We Stayed Strong, Shawnigan

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.

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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.

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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.

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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.

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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.

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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.

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Court Battles

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.

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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.

 

 

 

 

 

 

 

 

 

 

Where are we at?

There has been a lot of discussion of the ruling that came down on April 15th from Justice Kirkpatrick, and it seems to have created confusion.  Did we win?  Did we lose?
 
The ruling allows SIRM to complete the contracts that were in place as of March 21, 2016. According to the documents submitted to the court, the volume of soil in those contracts is 106,000 tonnes. The company intends to resume hauling soil, and they have been actively working at the site and returning equipment.
Contracts allowed under the stay
 
How, exactly, could that be construed as a win?
 
Yes – it is only a partial stay of the injunction – but a stay that allows them to essentially double the volume of contaminated soil at the site.
 
Yes, the injunctions from Justice MacKenzie remain in place after the contracts from the stay have been fulfilled – but the company has permission from Justice Kirkpatrick to import soil until the contracts are complete or until the appeal is heard in August. That means four more months of truckloads of contaminated soil being dumped in our watershed.
 
For all of us in Shawnigan, every truckload of soil brought to that site is the opposite of a victory.
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As I said many times after the MacKenzie decision, we have many more victories that we will need before this fight is over.
 
We await the Sewell decision on the Judicial Review.
 
We await action from the provincial government, which has ignored our community for four years.
 
We await the appeal hearing of the zoning decision in August.
 
The truth is that we are plunged back into uncertainty as a community, and that we face the grim reality of trucks continuing to haul – for now – contaminated soil to Stebbings Rd.
 
And we we continue to work hard, as a community. The teams we formed in December have continued to work together. We continue to support each other and take care of each other. We continue to act with kindness, generosity, and compassion towards each other.
 
And these are the most important things that we can do. We have won respect and admiration as a community for the ways in which we have chosen to pull together and care for each other throughout this horrible ordeal, and we’ve created a strong, loving community. A trusting community. Let us not allow that trust or compassion to be eroded.
 
We are all weary from this fight, but our greatest strength is each other – let’s remember to value what we’ve created in Shawnigan, and fiercely protect it.
 
We have known from the beginning that this will be a long fight, and it will be a hard fight. We are going down all avenues available to us, because we value our water so much that we do not intend to let the outcome hinge on a single court decision.
 
I intend to never give up with my efforts to protect our watershed, and throughout this entire ordeal, I have drawn my strength, my courage, and my determination from this community.

Not the news we were hoping for, but we will stay strong, Shawnigan

BC Appeal Court Justice Kirkpatrick has given a stay to two injunctions put in place with Justice Mackenzie’s March 21st ruling.

Her decision can be read here: Kirpatrick Decision to allow more dumping – Apr 15 2015

This is not what we had hoped for, but let us not forget that this is only a limited setback – the judge ruled the company can only proceed with contracts already in place, and not seek any further contracts.

This afternoon, I gave a speech at the opening of Shawnigan Lake School’s Model United Nations.  Here is an excerpt:

And so three years ago – when the Ministry of Environment issued its draft permit to South Island Aggregates, the question became, how do we think locally, and act locally?

We’ve done a lot of thinking, and we’ve also done a whole lot of acting.

We’ve written letters.

We’ve gathered vast amounts of information.

We’ve attended rallies.

We’ve generated hundreds of media stories.

We’ve attended protests.

And we’ve done things that I consider to be revolutionary, including:

We’ve gotten to know each other.

 We’ve decided to care not just about the water, but about each other, and about our whole community.

We’ve rooted our efforts in kindness, compassion, and love.

We’ve stood in front of trucks together.

We’ve sat in courtrooms together.

We’ve organized and attended fundraisers together.

We have imagined the celebration we will have – together – when this was all over.

In standing up against a company, against the government, and against a great injustice, we found ourselves standing together, and cultivating tolerance, compassion, and dignity while we affirmed our own human rights – and in particular, our right as a community to have safe drinking water.  All of those lofty goals from the UN charter – being worked hard for in our little community of Shawnigan.

Don’t forget, on a hard day like today, all that we have already accomplished.  And remember that our compassion and kindness for each other is essential.  Let’s support each other through this backwards step, and remember never to give up hope – indeed, we must insist on feeling hopeful, as that is what is required of us if we are to maintain the strength and determination that we need at this time.

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The Beloved Community

It’s late at night on Easter Monday. It has been remarkable these last few days to see white blossoms on the plum trees, fat pink buds on the grape vines, and to bring in bright yellow daffodils from the garden. Life is bursting forth everywhere, which of course makes it the ideal time to reflect on the themes of renewal and rebirth.

Consider this: in the long, hard saga that our community has been through, three times pivotal moments have occurred right around Easter.

The week before Easter 2013: Ministry of Environment released SIA/CHH’s draft permit.

Two weeks before Easter 2015: Environmental Appeal Board (EAB) released its decision to uphold SIA/CHH’s permit.

The week before Easter 2016: BC Supreme Court ruled that CHH’s landfill is not a permitted use on the Stebbings Rd property.

(Not to read too much into the Easter theme, isn’t it interesting that on the third year, the Shawnigan community has experienced its own rebirth and renewal?)

For so many of us in Shawnigan, this last year has been one of the hardest years of our lives. Last spring, with the decision of the EAB to uphold SIA/CHH’s permit to dump 100,000 tonnes of contaminated soil each year for 50 years in our watershed, felt like a kind of death for our community.

Hopes, visions, and dreams, which had been steadily building in Shawnigan, were set aside as the community galvanized itself around a single, unwavering goal: to have the permit overturned and to have our watershed protected from the risk posed by 5 million tonnes of contaminated soil left in it for perpetuity.

Three avenues of effort were embarked on simultaneously.

Firstly, the CVRD moved forward with its zoning bylaw case, which was filed in BC Supreme Court shortly after SIA/CHH announced that it was “open for business and accepting contaminated soil” – as this meant that the company was indeed in contravention of the CVRD’s zoning bylaw.

Secondly, the legal team representing the Shawnigan Residents Association moved forward with filing an application for a Judicial Review of the EAB decision. The application filed in May presented evidence to support the SRA’s argument that the EAB decision was “substantively unreasonable.” Bolstering SRA’s argument was the document that emerged in July 2015 that appears to show a 50-50 profit sharing agreement between SIA/CHH and their qualified professionals, Active Earth Engineering.

Thirdly, and in my opinion, most importantly, the people of Shawnigan came together and galvanized into a highly determined, effective, committed, capable, and passionate community. Have no doubt – the tireless work of the Shawnigan community has been incredibly valuable on so many levels. The people of Shawnigan have demonstrated what needs to be done in the face of a failure of democracy, a failure of process, a failure of a government agency to look effectively at science, facts, and authentic concerns. The people of Shawnigan have demonstrated the importance of active engagement in standing up for a future that we want to create, rather than accepting a future forced on our community by one company.

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And the people of Shawnigan have shown that some issues transcend all political boundaries. Shawnigan has invited and worked with an incredible number of allies. In a province that has its share of political divides, consider this: people of all political stripes have joined and supported Shawnigan’s efforts.

During the 2013 provincial election campaign, the four Cowichan candidates – Steve Housser, Kerry Davis, Bill Routley, and Damir Wallener all agreed on one thing: that Shawnigan’s watershed is no place for a contaminated soil landfill. Over the past year, NDP MLA Bill Routley has stood shoulder to shoulder with Green Party MLA Andrew Weaver, and been joined by MLAs Doug Routley, Gary Holman and NDP leader John Horgan on Stebbings Rd, all standing in solidarity with the people of Shawnigan Lake.

horgan at protest

Bill Routley has given 25 (!) speeches in the Legislature on Shawnigan’s fight to protect our water; and both John Horgan and Andrew Weaver have asked several questions during Question Period over the last year, and repeatedly raised the issue in the media.

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Federal Green Party leader Elizabeth May, and both past and current MPs, Jean Crowder and Alistair MacGregor, have stood as allies with the people of Shawnigan Lake. During the federal election campaign, Green candidates Fran Hunt-Jinnouchi and Paul Manley, Liberal candidate Maria Manna, and NDP candidate Alistair all showed support and stood in solidarity with the Shawnigan community.  Alistair has recently taken his support right to the House of Commons, where he has introduced a private member’s bill that would protect Shawnigan Lake.

 

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(Elected officials and candidates in this photo include: Doug Routley, Elizabeth May, Fran Hunt-Jinnouchi, Paul Manley, Steve Housser, Sonia Furstenau, Kerry Davis, & Gary Holman – and there may be more that I can’t spot!)

These political allies all agreed on one thing – that the protection of a community’s water source is essential, and far more important than politics. The Shawnigan effort to protect our water has not only transcended political lines and political boundaries, it has also been an example for how we can move beyond political divisions and recognize that we can indeed all work together for the greater good.

I am deeply grateful to all who have stood with us, and I hope that we will soon be coming back together for a momentous celebration.

There are so many who deserve to be acknowledged and appreciated for the efforts they have contributed.

Those who raised the alarm at the very beginning – who saw the danger coming and wanted to stop it in its tracks. SRA President Calvin Cook and the SRA Board members – who stepped up early as leaders and have led the community ever since. Former Area Director Bruce Fraser and the previous CVRD Board, which initiated the Supreme Court challenge and the EAB appeal. The incredibly hard-working lawyers, particularly Alyssa Bradley (CVRD) and Sean Hern (SRA) who have shown exceptional passion and commitment in their efforts. Cowichan Tribes First Nation, which has supported Shawnigan from the beginning, and Malahat First Nation, which came forward to support SRA’s application for a stay.  The administration, staff, and students of Shawnigan Lake School and Dwight School – both have been steadfast in their solidarity with the community.

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All the people who wrote letters and showed up to protests even before the permit was issued. The people who organized events, rallies, endless meetings, and fundraisers – and all the people who attended the events, rallies, endless meetings, and fundraisers. The small group of people – led by Shelagh – who monitored the increasing truck traffic through the summer and fall. The people who got up early through the dark, cold, wet weeks in November and December to stand on Stebbings Rd. The hundreds who attended protests, the thousands who signed petitions, and the many dozens who raised their hands to be on a “team”. The dozens who worked together night and day to bring together Helicopter Day on January 6th. The hundreds who have tirelessly raised the profile of our efforts on social media (including two amazing and prominent Canadians, Raffi and David Suzuki!).

Also deserving of recognition are the researchers, the photographers, the hikers, the video-makers, the song writers, the artists, and the people who knew just when to offer a warm drink, a nourishing snack, a kind word, or a loving embrace. There are countless heroes and heroines, and what has been remarkable is that each and every person has been willing to give themselves to something greater, and in doing so, has contributed to creating something miraculous.

It has been a long hard journey – and one that is not over yet. An important victory has been won, but the permit has not yet been revoked and the soil that has been deposited has not been ordered removed. We will be on this journey together until these outcomes have been achieved.

The company has also filed for an appeal of this decision, and for a stay of the injunction that prevents them from bringing contaminated soil onto the site. We hope and pray that the courts will not see fit to allow continued dumping, and we also await Justice Sewell’s decision on a second injunction, based on the evidence heard during the Judicial Review.

I expect that many feel – as I do – weary from having to fight so hard to try to protect our water, but nonetheless determined to stay the course, no matter what.

I also feel that it’s valuable to take some time to reflect, and to consider all that we have learned and accomplished on this four-year journey.

We have learned vigilance, determination, steadfastness, and cooperation – particularly when it comes to protecting the water that we need for our community to thrive.

We have learned how catastrophically a “process” can fail. One person – a “statutory decision maker” with no ties to our community, who never visited the site applying for the permit, who did not adhere to the guidelines of his position, and who may not have even had the authority to make the decision he did – was able nonetheless to make a decision that has impacted the lives of thousands of people. And the Minister of Environment has chosen to hide behind this person for three long years – often dismissing the serious uncertainties, concerns, and evidence of irregularities that have been steadily accumulating the entire time.

We have learned of the pitfalls embedded in the “Professional Reliance” model, introduced by the BC Liberal government as a result of now Minister of Energy and Mines Bill Bennett’s “core review”. It was this model that allowed for SIA hiring Active Earth Engineering to act as the “qualified professionals” throughout the permitting process.

We have learned how to come together, how to become highly organized, how to work together over and over again, how to never give up, no matter how tired, how exasperated, or how bullied we feel. We have supported each other, cared for each other, helped each other through difficult times, and continuously expressed the love we feel for our lake, our home, our community, and each other.

Recently, I read an interview with a long-time environmental activist Rebecca Stolnit, and her words resonated deeply:

“There’s this idea that political engagement is some sort of horrible, dutiful thing you do, like cleaning the toilet or taking out the garbage. But it can be the most fantastic thing you do. It can bring you into contact with hope, with joy, with a sense of deep connection, with what Martin Luther King called the “beloved community.” “

We have created a “beloved community” in Shawnigan.  It has made us strong, and as we continue to move through this journey, we must continue to nourish it, and to defend it from those who may want to damage it.  We must make it the one true legacy of this terrible situation that we have been forced to endure.

Let us remember, above all, to cherish and protect our beloved community.

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Where are we at?

It has been an incredibly busy number of months for residents of Shawnigan Lake.

On Monday, February 29th, the Judicial Review of the Environmental Appeal Board’s decision to uphold SIA/CHH’s permit wrapped up.  After a total of 21 days of hearings, Justice Sewell assured the parties that he would deliver his decision on a stay as soon as possible, while reserving judgment on the decision to quash the permit.

We continue to wait for a decision from Justice Mackenzie on the CVRD land use case, which finished in early December.

In the meantime, the community shows no indication of relenting in its efforts to protect the water, and the future, of Shawnigan Lake.

The W5 episode on this story, “Trouble in Paradise”, will air this Saturday, March 5th.  A preview is available on their website: http://www.ctvnews.ca/w5/

On Monday, March 7th, Calvin Cook will join me at my Area Director’s meeting at Shawnigan Lake Community Centre at 7 pm.  Please come out for an update on what’s been happening, and an opportunity to have your questions answered.

Stay strong, Shawnigan. After Saturday night, all of Canada will know the story of our community’s long struggle to protect our watershed.

save our lake

 

Lot 21 gets a new owner

Congratulations, Province of BC.  You’ve recently acquired a brand new piece of property in the Shawnigan Lake area – the infamous Lot 21.

I’m not sure you’d consider this a dream property, though.

From the upper portion, you do get a nice view of Shawnigan Lake.  But that’s pretty much all it’s got going for it.

Lot 21, 460 Stebbings Road, Shawnigan Lake, BC.  Dec. 6, 2015.

Lot 21, 460 Stebbings Road, Shawnigan Lake, BC. Dec. 6, 2015.

It’s right next door to a newly permitted contaminated landfill, which is allowed to import soils laden with dioxins, furans, hydrocarbons, phenols, toluene, benzene – not the kinds of things you would want showing up in your soil or water. (By the way, BC – you did issue the permit for this landfill, against the wishes of, well, pretty much everybody, but especially everybody who lives in Shawnigan Lake. Any sober second thoughts?)

Fly Ash with workers Dec 15-5

There are also some issues about what’s been dumped on your new property – and what’s leaching off of it.  In fact, the Shawnigan community has been pretty concerned for quite a while about some particularly colourful and viscous runoff that oozes from the bottom of your brand new property right into Shawnigan Creek.  You’ve probably seen some photos.

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Of course, orange runoff can be caused by naturally occurring bacteria interacting with iron, but this sludge has been tested several times, and there some worrisome results.

Andrew Weaver, for example, found iron, but also of thorium, niobium, lead, lithium, scandium, tin, magnesium, chromium, cobalt, and more at levels that were between 3 and 18 times higher than upstream.  Andrew’s data and his analysis (which have always been public) are easy to find – just click here.

And recent sampling results show cobalt above Contaminated Sites Regulation levels. Oh dear – looks like you may have inherited a bit of a mess.

And how did it come to be that you – Beautiful BC – are the new owner of Lot 21?  Well, it appears that the previous owner, 0782484 BC Ltd, didn’t keep up with their tax payments, and so it was forfeited to Her Majesty the Queen in Right of the Province of BC.

Lot 21

And who is this mysterious 0742484 BC Ltd?  Well it has two Directors.  One named Martin Block, and the other Micheal James Kelly.

By the way, Beautiful BC – just to refresh your memory – these are the exact same two fellas to whom your very own Ministry of Environment issued Waste Discharge Permit 105809 for the adjacent Lot 23.

Funny how things work out, isn’t it?

You give them a permit for a 5-million tonne contaminated landfill facility, and they give you…a piece of land that may very well be contaminated.

(I bet you’re wishing that your records review that you did on this property last summer had been a bit more thorough – remember how they gave you records with the names of other companies on them? And how those records didn’t really tell you what was dumped, where the soil came from, or where it went? See What will it take for more on that.)

As you settle into your new property and get to know some of the challenges, I’d recommend you have a chat with your neighbours on Lot 23.  There’s an operating company there now, taking care of the contaminated landfill business.

They claim that they have nothing to do with Lot 21, and that the property is completely dormant. However, there’s been some recent activity you may want to be aware of.

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Well, that’s all for now, Province of BC.

Welcome to the neighbourhood, and rest assured we have lots of friendly locals who will be keeping a close eye on your brand new property for you.

What will it take?

What will it take for Mary Polak and Christy Clark to take real action on the serious concerns being raised by the citizens of Shawnigan Lake?

Why is the government downplaying the impacts that South Island Aggregates/Cobble Hill Holdings (SIA/CHH) contaminated landfill is already having on our environment?

And if the provincial government won’t act, due to their pro-industry at all costs ideological stance, then what will it take for the federal government, in particular the ministries of Fisheries and Environment, to step in and respond?

Are we in BC at the mercy of regulatory agencies that are not doing their jobs because of a political mandate from above?  Is the Shawnigan Lake watershed at risk because the BC government has gone too far with deregulation under its “Professional Reliance Model”?

A report outlined in a January 28th Globe and Mail article indicates that this is what has been happening at the federal level. ‘Environment Canada Officers Failed to Uphold the Law: Report’:

globe and mail - failure of EC

In Shawnigan Lake, we have experienced a blatant lack of regard for concerns that have been documented and submitted to the Ministry of Environment (MoE) and Ministry of Energy and Mines (MEM).  It seems that these agencies have even ignored their own data and evidence in order to ensure the uninterrupted operations of a contaminated soil landfill at the headwaters of our watershed.  Ministry staff rely on the company’s own reports and monitoring, creating a “fox guarding the hen house scenario” – another weakness of Environment Canada that was identified in the recent report:

EC and corps

Given the many concerns that have been raised over several years about the impacts the SIA/CHH site is having on the environment, and the tendency towards non-enforcement on the part of both MoE and MEM, residents are growing increasingly uneasy with the government’s inaction.

Below are a few of the most grievous examples.

Groundwater

From the beginning, the prospect of having a contaminated soil landfill in our watershed has raised concerns about the potential impacts to our groundwater.  The Lowen Hydro-geology report from 2013 identifies that there is groundwater at the site:

Lowen - groundwater

In June 2015, Ministry of Environment (MoE) released a report on compliance and monitoring at the SIA/CHH site. (MoE Report: Cobble Hill Holdings Compliance and Monitoring June 2015)

Included in the report are results of groundwater samples collected by MoE in April 2015, which were compared to the results from the “Qualified Professionals”, Active Earth.  (The relationship between Active Earth and SIA/CHH has received enormous scrutiny since a document that appears to show a 50-50 profit-sharing agreement was delivered to the Shawnigan Residents Association: See Vancouver Sun Story.)

These results, and the Ministry’s response to them, are disturbing.

MoE vs CHH results

At Monitoring Well 1S, Ministry tests show nine metals exceeding drinking water guidelines, and at Monitoring Well 2, three metals exceeding guidelines.  Indeed, Ministry data strongly suggest groundwater down-slope of the SIA/CHH site is contaminated with lead, arsenic and uranium at levels more than double the BC Contaminated Sites Regulation standard for drinking water.

At the same time Active Earth, the company’s “Qualified Professionals” failed to produce recent monitoring results from these wells, despite this being a requirement of the permit, and the year-old results they did produce are nearly universally different from the Ministry results.

MOE states in their report that:  “there was little consistency in how the MOE lab results deviated from the CHH results. Concentrations were considerably higher for some parameters and much lower for other parameters.”

But this is not actually the case. In the case of Monitoring Well S1, CHH results are higher than MoE for only dissolved arsenic (1.1 times higher) and nitrite (2.27 times higher). For all other results, the MOE values are on average 34 times higher than CHH values.

What are we to infer from the fact that MoE staff are stating conclusions that are not supported by the data they are presenting in the report?  Why does it seem that MoE staff are determined to make it appear that there aren’t problems – either with the data or the discrepancies?

In their report on Professional Reliance, the UViC Environmental Law Centre identified many problems with this “hands-off” approach to industry that has been adopted by the Chrisy Clark government.  Are we in Shawnigan the victims of this ideological model?

professional deference

(See also this February 4th Vancouver Sun Article by Stephen Hume.)

Surface Water

Concerns about surface water have also been long-standing.

MoE consistently adheres to its messaging that water leaving the site has to meet BC Drinking Water and Aquatic Life Guidelines.

What they consistently will not address, however, is the evidence that water leaving the site is accumulating contaminates.

Andrew Weaver’s recent water samples of the stream that exits the western edge of the SIA/CHH site onto the neighbouring CVRD park show that sodium levels are seven times higher than in the water in Shawnigan Creek above the site.  Weaver also found sulphur levels in the stream at 33 mg/L, while sulphur undetectable above the site.  (More Samples, More Questions.)

MoE’s testing of surface water from the site in November 2015 found Sulphur at 23.2 mg/L from the settling pond discharge (Nov 23 MoE report) and 56.1 mg/L 15 m west of the discharge point (Nov 17 MoE report).

Here are the questions MoE and Mary Polak will not answer:

  • Where is the sulphur and sodium coming from?
  • Could they be coming the soil that’s been shipped in from Pacific Coast Terminals, which is high in sulphur and sodium?
  • If so, how are metals that are in that soil, which is supposed to be “contact soil” (ie. all water that comes into contact with it is treated in the water treatment system), showing up in the water leaving the site that makes its way to Shawnigan Creek and Shawnigan Lake?
  • What are the cumulative impacts of these and other contaminates that are being introduced to the freshwater environment?
  • Why does MoE insist that unless there is an immediate health risk, they won’t take action, which ignores the question of long-term cumulative impacts?

The implications of this approach is that the company will be allowed to dump until finally the levels of contaminates in the surface water exceed drinking water guidelines.  But by then, isn’t it too late? How will MoE approach the task of removing those contaminates from our watershed?

Fly Ash

For weeks on end, citizens of Shawnigan documented in photos and videos fly ash being blasted into the contaminated soil at the SIA/CHH site – with much of the material floating away and off into the “non-contact” areas of the quarry (ie. the water from these areas is not treated), then beyond into the nearby trees and water in billowing clouds of dust.

The fly ash is being used to stabilize the very wet soil that’s been brought from Pacific Coast Terminals in Port Moody.

fly ash 1

Fly ash is a residue of coal combustion.  A search on its properties reveals that fly ash is not something any community would want blowing around its watershed.

coal ash

An email to MEM from a concerned Shawnigan citizen resulted in this response:

fly ash response from MEM

The end result?  Fly ash still billowing, but now the workers are wearing protective masks.  What about the protection of the Shawnigan watershed and drinking water, where the toxins from this material accumulate?

fly ash 3

We have been raising our concerns about the fly ash with MoE since December, with no result.  Here is the last response received from the Ministry’s “Compliance Officer”, received January 5th:

fly ash - caunce response

While section 2.10 the MoE permit requires that “fugitive dust created within the operation area be suppressed”, beyond the requirement that workers wear masks, we have seen no action taken on this issue.

Records

In the spring of 2015, MoE did a “Historical Records Review” of SIA’s dumping activities on Lot 21, the northern piece of SIA’s Stebbings Rd property.

Lot 23 & Lot 21

Concerns about the soil that’s been dumped on this site are long-standing, with reports of dumping of industrial waste, tires, and contaminated fill having been made to MEM since 2008.  Testing of the water that is leaching off the bottom of Lot 21 and directly into Shawnigan Creek has been done by local residents and by Andrew Weaver.  Weaver’s results and analyses, which can be found on his website – water samples & sediment samples – raise concerns about a number of contaminates in the run-off, including iron, lead, thorium, and chromium.

MoE intended to review SIA’s records to determine if contaminated soil had been improperly dumped at the site between 2008 and 2013.

There was a problem, however.  The records given to MoE via MEM could not conclusively be linked to SIA’s operations.

Records review 2

Essentially, MoE did an investigation into the historical records of the SIA, but admits that the records they investigated “cannot be directly linked to the company and Lot 21.”

And even the records they did review “did not contain adequate information” to determine the origin, deposition location, or quality of the soils dumped at Lot 21, “assuming Lot 21 is actually the deposition site.”

What kind of government agency allows this to happen? If I were ordered by CRA to submit financial records for an audit, but instead produced my neighbour’s records, would the CRA be fine with this?

And the conclusions MoE draws from its review of SIA’s records?

Records review 3

Does this mean that MoE will demand that SIA/CHH produce accurate records?  Does it mean that MoE will further investigate the soils that have been dumped on the property?

Nope.

Here’s the final statement on  MoE’s Information Sheet on SIA/CHH Historical Record Review:

Records review next steps

Where does this leave us?

Minister of Environment Mary Polak has said on more than one occasion in the Legislature that MoE staff ensure that public health and the environment is kept safe, and that they do so “independent of political interference.”

Yet to the residents of Shawnigan Lake, it seems possible that there is political influence or pressure.  Just as the report from Environment Canada indicates that staff aligned their actions to the Harper government’s priorities, could it be that MoE staff are aligning their actions to the “priorities” of Christy Clark’s government?

In 2013, Clark’s mandate letter to Environment Minister Mary Polak puts an emphasis not on protection of the environment, but “acceptable impact and mitigation strategies when faced with project approval decisions.”

mandate letter to polak 2013

Is what is happening in Shawnigan a “mitigation strategy”?

Flint Michigan and Shawnigan Lake BC

In Flint,  it’s becoming clear that authorities in Michigan dismissed growing concerns of the residents about the taste and appearance of their drinking water, and the growing incidences of rashes,  illness and weakness.

What’s more disturbing is the question raised in a recent New Yorker article:

Flint question New Yorker

In their downplaying of concerns abut Flint’s water, Michigan authorities and Governor Snyder stated that the issues were “aesthetic” – and therefore not relevant to drinking water guidelines.  (This can be seen in this CNN article: Five striking emails on the Flint water crisis.)

This same dismissal of residents’ concerns – that the issues are aesthetic – was also used by Mary Polak to downplay MoE’s test results that showed metals that exceeding drinking water guidelines.

“Adaptive Management”

From the outset, the Ministry of Environment has said that they would require strict adherence to the permit conditions at this site. But this message seems to have changed in November 2015.

In its response to the non-compliance events on November 13, when a stream of water was discovered flowing off the SIA/CHH site and onto the neighbouring CVRD park, MoE issued a variety of letters and information sheets.

In the Information Sheet on Cobble Hill Holdings / South Island Aggregates Summary of Water Requirements, MoE states the following:

adaptive management

Is the “adaptive management model” MoE’s mitigation strategy for the SIA/CHH site? Is this the best this government agency can do when it comes to protecting drinking water for 12,000 people?

We demand better of this government.

The health of an entire community is not an acceptable risk, and an adaptive management model is not an acceptable approach to protecting drinking water.

It is time for the Minister of Environment to put aside her political priorities and do her sworn duty.  It is time for Minister Polak to take immediate action to stop the harm that is being done in the Shawnigan watershed.