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Aca Not Aerating Lakes This Winter


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You may have heard the rumours and now it's confirmed - Muir, Spring, Beaver, Ironside, Fiesta, Spring,Swan, Millers, all of them will not be aerated by ACA this winter. It's a sad day for stillwater trout anglers and probably means a premature death sentence for thousands of rainbow and brown trout across the province. Cancelled too I suspect will be Fisheries plans to stock tiger trout in any of the lakes previously aerated i.e. Muir, Beaver, Ironside, Kerbe's.

 

This from Todd Zimmerling, President and CEO of the Alberta Conservation Association:

 

Up until very recently we have been operating our surface aeration systems under the assumption that if we did our due diligence and undertook “reasonable” precautions to warn the public of the hazards associated with the open water that we create in the ice, that we would have a substantial defense should an incident occur. However, we have now been provided with two different legal opinions that indicate that under Sec 263 of the criminal code, regardless of the precautions, warnings or barriers implement, if someone falls into the hole and dies we are guilty of manslaughter. This section of the criminal code does not provide for a due diligence defense. So as you can imagine this has created significant issues for our aeration program. At the moment we have decided that we will not be running the surface aeration program this year (unless we can find a way around the associated criminal liability); however, we are looking at a couple other options for subsurface aeration that does not create a hole in the ice. The techniques we are looking at are much more expensive than the surface aeration, and have not been tried in our lake systems before (to the best of our knowledge).

We are working towards having a concrete plan to bring to the Fisheries Round Table meeting on October 17. I believe the plan will include three key points: 1) Attempt to super saturate all locations using surface aeration prior to ice-up. 2) Use subsurface aeration techniques on select lakes during the winter of 2015/16. 3) Stock larger trout in the spring in those lakes that do not get aerated and may suffer winter kill. None of this is confirmed, but this is the direction we are looking.

Once the Federal election is over we will ask our stakeholders to help us is persuading the Federal Government to make changes to section 263 to allow for surface aeration that benefits society as a whole (assuming reasonable efforts are made to inform people of the danger).

Shutting down aeration is not something we wanted to do, in fact we had plans to start expanding the aeration program, but this obscure law has created a significant liability that we can’t ignore. We will figure something out, but there could be a couple years when the fishing in your favorite lake is not as good as it once was. I am hoping this can be minimized.

Peter

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Well that sucks. Makes me wonder why any fall stocking was done then. I know they put quite a few tiny guys into Fiesta a couple weeks ago to help that one bounce back. Those fish will almost certainly die as even with aeration that lake has a high winter mortality rate.

 

Not to mention just how badly this will bugger up the "plan" (and I use the quotations here to indicate a massive amount of sarcasm) for stocking the Tigers.

 

Not that this is the ACA's fault. I dont blame them one bit for covering their butts against manslaughter liability. Just another setback as far as decent man made fisheries go.

 

J

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Duty to safeguard opening in ice

  • [*]

263. (1) Every one who makes or causes to be made an opening in ice that is open to or frequented by the public is under a legal duty to guard it in a manner that is adequate to prevent persons from falling in by accident and is adequate to warn them that the opening exists.

[*] Marginal note:Excavation on land

(2) Every one who leaves an excavation on land that he owns or of which he has charge or supervision is under a legal duty to guard it in a manner that is adequate to prevent persons from falling in by accident and is adequate to warn them that the excavation exists.

[*] Marginal note:Offences

(3) Every one who fails to perform a duty imposed by subsection (1) or (2) is guilty of

  • [*]

(a) manslaughter, if the death of any person results therefrom;

[*]

(b) an offence under section 269, if bodily harm to any person results therefrom; or

[*]

(c) an offence punishable on summary conviction.

  • [*]R.S., c. C-34, s. 242; [*]1980-81-82-83, c. 125, s. 18.

To bad our legal system takes the side of those who don't pay attention to warning/caution signs. We have caution/warning signs all over our roadway systems but I don't see the roadways closed due to the open excavations, etc.

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Afraid not, Dan. No matter what you do to 'guard' the hole if someone is injured or killed because of it then it is not 'adequate'.

Here's a story about the problem:

 

Once upon a time in a land far away a young boy named Todd lived with his mother near a beautiful lake that teemed with speckled trout during the summer. They were very poor and relied on the fish for food together with a few chickens and one cow that lived with them in the small ramshackle hut that was their home. But despite the sparseness of their existence they were happy and content.
Winter came early that year and the lake froze over quicker than usual depriving mother and boy of the food from the lake on which they had come to rely. Then the cow became sick and wolves from the surrounding hills came at night and carried off the family's chickens.
"Come, Todd," said his mother, "let us chip a hole through the ice and you can catch us a fish for our dinner."
"But mother," said Todd, "I am afraid that if we make a hole in the ice then the rich children who play hockey on the ice may fall in and be killed."
"You are a very thoughtful boy," said his mother. "Then we must build a fence around the hole and you can write a sign to warn the children." And so they set to work and by nighttime the hole was made, the wooden fence built and the sign made. "I'll just put some of the red ribbon from your sewing box on the fence too mother, so that everyone can see it."
"You have done a good job. Now, first thing in the morning you must catch us a fish, Todd," said his mother as they lay down to sleep.
That night Travis, a rich boy from the other side of the lake, snuck out of his bedroom to practise his hockey on the lake. He skated around shooting his puck and chasing after it. Then he saw the fence that hadn't been there before and shot the puck at it. But unfortunately for Travis there was a small hole at the bottom of the fence and the puck slid through.
"No," thought Travis, "I can't lose my puck," and so he scrambled over the fence in search of it. He wasn't very good at reading so he ignored the sign that Todd had made. But before he knew it he tripped on a board and fell through the thin layer of ice where the hole had been made.
Travis' body was found by the police early the next day after his parents had reported him missing in the night.
The police went to see Todd and his mother and Todd told them why they had made the hole in the ice and about the fence and the sign. "We did everything we could to make it safe," said Todd.
The policeman was an unkind grump of a man. "The law," he shouted, "is the law. You had a legal duty to guard that hole in a manner that is adequate to prevent persons from falling in by accident and is adequate to warn them that the opening exists. You clearly failed!"
And so Todd and his mother were both taken off to jail to face charges of manslaughter under Section 263 of the Criminal Code.

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Great story Peter . And people outright shoot someone and claim insanity, enough of that .... So , how about we go out and ice fish the lake this winter , drill holes and pull out all the fish we can , before they croak.

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  • 3 weeks later...
Following discussion at the Fisheries Management Roundtable on Saturday, the ACA released this statement today.
"AERATION AND ISSUES ARISING FROM SECTION 263 OF THE CRIMINAL CODE. OCTOBER 20, 2015 PROPOSED ACTIONS
Background:
Alberta Conservation Association (ACA) aerates 16 lakes across Alberta using surface aerators. These surface aeration systems discharge water into the air, like a fountain, and create open water (a polynia) in a lake. In July 2015, ACA became aware of potential liability issues under Section 263 of the Criminal Code associated with making a hole in ice. Section 263 reads:
“Every one who makes or causes to be made an opening in ice that is open to or frequented by the public is under legal duty to guard in a manner that is adequate to prevent persons from falling in by accident and is adequate to warn them that the opening exists.”
In August 2015, ACA received an initial opinion from Dentons Canada LLP regarding the impacts of Section 263 with respect to ACA aeration operations. In part, their opinion read “While it would make sense that a fence could work to prevent liability under s.263, we cannot be certain; it is difficult to say exactly what type of fence ‘would be adequate to prevent persons from falling in by accident’ and ‘adequate to warn them that the opening exists.’ “ The Criminal Code provides that “everyone who fails to perform a duty imposed by Section 263 is guilty of manslaughter, if the death of a person results.”
Based on the issues raised by Dentons Canada LLP, ACA sought a second opinion from McLennan Ross which was received on September 25, 2015. In reviewing case law associated with excavations on land (a subsection of 263) the McLennan Ross opinion notes: “…The Court’s reasoning suggests that the fact of the boys falling in the excavation was in and of itself proof that guarding was in adequate (although the Court says the warning was adequate).” The Court used the same reasoning in a second case referenced by McLennan Ross. In layman’s terms “guarding” has been considered inadequate because someone has fallen in, regardless of what type of guarding has been put in place. As a result a “due diligence” defence is not be possible under this section of the Criminal Code. McLennan Ross goes on to state: “Accordingly, it does not appear that there can be any assurance that any additional mitigative steps, including fencing, would prevent charges from being laid (if someone is hurt or killed – this would go towards a due diligence defence to any charge in the absence of harm). Arguably, should an individual climb the fence, and then accidentally fall in a hole in the ice and be injured or die, the warning and guarding could still be considered inadequate. Although this seems unfair, the reality is that it is the way the provision is currently worded.” And: “Accordingly, from a legal perspective, we do not believe that it is possible to eliminate the risk of criminal charges. Obviously, effective fencing or other steps such as those recommend by the cottage owners associations or followed under the B.C. policy would significantly reduce the practical likelihood of anyone being injured or dying, and may give rise to an argument that the duty to warn and guard never arose in the first place because the opening was not open to the public. However, if the duty is established, there appears to be no legal defence, other than the possible constitutional challenge, in the event that an incident actually happens, assuming the victim fell in ‘accidentally.’”
Based on two legal opinions, ACA has determined that the risk of criminal charges arising from someone being injured or dying in a hole created by aeration is low; however, the consequences of charges being laid is severe (manslaughter in the case of death) and would fall upon ACA’s staff, management and Directors. As such, ACA has decided that for the winter of 2015/16 surface aeration will be suspended while issues related to Section 263 are resolved. It is our intent to ensure our aeration program is running again at full capacity by the winter of 2016/17 at the latest.
Proposal for dealing with Section 263 of the Criminal Code:
The following is ACA’s proposed eight point plan which has been reviewed by the ACA Board of Directors, Alberta Environment and Parks and the Fisheries Round Table.
1) Starting immediately, attempt to super-saturate all lakes prior to ice-on then shut surface aerators off. Historical records show that a portion of the lakes ACA aerates did not winterkill every winter and we believe some lakes can survive successfully (the type of winter we have will play a major role).
2) Aerate eight lakes using bubble diffusers with enclosed polynia. Bubble diffusers are relatively simple to install and operate; however, they will create a hole in the ice. We believe we can contain the polynia within a 40 ft x 40 ft square created by floating dock material and then covered with chain link fencing material. Creating a floating, enclosed square should eliminate any possibility of people from falling in the open hole. A person would have to cut the chain link to access the hole in the ice. Pros: If the polynia becomes too large the aerator can be temporarily shut-down. Aeration can occur during thin ice periods with no risk of people falling in the hole. The floating docks can be reconfigured in the spring and used as casting platforms. Cons: The lakes we are aerating are relatively shallow (
The eight lakes chosen for aeration are: Beaver Lake, Fiesta Lake, Ironside Pond, Muir Lake, Mitchell Lake, Millers Lake, Figure Eight Lake, East Dollar Lake
3) Increase the fish stocking program in the spring of 2016. Work towards having larger fish to stock, to replace the growth that an over wintering fish would be expected to have. Finding larger fish on short notice may be an issue.
4) Immediately inform stakeholders of the aeration plan.
5) Engage a lawyer to draft a proposed amendment to Section 263 that allows for a due diligence defence. Based on initial conversations there is a relatively minor wording change required.
6) Engage stakeholders, Provincial Government and other jurisdictions to help in persuading the Federal Government to amend Section 263 as proposed. We will need stakeholders to contact their local MP’s and ask for their support in making a change to a law that will benefit anglers across the country.
7) Continue to test new aeration techniques to implement for the winter of 2016/17.
8) Ensure the aeration program is fully operational by the winter of 2016/17 (all 16 lakes).
Our lawyers are working on the wording for a proposed amendment to Sec 263. As soon as I have that I will pass it along so that everyone can begin the process of talking to their new MP to try and get this law changed so that we don’t have issues in the future.
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