Shawnigan Lake residents won a major victory Tuesday in their ongoing battle against the dumping of contaminated soil in a quarry upstream from the lake.
In a long-awaited ruling, B.C. Supreme Court Justice Robert Sewell stayed a provincial government permit that allowed Cobble Hill Holdings to receive and store up to 100,000 tonnes of soil a year at its Stebbings Road property.
In a 49-page decision, Sewell referred the case back to the environmental appeal board for reconsideration and said the stay will remain in place until the appeal board decides otherwise.
“We’re relieved,” said Calvin Cook, president of the Shawnigan Residents Association, which launched the court challenge. “[We’re] feeling a little bit vindicated, but certainly we have a lot of work ahead of us.”
He said the association’s legal team was still analyzing the decision.
“But, at first blush, a stay is back in place and that just allows everybody up in Shawnigan to put their head on their pillow knowing that more material isn’t brought on site,” Cook said.
Shawnigan residents have long feared that contaminants could leach from the site and pollute the lake, which supplies drinking water.
The permit to store soil in the quarry was issued by B.C.’s Ministry of Environment in 2013, stayed pending an appeal, and then upheld by the environmental appeal board in 2015.
Sewell, however, found the board’s handling of expert evidence led to an unfair hearing of the case.
He also concluded that the board was misled about the relationship between the quarry’s owners and Active Earth Engineering Ltd., which did the site’s technical assessment.
The justice said there was “overwhelming evidence” that Active Earth had “an ownership interest of some sort” in the soil storage facility — information that came to light only after the appeal board rendered its decision.
“I am of the view that Active Earth acted improperly in acting as qualified professionals and preparing [the technical assessment report] without disclosing that interest,” Sewell wrote.
He also found that Cobble Hill Holdings gave “false and misleading” evidence to the board about the nature of the relationship between Active Earth and Cobble Hill Holdings.
In addition, Sewell said, Cobble Hill Holdings “filed misleading evidence” about the relationship in B.C. Supreme Court.
“[Cobble Hill Holding’s] lack of candour in these proceedings reinforced my view that the interests of justice require that the decision be set aside and the matter remitted to the board for reconsideration in light of the fresh evidence,” Sewell wrote.
The justice said that if the question before him had been whether to set aside the permit, he would have had no difficulty doing so because the technical assessment was done “by persons who were biased in favour of approving the project.”
Sonia Furstenau, area director with the Cowichan Valley Regional District, said Sewell’s strongly worded judgment “puts the ball squarely in the ministry’s court.”
In a statement, Environment Minister Mary Polak said: “The province is concerned around Justice Sewell’s findings with respect to the way evidence was presented to the environmental appeal board.”
She said the ministry “will take time to review the decision to determine how this impacts the province’s role in permitting the facility.”
Cobble Hill Holdings Ltd. said in a statement that another company has been operating the quarry and complying with Ministry of Environment requirements since 2015.
“The ministry required a new engineering study of the quarry by completely independent engineers last year,” the statement said, adding that the study was given to the ministry in December.
“Neither the ministry oversight over the last two years, nor the new engineering raise any current concern about environmental impact or risk,” the statement said. “This means the permit is working.”
The company noted that Sewell’s review of the case began just over a year ago.
“Cobble Hill Holdings said from the outset of the judicial review hearing that if the community wanted the matter sent back to the [environmental appeal board] to consider its new concerns, they did not object,” the statement said.
“It is unfortunate that another year has elapsed, but [the company] looks forward to the opportunity to demonstrate the environment remains protected.”
Victoria lawyer Richard Margetts, who represents Active Earth Engineering, said his client and its engineers were not a party to the legal action and had no opportunity to answer any of the allegations about their relationship with the quarry’s owners.
“Active Earth acted appropriately at all times bearing in mind the professional obligations it owed to its clients and any agency involved in the issuance of a permit to [Cobble Hill Holdings],” Margetts said in a statement.
Timeline
• Oct. 12, 2011 — South Island Aggregates Ltd. submits its initial application to treat and store up to 100,000 tonnes of contaminated soil a year in a rock quarry on Stebbings Road. The quarry site is owned by Cobble Hill Holdings Ltd. and managed by South Island Aggregates.
• May 4, 2012 — South Island Aggregates submits its final permit application.
• May 9, 2012 — A public consultation process begins.
• March 19, 2013 — The Ministry of Environment issues a draft permit for the quarry to Cobble Hill Holdings Ltd./South Island Aggregates.
• Aug. 21, 2013 — The ministry issues a final permit.
• Nov. 15, 2013 — The Environmental Appeals Board grants a stay of the permit pending the board’s final decision on a series of appeals.
• March 3, 2014 — The appeal board hearing begins in Victoria.
• March 20, 2015 — The appeal board releases a 147-page decision that upholds the permit and rescinds the stay on operations.
• May 19, 2015 — Shawnigan Residents Association petitions B.C. Supreme Court for a judicial review of the appeal board decision.
• July 9, 2015 — Shawnigan Residents Association states in court documents that an unknown source has provided a copy of a secret profit-sharing agreement between Cobble Hill and Active Earth Engineering, which did the technical assessment of the site. Cobble Hill says the agreement was signed, but never acted upon.
• Feb. 15, 2016 — Shawnigan Residents Association heads to B.C. Supreme Court in Victoria, seeking to quash the permit.
• Jan. 24, 2017 — B.C. Supreme Court Justice Robert Sewell sets aside the appeal board decision, stays the permit and sends the case back to the appeal board for reconsideration.
