because fewer people are committing environmental crimes.  We know that because when government goes to look, it finds all kinds of offences – they just don’t charge people for them.  Take, for example, this story by Mark Hume of the Vancouver Sun (our commentary here) on a government report documenting an “epidemic” of violations of the Water Act:

On two dozen lakes selected from around the province, researchers found 420 private property Water Act permits had been issued – but more than 4,000 waterfront “modifications” had been done. That means more than 3,500 lakeshore projects were apparently built without authorization. … This isn’t just a case of widespread non-compliance – it’s an epidemic.

And earlier this year the Wilderness Committee released a separate government report identifying 700 violations of environmental laws (primarily the Water Act) by 16 river diversion Independent Power Projects (IPPs) – a shocking average of 44 violations per operation.  

The crisis in environmental enforcement is national – not just provincial.  Our friends at Ecojustice have documented the collapse in environmental enforcement at the federal level, while Nimonik, a company that tracks environmental compliance issues, has observed similar trends in other provinces.  In a blog post entitled “Canada’s Environmental Laws are not applied,” Nominik explains that “The principal issue is that we do not seem to have the will to enforce those laws.”

Whereas the United States has a centralized and freely available database of environmental infractions, Canada's reporting of environmental infractions is sparse at best. No provincial or federal government offers an open database of environmental infractions – let alone the inspection status, warnings and other pertinent information. If an environmental law is broken and no one inspects, was there ever an infraction? …

Of course, enforcement is not a magic wand, but as any experienced criminal will tell you, the threat of enforcement is real and meaningful. Let's change things – let us publish inspections, follow-ups and warnings so that companies are pressured to improve their environmental performance – good companies who believe in environmental responsibility will be rewarded and poor performance will be improved!

Conclusion

The BC government charges or tickets such a small number of environmental offenders as it is.  What does it say when we can’t even get those offenders to pay.  As a parent, I know that it’s important to set boundaries, and to follow through on the consequences if those boundaries are broken.  In BC, we may have set environmental boundaries with impressive sounding consequences, but we are failing to follow through – both in terms of charging major offenders, and in terms of making sure that they pay for the consequences. 

By Andrew Gage, Staff Lawyer