IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           THE COURT:  I do not know whether counsel knew I was coming to do this matter today, and it was not planned for me to be here necessarily until a little while ago, but when I was told that I was coming to do this matter today, I was very interested because it is an area of the law that, first of all, I have had an interest in since the time I went to law school.  And secondly, I have had either the opportunity or the misfortune of having to deal with these types of cases on more than one occasion.

[2]           I am going to go along with the joint submission, so let us get that out of the way.

[3]           I would start off by saying that, first of all, of the amendments that Parliament has come up with regard to the Fisheries Act, are a reaffirmation of the importance of the environment to the citizens of Canada whether it be at a national level, a provincial level, or a local level. 

[4]           It is particularly apropos in this region of the province where we live, effectively, in a wild lands environment.  There are little towns and little cities in Northern British Columbia, but you can drive for a hundred kilometres and not see another community.  You see the forest; you see the lakes, the rivers and the animals that come close to the highway.  It is fascinating to people from Europe who cannot drive twenty kilometres without seeing another town, to understand the vastness of this province and the resources available.

[5]           So, into that environment we permit, as citizens and to gain economic benefits, industrial corporations to come in to mine, or to mill wood, or in this case, the case of Mackenzie Pulp, to manufacture pulp and paper, and we enable them to do that by permitting them, under various licences, to utilize the raw resources, be it wood fibre, or in this case the water that comes in to run the mill and the water that is allowed to be discharged along with the components that are allowed to be put out of the stacks. 

[6]           To make a product requires a large capital expenditure on the part of the company.  It requires a lot of mechanical or chemical processes, some of which inherently are concerning or dangerous, although they are for the most part handled in an appropriate fashion.  It requires, to make a product like a pulp and paper, a discharge of effluent both into the water and into the air.  That is a reality. 

[7]           As Canadians, we have over the years recognized that although that is a necessary part of the industrial process, we require industrial complexes to maintain themselves within the parameters of their permits because they are discharging things into the environment which are, in themselves, deleterious to the environment.  They can, of course, do so in a fashion that allows the items being discharged to be properly treated before they are discharged, to be scrubbed in the case of stack discharges, to pull back some of the items that normally would go up with the stack.  Or in the case of the water, to properly aerate it, allow it to settle and clarify, before it is finally discharged into the main water source.

[8]           The two incidents that are involved in the Information that is before the Court on July the 8^th, of 2014 and September 6^th, of 2016, as described in the Agreed Statement of Facts, were items that should concern all British Columbians, and in fact, was of major concern to the various regulatory agencies for two reasons.  One, the lethality of the water being discharged; and two, the excess amount of the discharge itself, which was outside the permit amounts. 

[9]           Mackenzie Pulp did the correct thing by immediately informing Provincial Emergency Program with regard to the incidents, and they have, by virtue of their guilty plea here today, accepted the corporate responsibility for those errors.

[10]        I accept what counsel have stated as part of the submissions in this case, that the culpability of Mackenzie Pulp is in the middle range, the low end being a complete mistake that nobody could have predicted and the high end being a let us dump it anyway because we can make more money making the extra paper than we will ever be fined for dumping the bad discharge, attitude.

[11]        The incidents occurred in circumstances that could be fairly stated to be the company could have ensured that they had taken remedial steps so that they would not occur.  They did not do so and that resulted in what occurred.  In the case of, for example, the September 6th, 2016 incident, it was during start-up.  The discharge was exceeded, lethality was exceeded.  One way to anticipate that for future start-ups after mill work is being done to improve the mill would be, of course, to ensure that the settling tanks and the holding ponds are already at a low level, or alternatively, if necessary, build an additional one.

[12]        Crown is quite correct, that it is a large capital expense.  But it would have assisted in avoiding what occurred on the occasion in 2016 which not only caused the problem, but realistically, I think any corporation, and Mackenzie Pulp is no different, would have resulted in a certain corporate embarrassment.  What is occurring here in this courtroom today with the fine is going to be a matter of public record.  It will show up certainly within government documents that the various Ministries share among themselves.  It will no doubt be in the local paper and may even receive some provincial or national coverage, all of which is, in my view, is an additional consequence the company has to bear as a result of these events.

[13]        I have taken into account the fact that there have been previous incidents involving Mackenzie Pulp with government authorities through the warning letters and the previous conviction.  Again, it is one of those things that in an effort to maintain profitability and keep the mill running so that the community can benefit, the people in charge of the circumstances surrounding the discharge of effluent, whether it be into the air or the water, have to make sure their voices are heard so that when people are trying to ramp up production and the production manager is saying we have got to go, go, go, somebody from the environmental department has to say well, wait a minute, we cannot go at that rate because this is what is going to happen.  Often that voice is not always heard as well as it should be, and I take from the comments made in paragraphs 15 through 21 of the Agreed Statement of Facts, that sometimes the people within the mill who are in charge of trying to protect the company from having problems as a result of their permit exceedances, are not always the people who are heard.

[14]        I accept that no "harm" was proven in this matter.  There were no dead fish popping up along the shoreline, but that does not mean that it did not, for example, interfere with the viability of the reproduction of fish that swam through it, or perhaps it caused some fish to lose some of their motor control, so that they were preyed upon by other fish.  But there was no huge toxic bloom or anything like that.

[15]        I think the penalty suggested is appropriate from a deterrent perspective.  Certainly it is a deterrent to Mackenzie Pulp.  When the numbers get that many zeros on it, anybody at the boardroom table is going to sit up and take notice. 

[16]        I think it also serves as a general deterrence.  Pulp mills throughout North America and even areas of Western Europe operate in a similar economic and business environment.  They are often competing with each other and they will take notice that if they get in breach of the regulations in their particular country, state, or province, that they may be facing similar fines. 

[17]        The fact that the draft order proposed to the Court, in addition to the fine amounts, also proposes and in fact requires Mackenzie Pulp to undertake an audit with regard to their operations to make recommendations to bring forward changes in either equipment or practices to prevent or, at least greatly ameliorate, the future chance of deposit of deleterious substances into the environment is a good step forward, and should be something that will allow those concerned with the past events to be comforted that Mackenzie Pulp is taking its -- as described by Ms. McLean, its corporate and social responsibilities seriously.

[18]        That being the case, I am going to grant the order in the form drafted by counsel, save and except I think we should vary the term of the paragraph concerning reference to s. 40(6) and 40(7) to read that "shall be paid pursuant to s. 40(6) of the Fisheries Act to Receiver General of Canada, and pursuant to s. 40(7) recommended that it be in trust for the Environmental Damages Fund’, so that the people who are left to act on this order do not think, or do not conclude, the Court has ordered under 40(7) something which it is not permitted to do.

[19]        I do not know if you have the capacity, Mr. Clarkson, to make changes on the fly here and I can sign it today, or whether you want to just make them later and send them to my chambers in Prince George.

[20]        MR. CLARKSON:  No, I have a USB key, I don't know if the court clerk can help me print a new copy of the order.  Thank you.

[21]        THE COURT:  Okay, well I will leave it to you and your friend to sort of work out the wording of that.  I just do not want it to look like I am ordering something under 40(7) when the section itself says I can only recommend.  That is what I want to make sure.

[22]        MR. CLARKSON:  Yes, that's fair.

[23]        THE COURT:  Okay.  Finally, I would say that I applaud the people who are here today from Mackenzie Pulp.  In the three or four other previous cases I have done involving corporate errors and affecting the environment, I do not think I have ever had anybody from the company except their lawyer show up.  Obviously Ms. McLean, as counsel, did well because it is one of the facets that the cases talk about that judges tend to like to see people who are actually involved in the operation of the company come to the court to understand the court's reasoning, and also to be there as a public showing, perhaps not a big public today, but a public showing of the company's corporate acceptance of the importance of this matter to both the company and to the community at large.

[24]        So, if you want, Mr. Clarkson, I will tell you one other area that needs to be amended, the clerk can advise you of that, pursuant to the Chief Judge’s direction, my title is The Honourable Regional Administrative Judge M. Brecknell, so if you are going to make changes, you might as well do that.

[25]        MR. CLARKSON:  Thank you.

[26]        THE COURT:  I would be happy to sign it later today.  I am here for the duration in any event.  Madam Clerk, here is Exhibit 1 to mark.  Anything further before we take the afternoon break, Counsel?

[27]        MR. CLARKSON:  No, Your Honour.

[28]        MS. MCLEAN:  Nothing.

[29]        THE COURT:  Okay, thank you.

[30]        MR. CLARKSON:  Thank you.

[31]        THE COURT:  The one thing I did not say, counsel, when I was giving my reasons earlier is that the sort of detail in what the actual order is, which is that there will be a fine of $900,000, payable by Mackenzie Pulp Mill Corporation, payable over a period of five years on April 19th of each year, in the amount of at least $180,000.  That, of course, provides the defendant with the ability to pay the fine off sooner if they want.

[32]        I also want to thank counsel for their work in putting together the material, because it made it much easier for the Court to both follow the submissions and agree with them.