By Corey J. Morris and Lee-Ann V. Conrod
Editor’s note: Corey Morris is a biologist with Fisheries and Oceans Canada and provided expert testimony on the Gilbert Bay ecosystem in the court case described here. Lee-Ann Conrod is an attorney with the Public Prosecution Service of Canada and prosecuted the case.
An oil spill inside a Canadian Marine Protected Area (MPA) and subsequent legal actions generated considerable interest recently in Newfoundland and Labrador, Canada. The successful prosecution of the offending company illustrates how the particular circumstances of an MPA can inform such cases.
The spill occurred on 20 September 2009 inside the Gilbert Bay MPA, which is located along the south coast of Labrador, within a subarctic ecosystem in Canada’s northwest Atlantic. Gilbert Bay has been an MPA under Canada’s Oceans Act since 2005, with the conservation objective to protect the unique local cod population and its habitat. The spill happened as diesel fuel was being offloaded from the tanker vessel Mokami to the town of Williams Harbour; during the transfer, an estimated 70 liters of fuel leaked directly into the MPA.
A member of the Gilbert Bay Marine Protected Area Steering committee living near the MPA reported the spill to authorities. Although the ship’s owner, Coastal Shipping Limited, attempted a clean-up, the effort was deemed not suitable by Environment Canada authorities. The primary offenses considered by the court were failure to report the occurrence to an inspector and not taking all reasonable measures to prevent or mitigate impacts on fish and fish habitat. (These are offenses under the nation’s Fisheries Act.) Coastal Shipping Limited and the ship’s captain each entered a guilty plea in Newfoundland Provincial court in January 2013. The company now must pay a fine of Cdn $100,000 (US $101,000); the captain must pay Cdn $15,000.
Given the volume of fuel spilled, the penalties are relatively severe. MPA status played a significant role in the court’s decision to apply charges resulting in the fines. In addition, as part of a creative sentencing process, half of the monetary value was allocated to support education, restoration, and/or research pertaining specifically to the Gilbert Bay MPA.
Importance of MPA status and an endemic cod population
The MPA status in this case was taken very seriously: the court recognized the area’s sensitivity and the potential for harm from the spill. It was thought that extra diligence should be exercised by companies when operating in sensitive areas such as the Gilbert Bay MPA, particularly in the case of handling substances such as fuel oil and anything else that could cause damage.
Scientific research conducted in Gilbert Bay since 1998 has identified a locally adapted resident population of Atlantic cod. Referred to by locals as “golden cod” due to their characteristically golden-brown color, these cod are the most genetically distinct Atlantic cod population investigated in the western Atlantic. The timing and location of spawning is separate from other cod populations: eggs and larvae are retained near spawning areas in the MPA, and the distribution is almost entirely within Gilbert Bay. However, some adult cod migrate a short distance (~10 km) outside the MPA boundaries during a summer and fall feeding migration where they are susceptible to fishing. Currently the Gilbert Bay cod population abundance is low — due in part to fishing pressure during the migration — and there has been an increasing effort to protect the population. An oil spill in this region, given the continuing and increasing efforts to protect the population, was unfortunate.
The Terroco case from 2005 (www.elc.ab.ca/pages/publications/previousissue.aspx?id=288) provides five guiding principles for sentencing environmental offenses, against which the Gilbert Bay MPA oil spill was compared: culpability, acceptance of responsibility, damage or harm, prior record, and deterrence. A mitigating factor in the Gilbert Bay MPA oil spill case was a guilty plea, which demonstrated culpability and acceptance of responsibility. Aggravating factors included the fact that the spill occurred in the sensitive MPA and could have caused significant damage or harm. Furthermore, the company had been fined Cdn $15,000 for a previous conviction relating to an oil spill that occurred in Nunavut in 2004 (i.e., a prior record of offense). The significantly larger fine in this case was intended to serve as a meaningful deterrent to large oil distribution companies.
Of particular benefit to the MPA is that half the monetary value in this case was placed into Canada’s Environmental Damages Fund, to be spent specifically within the Gilbert Bay MPA. Section 79.2 of the Fisheries Act, pertaining to the Environmental Damages Fund, allows the Court to order such creative sentences. In this case the money will be available to fund much needed investment into the MPA, such as for environmental restoration, education, or research. Since its creation in 1995, the national fund has received over Cdn $4.5 million from 154 offenses and has funded 149 projects across Canada. The fact that the court specified the geographical area in this case — the Gilbert Bay MPA — means that the money will have positive beneficial results on the area directly impacted by the spill.
For more information:
Corey Morris, Fisheries and Oceans Canada, Northwest Atlantic Fisheries Centre, St. John’s, Newfoundland, Canada. Email: Corey.Morris [at] dfo-mpo.gc.ca
Lee-Ann V. Conrod, Crown Counsel, Public Prosecution Service of Canada, Halifax, Nova Scotia, Canada. Email: Lee-Ann.Conrod [at] ppsc-sppc.gc.ca