SOMBA K'E/YELLOWKNIFE - The NWT Power Corporation has been penalized $450,000 after Judge Garth Malakoe ruled a burst dike at the Snare Forks hydro facility that destroyed fish and fish habitat in nearby Strutt Lake in 2006 was both foreseeable and preventable.

Water poured out of a reservoir for 13 days after a dike breached at the Snare Lake Hydro facility on June 15, 2006. - photo courtesy of Fisheries and Oceans Canada

"This penalty, or the expense, will not be passed on to our customers," said Brian Willows, chief operating officer for the power corp., hours after the Jan. 19 territorial court decision.

He said an insurance claim has been filed, and failing its approval, the power corp. has a reserve fund set aside to cover expenses due to failed equipment.

The penalty breaks down into a $25,000 fine and an additional $425,000 payable to Fisheries and Oceans Canada to conserve and enhance fish and fish habitat in the NWT. The power corp. has three months to pay the penalty.

On June 15, 2006, 110,000 cubic metres of sediment was deposited into Strutt Lake after the dike, located about 140 km northwest of Yellowknife, burst and caused water to rush through a 40-metre hole for 13 days. The sediment settled and destroyed fish, fish habitat and vegetation in and nearby the lake. The number of fish killed was never determined.

The corporation pleaded guilty to a charge under the Fisheries Act on Jan. 12, 2010. The Crown sought a penalty between $600,000 and $700,000, whereas the defence asked for $200,000.

Malakoe explained that the two sides disagreed on the environmental impact the breach had on the lake's fish and fish habitat. He summarized Crown prosecutor John Cliffe's position from the Oct. 14 sentencing hearing describing the event as "catastrophic" with no evidence of recovery. The defence argued that long-term recovery was possible because nature will adapt to the "reconfigured" environment since the material deposited in the lake was "inert" and naturally occurring in the environment.

Malakoe accepted that there was harm to the environment.

In his ruling, the judge credited the power corp. for "quick and rigorous" efforts to contain and stabilize the environmental effects of the breach, for accepting responsibility and for co-operating with the investigation.

However, Malakoe also noted the breach was foreseeable and preventable. At the sentencing hearing, both the Crown and defence agreed the inaction of an engineer employed by the power corp., who received a report from an independent consulting engineering firm in August of 2005, was largely to blame. The report warned the water at the dike was at a dangerous level, but the engineer didn't forward the report to the appropriate personnel.

"The employee's actions sit there unexplained," explained Crown prosecutor John Cliffe in October.

"Why didn't he forward it? That remains unanswered."

Power corp. lawyer Bill McNaughton agreed.

"The person forgot about (the report), did not review it, did not pass it on," he said.

Willows said he could not comment on the engineer due to privacy reasons.

The day before the dike broke, the only employee posted at the site noticed the water was building up on top of the dike. The power corp. was unable to respond in time because of charter flight delays to the site and personnel qualified to deal with the situation were at different locations, explained McNaughton.

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