Hate Arguing with Lawyers

Like Derek Key I often cautioned my colleagues in the media not to rush to judgement when there was a fish kill.  Heavy algae blooms can suck the oxygen out of water causing anoxic conditions and fish mortality, lightening could possibly stun and/or kill fish. Mass Jim Jones style suicide is unlikely. 

 And I was right with Mr. Key through the first two paragraphs of his July 13th commentary in the Guardian:

"As Islanders we have witnessed the deterioration of our rivers, streams, wetlands and watershed areas for too long. We are all concerned about siltation, highway runoff, choking of rivers because of too-small bridges, increased nitrogen levels, anoxic events, contaminated shorelines and fish kills.

We need to commend those who play an active role in trying to identify solutions, support stream enhancement and committing their time and energy to active watershed groups. The array of scientists, conservationists, environmentalists, activists - both paid and unpaid - provide us with the information we need to ensure appropriate legislation is developed and enforced."

After that  however I beg to differ. Here's the rest of what Mr. Key wrote:

"Unfortunately, there are those among us who, while sincerely concerned, often add to the problem merely because we do not have the knowledge, information or evidence necessary to make the correct choices. A recent article by a member of the Environmental Coalition of P.E.I. [ECO-PEI] illustrates this reality. It repeats the same incorrect information promoted by an equally uninformed representative of the P.E.I. Department of the Environment, and then repeatedly parroted by the media.

The article in issue claims that the highly publicized 2011 fish kill at the Trout River watershed was as a result of "pesticide runoff". In other words - "blame the farmer and his farming practices". The facts are that no chemical of any kind was found in any fish recovered. There was no evidence presented that indicated any pesticide, or pesticide residue was found at the site. The article also claims that "one was found guilty and fined $3,000". This is also false. This farmer chose to "plead" guilty rather than incur the costs of presenting a defence, and suffering the wrath of the self-righteous. Pleading guilty is a choice; being "found" guilty depends upon evidence that is available and presented. Again - it is important to be aware that there was no evidence of pesticide found in any fish.

The most offensive part of the article, however, is the reference to the second farmer - who chose not to be railroaded by public pressure based upon erroneous information. The article claims that "his lawyer was able to use to his advantage a loophole in P.E.I.'s buffer zone legislation." This statement is patently false. The second farmer bore the costs of having to provide a defence. There was no evidence of any pesticide in the fish. Furthermore, the evidence did show that the farmer had a buffer zone of 33 metres at the nearest point to the stream. The legislation requires a buffer zone of 15 metres from a stream. There is no loophole, there is no nefarious manipulation of the law. In truth - there was no evidence that any law had been broken.

To claim that this is a "loophole" would be akin to saying that a man driving 40 km/h in a 60 km/h zone was found not guilty of speeding because of a loophole. Perhaps convenient - but untrue.

It rained. Fish were killed. That is a travesty. But it does not mean that they were killed by pesticides, nor does it mean that we should create a lynch mob to hang the nearest farmer. Solutions to the issues need to be found; but they need to be found based upon evidence - not because we identify an easy target.

Derek Key is a lawyer practising in Summerside"
.

Let's look at a few of these statements:
 The facts are that no chemical of any kind was found in any fish recovered. This is true, but it doesn't mean that pesticides didn't kill the fish.  For many reasons having to do with timeliness, fish biology, current testing procedures, researchers have always had difficulty finding pesticide residues in dead fish, even when there's been overwhelming evidence that there was a spill or run-off of pesticide. Environment and fisheries officials would obviously  be on firmer footing when it comes to laying charges if this weren't the case, but it is. Occasionally it's found in the livers.  So the fact that "no chemical of any kind was found in any fish recovered" doesn't prove or disprove that the fish were killed from pesticides.  So on that point Mr. Key is correct.

Let's move on:
 There was no evidence presented that indicated any pesticide, or pesticide residue was found at the site.
This statement is false. First of all there was  pesticide residue found in water samples, and secondly look at how Mr. Key has used the term "no evidence presented."  The court case heard in Summerside was over provincial buffer zone violations, not pesticide use, so there would have been no reason to present "evidence" of pesticide run-off. It doesn't mean it wasn't there.


Furthermore, the evidence did show that the farmer had a buffer zone of 33 metres at the nearest point to the stream. The legislation requires a buffer zone of 15 metres from a stream.  This isn't telling the whole story.  The regulations say that row crops grown within 200 metres of a water course must end at a grass headland OR "a buffer zone". The wording around the grassed headland certainly indicates the intent of the regulation: a 10 metre grassed area, established the year before the cropping year, that's in addition to the regular 15 metre buffer zone, so 25 metres all together. . But yes the regulation adds the "or a buffer zone" and that's what lead to the case being dismissed. It's hard to believe that the "or" will survive this latest  revision of the regulations.

and finally:   It rained. Fish were killed. That is a travesty. But it does not mean that they were killed by pesticides, nor does it mean that we should create a lynch mob to hang the nearest farmer.



I too have been concerned about the growing lack of understanding, and certainly respect, accorded farmers here on PEI, it's one of the reasons I started writing this blog. I've taken a lot of heat for arguing that in the Fall when late blight is rampant, that it's somewhat understandable if farmers spray when they shouldn't to protect their crops, so I'm not a pesticide purist. But I don't think slandering provincial biologists and the media is the best way to change the public's perception of farmers, or its confidence in  provincial environment officials. I do believe in better management of fields near waterways to keep pesticides where they're needed: on crops, and out of waterways where they can do so much damage. (it says so right on pesticide labels, including organic pesticides). I want people to think of all the watersheds where farmers are making an honest effort, and fish haven't been dying. I know this begs the question what's going on around the Trout River that hundreds of fish have now been found dead two seasons in a row.   

Finally Derek Key knows good defense lawyers must offer up another suspect, an alternative theory to the crime, and he hasn't done this. He's offered good evidence that getting a conviction in court is difficult for environment and justice officials, but not that there's some other plausible explanation for what happened.  I'm afraid that Mr. Key's letter will give comfort to those few farmers who think buffer zones, and environmental regulations  are for sissies, and strip away the confidence of the public that farmers can be held accountable when necessary. That will do nothing but increase cynicism and fear towards PEI's farming community.