ey? ;
(except from Paptr prepared by

3.3 Cas Law - S8ection 35(1) Grant Audefrson for “Envi ronmental
° m) L hag lity Of Local Govern nae? ¥ Bhar ar
i : : : — f oF,
Section 35(1) [formerly Section 31(1)} is less favoured for

prosecution than Section 36(3), as the Crown has had difficulty
proving the existence of fish habitat on some occasions and the
Court of Appeal has limited the scope of the Section to viable
fisheries.

In R. v. Campbell River Lodge (1981) 3 F.P.R. 303 (B.C. Provincial
Court) a conviction was obtained under Section 35(1) where the
company had installed a retaining wall adjacent to the Campbell
River and disturbed gravel which supported salmon fry. A fine of
$2,500.00 was imposed on the corporation and a fine of $750.00 on
the individual who undertook the work..

However, in R. v. Richmond Plywood Corporation (1981) 3 F.P.R. 125
(B.C. Provincial Court) and in R. v. Fraser ‘River Harbour
Commission (1983) 3 M.P.R. 398 (B.C. County Court) the Crown was
unable to establish that areas affected by deposits of fill were
actually "fish habitat" beyond a reasonable doubt, and acquittals
were entered.

In R. v. MacMillan Bloedel Limited [1984] 2 W.W.R. 699 (B.C. Court
of Appeal) the company was charged under Section 35(1) in relation
to its logging operations near an isolated stream. The Court. found
that deposit of logging debris in the creek had a short-term
negative impact on small fish on the creek but that the fish "have
no commercial or sports fishing value".

The Court of Appeal referred to definitions of "fishery" as "areas
where fish are actually caught for commercial or recreational
purposes", On that basis, the majority held that the creek was not
a fishery and that constitutionally, “Section 31 of the Fisheries
Act should be restricted to fisheries". | | |

3.4 Case Law ~ Section 36 (3)

Section 36(3) [formerly Section 33(2)] is the federal legislative
provision with by far the greatest environmental significance to
date. In British Columbia alone, dozens of charges are laid under
Section 36(3) every year and the resulting fines are steadily
increasing. | | | |

Following is a summary of recent British Columbia cases involving
local governments charged with violations of Section 36(3):

R. v. District of Saanich (1978) 2 F.P.R. 163 (B.C. Provincial
Court) - District convicted for improper removal of debris from
creek. . : : a -