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In yet another miscarriage of justice, Gemtec and Robert Lutes have lost their appeal from conviction under the Fisheries Act. His case now stands as a Canada-wide precedent that consultants can be convicted for their clients’ discharges, and that you must confirm in writing anything the government tells you.

Gemtec was a consultant to the City of Moncton in 1994 when it closed its old landfill, next to the Peticodiac River. The landfill had always let leachate flow directly into the river. The landfill closure was done under the direct supervision of the relevant regulatory authority, New Brunswick Department of Environment, which instructed Gemtec to design the closure using a “mixing zone” approach. Gemtec has now been convicted of breaching the Fisheries Act for doing precisely that.

The Fisheries Act is administered by Environment Canada, but it left all landfill regulation to the province. Lutes telephoned Environment Canada to confirm that he should be taking direction on the leachate issue from New Brunswick Environment, and then did so. As a trusting person, he failed to confirm this to Environment Canada in writing; if he had written such a letter, he and his company would not have been convicted.

The province had long governed landfills using mixing zones and did not want to pay the cost of encapsulation. The province therefore permitted leachate to enter watercourses if they had enough “assimilative capacity” to dilute the leachate to levels acceptable to fish, i.e. if fish could simply swim around the affected area. The method of calculating “assimilative capacity” was also used by Environment Canada at the time, which confirmed that the leachate was well within the river’s assimilative capacity. Gemtec reduced leachate flow into the river by adding a clay cap, but Gemtec was never retained to collect, contain or eliminate the leachate.

According to the court, Gemtec’s failure to contain the leachate was enough to make Gemtec liable for leachate discharges from the landfill, even those discharges that occurred years after the landfill was closed. The companies that lost the contract, and who also would have followed their province’s directions, must be feeling lucky today. Too bad the enthusiastic prosecutors didn’t go after the provincial regulators who set the landfill closure design specifications and the budget, or after the federal government agencies that caused so much more damage to the river by building a giant causeway. Unfair prosecutions of good people do nothing to build respect for the rule of law.

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