An aerial view of the South Island Aggregates site where tonnes of contaminated soil is dumped everyday near a sensitive watershed, in the distance is Shawnigan Lake, B.C., January 6, 2016.CHAD HIPOLITO/The Globe and Mail
Trucks filled with contaminated soil have been ordered to stop rolling to a site near Shawnigan Lake after a B.C. Supreme Court judge found the disposal operation was not a "permitted use" under regional bylaws.
The decision, released Monday, was one of two court cases under way related to the facility, which has been controversial since its owners received a permit in 2013 to accept up to 100,000 tonnes a year of contaminated soil at a site about five kilometres away – and uphill from – Shawnigan Lake.
A ruling in the second case, in which opponents are seeking to have the provincial permit for the facility overturned, is pending. But Monday's court ruling, which hinged on Cowichan Valley Regional District bylaws, was seen as a turning point in the long, heated public debate over the plan to dump truckloads of waste soil uphill from a drinking water supply.
"There have been concerns about this [proposal] all the way through," B.C. Green Party Leader Andrew Weaver said on Monday. "The concerns essentially boil down to the province trying to get to yes, and doing anything it can to get there – despite continuous information brought to them that this was not a good idea."
NDP Leader John Horgan said the ruling vindicates community concerns.
Cowichan Valley v. Cobble Hill Holdings
"Hopefully this Supreme Court decision will put a halt to this nonsense, and the [Christy] Clark government will assure residents that this sort of thing won't happen again," Mr. Horgan said in a statement.
B.C.'s Ministry of Environment said its staff would need to review the decision before providing further comment.
In the ruling, B.C. Supreme Court Justice Brian Mackenzie wrote that current operations on the site have created a landfill and that such a use is not permitted under Cowichan Valley Regional District zoning.
The owner and operator of the site argued they were not operating a landfill but only reclaiming land under a 2006 mining permit for an existing rock quarry nearby. Justice Mackenzie disagreed, referring to a previous court decision that found regional district regulations did not allow a soil treatment facility as a "permitted use."
In that earlier case, the judge "had no trouble concluding that to include this type of activity as a permitted use would be 'stretching the language significantly'" Justice Mackenzie noted in his ruling.
"Given the evidence in the present case and the unambiguous provisions of the bylaw, I agree with that conclusion."
The controversy has focused largely on the potential for contaminants to make their way into Shawnigan Lake, which provides drinking water to thousands of people in the watershed.
The province in 2013 approved a permit to the site's owner to receive and store up to 100,000 tonnes of soil a year at the site. The Shawnigan Residents Association and the Cowichan Valley Regional District tried to have the permit overturned, but the Environmental Appeal Board upheld it last year.
Monday's decision includes an injunction against contaminated soil being shipped to the site.
South Island Resource Management – which operates the contaminated-soil disposal facility – issued a statement that said it would comply with the court order. The owner of the property, Cobble Hill Holdings, is believed to considering an appeal, South Island Resource Management said in the same statement.
"It is important to understand this decision deals with only one aspect of our operation," SIRM said. "We continue to operate the mine and manage the material already on site."
The Shawnigan Residents Association has also sought a judicial review of the Environmental Appeal Board's decision. A ruling in that case in pending.
While waiting for that court ruling, residents are relieved that the trucks filled with contaminated soil will stop rolling onto the property, Shawnigan Residents Association spokesman Calvin Cook said.
"That's exactly what we were after – our contention from the beginning was that the statutory decision-maker had made the wrong decision … yet they still decided to proceed, so we feel vindicated in that," Mr. Cook said.
Wendy Stueck