On the morning of January 24th, many of us gathered in the village – as we have so many times over the last year – to await yet another court decision.
The last three times we gathered have been devastating, as the BC Court of Appeal undid the BC Supreme Court decision that ruled the Cobble Hill Holdings (CHH) site was not permitted under the CVRD’s zoning bylaws. In April and May, the Court of Appeal allowed the company to continue importing contaminated soil, despite the injunction that had been put in place by Justice Mackenzie. And in November, the Court of Appeal overturned Mackenzie’s decision, delivering yet another blow to our community.
We were understandably nervous Tuesday morning – anxious that we would be facing another disappointment, that we would be having to rally ourselves for yet another round in a fight that has seemed so monumentally unfair.
And so, when the decision arrived and it was a positive one – setting aside the Environmental Appeal Board’s decision and reinstating the stay on the permit – we were elated. It had been ten months since our last victory, and we finally had something to celebrate. The victory was made so much sweeter by the judge’s emphasis on how CHH and Marty Block had misled the Ministry of Environment and the Environmental Appeal Board about the relationship between CHH and Active Earth – confirming what we have been saying for years.
Then, three days later, a second victory. At 5 pm on Friday afternoon, the Minister of Environment released a letter stating that “permit 105809 … is suspended effective immediately” and she stated that CHH must provide the following within 15 days:
- An updated cost estimate for closure that is prepared and signed by a qualified professional and is fully consistent with the attached Landfill Criteria for Municipal Solid Waste
- Security, in the form of an irrevocable letter of credit, consistent with the requirements of section 8.6 of the 2016 Criteria
- A draft non-contact and contact water management review report (or reports) that corrects all the deficiencies identified in the attached Ministry Review dated January 19, 2017
And while we’re not finished yet – the permit still needs to be revoked and the soil needs to be removed – we have made two very giant strides towards the end of this nightmare.
We all can celebrate these victories – which have been hard won – and at the same time step back and consider the incredible list of injustices that we have borne as a community.
A Community Ignored
From the very beginning, the Shawnigan community has been abundantly and consistently clear: we did not accept the risk that this landfill posed to our watershed.
Right back to 2012, the community has been standing up and saying no.
The Shawnigan Residents Association hired independent scientists to assess the proposal, the site, and the engineering – and their opinions were clear: this was an unsuitable location and the landfill would pose a threat to our water quality. (See reports here and here.)
The community began its efforts to engage with the provincial government right from the outset – hundreds voiced their concerns at the Public Meeting in July 2012, and hundreds more wrote letters once the draft permit was issued.
Citizens John and Lois Hayes and Rick Saunders filed their own appeals of the permit, along with the CVRD and the Shawnigan Residents Association (SRA). The Environmental Appeal Board hearings took 31 days over five months – and many of us attended or watched online, learning about the serous concerns of the independent experts. We were also shocked by what we perceived as blatant unfairness during the hearings – particularly when the panel refused to allow evidence or to hear witnesses brought forward by the SRA.
Justice Sewell has confirmed that the EAB was indeed unfair in his ruling.
On the last day of the EAB hearings, on a rather cold morning in July, a small group of us gathered on the street out front trying to raise awareness of what was at stake.
We waited eight months for the EAB to make its decision, and when it came (on a Friday afternoon) it was a devastating blow to our community. But we didn’t give up – we geared up. Nearly 300 people came to a community meeting on March 24th, 2015, and we decided that we would work together as a community for as long as it took.
CHEK News Report, March 24th 2015: Minister won’t intervene in soil dump dispute – this was the first of several large community meetings we’ve held since the EAB decision.
After the EAB decision, 15,000 signatures were collected, hundreds more letters were written, and rallies and protests began.
In June, 2015, Elizabeth May joined the Shawnigan community at the contaminated soil facility. Protesters Blockade Contaminated Soil Site
The opposition to the permits was overwhelming and the support was non-existent, but that in no way swayed the provincial government. All our pleas, our evidence, our research, and our efforts were dismissed, and over and over again Minister Polak talked about her “technical expert staff” and the “independent qualified professionals” who were assuring her that everything was fine.
The attitude prevailed among other ministers too. I approached Minister Terry Lake, who signed the original permit, at a conference in Kamloops in early 2015 and shared my concerns with him. “You people,” he said to me with contempt. “You people don’t understand that the process will protect you.”
A Broken Process
But the process didn’t protect us – it endangered us. The process was weighted against us, against independent scientific evidence, and against common sense. The process seemed to have a pre-determined outcome (otherwise known as “getting to yes”) and it seemed that the pre-determined outcome controlled the process.
Consider what was lacking from the process – which included the Environmental Appeal Board hearings.
Landfill siting study? Nope.
Independent environmental assessment? Nope.
Equal weighting of scientific evidence that conflicted with that of the engineers hired by the company? Nope.
Consideration of the previous actions of the proponents, including non-compliance with their Mines permit? Nope.
Consideration of the experience of the proponents or their engineers with designing, engineering, and managing a contaminated landfill site? Nope.
Consideration of the opposition of the CVRD, VIHA, Cowichan Tribes, the Shawnigan community, the CRD, and the City of Victoria? Nope.
And worst of all, when it was revealed over 18 months ago that Active Earth, the engineers who assessed the site and designed the landfill were in a 50-50 profit-sharing deal with CHH, the Ministry of Environment did nothing, and allowed soil to continue to be imported to the site.
Their excuse? “The matter is before the courts.” The result of their inaction is a giant pile of contaminated soil in our watershed that is already leaching heavy metals into the environment.
The CVRD and the SRA filed applications in the BC Supreme Court. Both won their cases. The CVRD’s win was overturned by the BC Court of Appeal; the CVRD Board decided to appeal its case to the Supreme Court of Canada. It will be at least a few months before we will know if the SCC will hear the case.
The ruling delivered on January 24th by Justice Sewell, which set aside the Environmental Appeal Board’s decision and reinstated the stay on the site (thus preventing any contaminated soil being brought it) was a scathing indictment of the CHH owners. Justice Sewell pointed out again and again that Marty Block and CHH “misled” the Ministry of Environment and the Environmental Appeal Board (EAB) about the relationship between CHH and Active Earth.
Justice Sewell also ruled that the EAB “appears to have applied different standards” for the SRA than it did for MoE staff, and that it “did not act fairly in the manner in which it received opinion evidence.” He raised serious concerns about the Ministry of Environment’s process, and went to far as to say that this case “strikes at the heart of the integrity” of Ministry of Environment’s approval process.
These court challenges have been enormously costly. The CVRD case is payed for by residents of the Cowichan Valley (we did receive $10,000 from Union of BC Municipalities, and we have applied for additional funding from them). The SRA, under the leadership of Calvin Cook, has been doggedly fundraising for years to cover its legal fees, and the lawyers who fought the case – Sean Hern and Robert Anderson – have been significant contributors themselves.
The travesty is that these cases should never have been necessary. The BC Liberal government should have respected the CVRD’s zoning bylaw, and not allowed the landfill based on the fact that it was not a permitted activity according to our zoning.
And the Ministry of Environment should have heeded the warnings of independent scientists who provided convincing evidence that the location was wholly unsuitable for a contaminated landfill. What those experts said would happen – that contaminants would leach out of the site and enter our environment – has been happening for the last several months. (See Mary, the problem is getting worse.)
Had the government acted to protect our water and our community, we would not have had to spend nearly $2 million fighting them. This is a nearly unfathomable injustice, and I strongly urge the government to consider how they will remedy this, and compensate the people of Shawnigan.
Standing Up, Standing Together, Standing Strong
But there has been a silver lining. We have come to be a deeply connected, caring, and united community, and we have learned how to work together. And for this I am truly grateful.
We have been steadfast for years, our determination never wavering – even in some of the toughest moments. And we have helped each other through these incredibly challenging years by being kind, caring, and compassionate. And we never gave up hope that we would succeed – because we knew all along that we were on the side of truth.
Thank you to all who have helped in all aspects this effort. So much has gone into it over the last four and a half years: the fundraisers, the petition with 15,000 signatures, the early morning protests, the endless meetings, the daily monitoring of the site, the tweets, the posts, helicopter day, the support of the local schools, the photos, the drone shots, the demonstrations, the rallies at the legislature, the support from our MLAs and MPs, the letters, the articles, the endless research, the song-writing, the video-making, the coffee and cookie deliveries, and them many, many hugs when we really needed them. Most of all the commitment to work together as a community – we have shown what can be accomplished when we decide to stand together. It has been an epic effort by the Shawnigan community, and we should all be proud of what we’ve accomplished together.
I’ve never doubted for a moment that we would win this fight. And now, we’re nearly there.
Stay strong, Shawnigan.