Legal exchange between B.C. government and Testalinden Dam owner
Just months after the Testalinden Dam collapsed, its owner denied responsibility for the structure and blasted the B.C. government for failing to warn him about its dangerous condition.
Now, more than three years later, B.C.’s information and privacy commissioner has also scolded the government for keeping a lid on safety concerns at the site.
Testalinden Dam was built in the 1930s and breached during the spring freshet in June 2010. It unleashed a wave of mud and debris that damaged properties five kilometres downstream and covered Highway 97 just south of Oliver.
In the aftermath, the B.C. government spent $9 million on cleanup costs and payouts to property owners that it’s now trying to recoup from the former dam owner through the courts, said Brennan Clarke, a spokesman for the Ministry of Forests, Lands and Natural Resource Operations.
But ownership of the dam is in dispute, according to documents obtained by the Western News through freedom of information legislation.
In August 2010, the Ministry of Environment sent a letter to then-owner Ace Elkink, president of Elkink Ranch Ltd., to notify him about the incident and order the dam be made safe.
Elkink’s lawyer, Rick Williams, fired off a response a month later in which he claimed that contrary to findings contained in a government review of the dam failure, Elkink did not become the licence holder until 1987.
That’s when Elkink was issued a conditional licence that authorized construction of other works in and around Testalinden Creek, wrote Williams.
Construction never happened, though, and Elkink never made beneficial use of the water, the lawyer continued, so no final licence was issued before the conditional permit expired in 1989.
Williams also said that inspection reports dating back to the 1960s detailed safety concerns related to the dam, yet the province failed to tell Elkink about the need for repairs.
“Had Elkink Ranch been advised of any of these issues relating to the dam, which the province had a legal duty to disclose, it would never have applied for or accepted the licence, which to date has been of no benefit,” he wrote.
“It is unconscionable that the province is now attempting to transfer responsibility for this unfortunate event on our client who has paid less than $100 a year for a licence it has never used.”
Elkink nonetheless agreed “under protest” to decommission the dam, and in April 2013 the B.C. government declared his licence abandoned retroactive to September 2010.
How that affects the ongoing legal action against Elkink is unclear.
“From a legal perspective, I don’t know,” Steve Thomson, the minister of forests, lands and natural resource operations, said in an interview this week.
B.C.’s court registry database doesn’t contain any records related to a lawsuit involving Elkink and the ministry, and Thomson would not reveal to which stage legal proceedings have progressed
“I understand there are ongoing legal discussions,” he said.
Elkink did not return a call for comment and Williams declined the opportunity.
But the lawyer’s earlier assertions about the government’s failure to warn people about the dam were validated this month by B.C. information and privacy commissioner Elizabeth Denham.
Denham investigated six complaints that public bodies failed in their lawful duty to alert the public about risks of significant harm to the environment or peoples’ health or safety.
After studying the Testalinden incident, the commissioner concluded in her final report the B.C. government knew for decades the dam was in a “compromised state” and should have told people downstream.
“The information about the risk of failure of the dam was information that the public did not know and that would have likely resulted in the local citizenry, at the very least, pressuring government to take remedial action,” wrote Denham.
Minister Thomson said the report “will assist us in continuing improvement,” however, “We don’t necessarily fully agree with the commissioner’s interpretation of all the facts and the conclusion.”