The ongoing court cases, litigation and public concerns around the contaminated soil operation at Shawnigan Lake are expected to continue well into the new year.
The year 2016 ended with a defeat for those who are opposed to the controversial landfill project after a decision in November by the B.C. Court of Appeal that ruled in favour of the owners of the operation.
The court found that the operation at the site is outside of the jurisdiction of the Cowichan Valley Regional District to regulate under its zoning authority, and the province has exclusive jurisdiction to regulate the operation of the quarry and its site reclamation.
The court determined that reclamation of a site is an integral part of quarrying, and exclusively under the jurisdiction of the province’s Mine Act, which means it’s outside the scope of municipal zoning power over land.
That decision overturned the B.C. Supreme Court’s ruling in March, 2016, that concluded a contaminated soil treatment facility and landfill are not permitted uses of the property, located on Stebbings Road, under the zoning of the CVRD.
The facility is owned by South Island Aggregates and Cobble Hill Holdings, and operated by South Island Resource Management.
The Ministry of Environment issued the owners a permit in 2013 to receive and store up to 100,000 tonnes of contaminated soil a year at their quarry.
The CVRD is analyzing the court’s November decision and has indicated it will decide how to respond in the new year.
Aurora Faulkner-Killam, a lawyer from the Victoria-based law firm Cox, Taylor that represents the landfill’s owners, said after the court ruling that the CVRD’s bylaws and Official Community Plan supports industrial and mining uses of the land in question, and the board only turned against the project after it became “politically unpopular”.
“This mine has received awards for safety and is continually recognized as being among the best run in the province,” she said at the time.
Meanwhile, the Shawnigan Residents Association is still waiting to hear the ruling in its own legal action against the soil facility.
The SRA was the main instigator of a judicial review of the operation that was heard over 11 days by the B.C. Supreme Court in February.
The Residents Association is challenging the decision by the Ministry of Environment to give the project its permit to operate after documents came to light in July, 2015, that revealed a complex potential deal between the companies that were working to establish the facility.
The SRA alleges the documents throw doubt on information used by the ministry in its decision to grant the permit.
The association is hoping that if the courts rule in its favour, the permit to operate the facility will no longer be valid.
While the legal challenges to the operation continue their way through the court system, concerns had also been raised during the year about specific issues that could lead to harm to the environment.
The Ministry of the Environment issued a pollution-prevention order in October to the landfill’s operators and owners after 6,000 gallons of contaminated water leaked into the environment from the project.
The ministry ordered the facility to complete a number of upgrades at the site.
They included that the landfill must be completely covered with a weighted, impermeable cover; the operators maintain and, if necessary, dig lined trenches to catch all contact water; and they must install backup systems to store water on site, or transport it to another authorized facility.
The emotionally charged issue of the project is expected to remain centre stage for many residents of Shawnigan Lake and their supporters well into 2107.
Sonia Furstenau, the CVRD’s director for Shawnigan Lake and long-time opponent of the operation has thrown her hat into the ring as the Green candidate for the Cowichan Valley in May’s provincial election.
She said when she announced her candidacy in September that the Liberal government has “completely rejected” its responsibilities to citizens in regards to water protection in the province, particularly in the issue of the contaminated soil facility.
“No community in B.C. should be forced to fight its own government in order to protect its water, and I am motivated to do all that I can to prevent others from having to endure the nightmare we’ve been through,” Furstenau said at the time.
It should be an interesting year.
