The equipment DFO seized was a Hitachi EX120 excavator. Screenshot,

The equipment DFO seized was a Hitachi EX120 excavator. Screenshot,

Judge orders DFO to return excavator to Comox Valley landowner

Equipment was seized over fish habitat at the Trent River south of Courtenay

A large excavator that was the subject of a custody battle between a Comox Valley landowner and the federal government is being returned.

Fisheries and Oceans Canada (DFO) had seized the Hitachi EX120 Excavator from Robert Tingley in 2020, citing damage to fish habitat at Tingley’s property. The site includes a stretch of the Trent River, south of Courtenay. The excavator was taken as the result of an Aug. 6 search warrant a fisheries officer executed on the grounds that Tingley was “causing harmful alteration, disruption and destruction to fish habitat.”

Tingley, who represented himself in court, responded in his submissions that DFO had changed the flow of the river, with flood levels now higher, which in his view were harmful to the fish habitat.

Last summer, the order was for the machine to be held for three months, which expired on Nov. 6, 2020. After that time, the Crown applied for an extension for the detention through the end of June 2021. A hearing slated for Nov. 17 had to be postponed because a power outage. The issue was eventually heard in provincial court in Courtenay on Dec. 31, with Judge Barbara Flewelling delivering a decision on Feb. 11.

READ MORE: New way to report possible fishing violations to DFO

The main questions the judge settled in the hearing were whether the excavator is required for the investigation or a preliminary inquiry, trial or other proceeding, and whether further detention of the machine is in the interests of justice.

“I have concluded that Crown has not established that the continued detention of the excavator is in the interests of justice,” Flewelling wrote in her decision.

She noted the importance of fisheries’ investigations because they are based on protecting a valuable resource but that this must be balanced with rights of the lawful owners of seized property.

“Mr. Tingley … uses the excavator extensively for repairs, fixing things and other works on his land. He also rents it out to others and has or will incur a potential loss of revenues if it is not returned,” Flewelling said.

The written decision outlines the lead-up to the seizure. In May, the fisheries officer had written to Tingley calling for him to remediate the site. The landowner responded that he would not comply at which point the fisheries officer warned him the excavator would be seized if work continued. In the decision, the judge also noted that Tingley, in his submissions, said the disagreement with DFO had gone back further, dating back to 2005.

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