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.

 

 

 

 

 

 

 

 

 

 

How did we get here?

How did we get to this place, this time, in which the people of Shawnigan Lake hear the sound of rain and feel dread?

How is it that grandparents and students, mothers and fathers, feel that trucks 2they have no choice but to stand in front of 40-tonne trucks on a lonely road half way up a mountain?   Community Story

How has it happened that the Ministry of Environment, a government agency that has a duty to protect the citizens of BC, seems to have acted against us for nearly four years?

How is it that the interests of one company have over and over again trumped the health and well being of an entire community?

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The Story of Shawnigan vs South Island Aggregates/Cobble Hill Holdings

In July 2012, South Island Aggregates (SIA) owners Mike Kelly and Marty Block, along with engineers Matt Pye, Jeff Taylor, and David Mitchell from Active Earth Engineering, came to Shawnigan with their plan to turn their rock quarry into a contaminated soil landfill. The quarry is located half way up a mountain at the south end of Shawnigan Lake over the headwaters of our watershed.

The community said no.

Records of a public meeting show that out of over 350 people who attended, only two voiced support for the proposal: the quarry owner’s daughter Nikki Block and Michael Harry, the Chief of the Malahat First Nation. Minutes from July 2012 Public Meeting

(Michael Harry resigned in August as a result of allegations of payoffs from SIA, detailed in court documents: Times-Colonist article.)

But the Ministry of Environment (MoE) moved forward, allowed the company to apply, and issued a draft permit in March 2013.

Again the community said no.

Three hundred letters were submitted to Hubert Bunce, MoE’s Statutory Decision Maker.  Not a single letter was in support.

Again MoE moved forward, and in August 2013 they issued  Waste Discharge Permit 1050809 to SIA.  (The permit is now in held by Cobble Hill Holdings – CHH – also owned by Mike Kelly and Marty Block .)

The permit allows the company to bring in 100,000 tonnes of contaminated soil each year for the next fifty years and dump it into the Shawnigan Lake community drinking watershed.

Here’s a partial list of the toxins allowed by the permit:

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Legal Actions

Again the community said no.

The CVRD and the Shawnigan Residents Association (SRA) filed appeals of the permit to the Environmental Appeals Board (EAB).  Letters of opposition from the Cowichan Tribes First Nation, the local MLA and MP, Vancouver Island Health Authority, and the Capital Regional District were all submitted.

Over 31 days between March and July 2014, the EAB heard testimony from ten expert witnesses, including geologists, hydrogeologists, engineers, and a water treatment specialist.  All experts raised concerns about the suitability of the site and about the engineering and design of the landfill. Some of the expert opinions can be found here.

Active Earth, the engineering firm that assessed the site and designed the landfill, and who were wrong about there being “75 metres of impermeable rock” underneath the site, did not testify.  Their Technical Assessment Report, with the many errors identified during the hearings, is available here.

On March 20th, 2015, the EAB released its decision to uphold the permit, deferring over and over again to the information provided by Active Earth, despite the engineers not having been subject to cross examination during the hearings, and despite the many inaccuracies in their reports that were identified during the hearings.  EAB Decision and Final Permit

Letters and Rallies

Again the community said no.

Hundreds of letters were written to Mary Polak, Minister of Environment, and to Premier Christy Clark, asking them to revoke the permit.  Within five weeks, a petition with over 15,000 names had been generated.  A rally at the Legislature was held on May 13th with over 1600 people in attendance.  Cowichan Valley MLA Bill Routley presented the petition in the Legislature, but the Minister of Environment walked out rather than stay and accept it.  Rally coverage in Times-Colonist  and on  Global TV.

On the same day, SIA/CHH announced they were “open for business” and ready to accept contaminated soils.  Chek News Report

More Legal Actions

The community continued to say no.

The CVRD moved forward with its petition to the BC Supreme Court to have its zoning bylaws upheld.  The land on which the landfill is located is not zoned for a landfill facility or contaminated soil facility.  The case was heard in November 2015, and we await a ruling. CVRD Action

The Shawnigan Residents Association (SRA) also moved forward with their application to BC Supreme Court for a Judicial Review of the EAB decision.  This case will be heard in January 2016.  SRA Legal Archive

Allegations of Conflict of Interest, Perjury, Fraud, Bribery

In July 2015, a document that outlined a business partnership between SIA/CHH and their engineers, Active Earth Engineering, was anonymously delivered to the Shawnigan Residents Association.  It is a signed contract in which the two parties agree to a 50-50 split of profits from the contaminated landfill.  See July 8 2015 Affidavit #2 of Calvin Cook

The community thought that surely, given that the company and its engineers had concealed this partnership throughout the application process for the permit, and denied its existence under oath during the EAB hearings, the Ministry of Environment would have sufficient grounds to at least suspend the permit until the courts had heard the case.  But the Ministry took no action, continued to allow dumping at the site, and sent the message out to all of BC that they are comfortable with permit applicants misrepresenting themselves throughout an entire permitting process.   Vancouver Sun Story

Breaches, Water Testing, More Conflicting Science

Eight months into operations of their 50-year permit, during the first heavy rainfall of the year, a new stream of water was found leaving the site.  The breach was reported to MoE not by the company, as required by their permit, but by local residents who discovered it.

VIHA issued a do not use water advisory for South Shawnigan Lake that lasted for five days.

MoE came back with water sampling results, which found elevated levels of Aluminum, Iron, and Manganese – and told the community not to worry – it will just taste bad and stain our clothing.  But we do worry.

What happened to the promise that “all water leaving this site will meet strictest drinking water and aquatic life guidelines” – the mantra of the Minster of Environment from the beginning?  Chek News story

We worry because at every turn, what we are told will protect us does not in fact protect us.

The impermeable rock does not exist – it’s fractured bedrock, so water seeps into the ground.

The engineering is faulty, so water bypasses the “water management and treatment system”.  (See the engineering report commissioned by the CVRD.)

Evidence of non-compliance is documented and compiled daily by community, yet MoE allows the dumping to continue.  Even when the Ministry acknowledges serious issues with the water management systems, they don’t take action.  Letter to CHH from MoE

Instead of what has been promised to us by the company and the government from the start – that water leaving the site would meet the strictest water quality guidelines – we have, eight months into this 50 year permit, water leaving this site that nobody would want to drink.  And that water flows downhill to Shawnigan Creek, which flows downhill to Shawnigan Lake, which then flows through Mill Bay and into the Saanich Inlet.

Citizens Protest

So where does this leave us?

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Members of the Shawnigan community have spent weeks on the road in front of the SIA site, trying to stop the dumping in what seems to be the only way that’s left to them – by blocking trucks.

They also spend their days walking along the fence that marks the boundary between SIA and the CVRD park next door.

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Ongoing non-compliance has been documented and submitted to MoE and MEM – with little or no response.

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Mary Polak has the authority under the Environmental Management Act to suspend or revoke this permit. But she chooses to allow the dumping to continue, day after day, in our community drinking watershed.

Despite the allegations of misrepresentation, fraud, perjury, bribery.

Despite numerous instances of serious and ongoing non-compliance with the conditions of the permit.

Despite water samples that suggest that everything is not okay.  (Mary, We Have a Problem and Make it Stop).

Despite the vehement and steadfast opposition of our community, and an ever growing number beyond.  (When Will it be Enough?)

And each time it rains, the Shawnigan Lake community feels dread – dread about what kinds of toxins are coming off the contaminated soils that have already been dumped in our watershed.