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.

 

 

 

 

 

 

 

 

 

 

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.

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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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