B.C. Court of Appeal finds in favour of Shawningan contaminated soil site owners

The B.C. Court of Appeal ruled on Nov. 3 in favour of the owners of the contaminated soil operation at Shawnigan Lake

The B.C. Court of Appeal ruled on Nov. 3 in favour of the owners of the contaminated soil operation at Shawnigan Lake in the case brought against them by the Cowichan Valley Regional District.

The court found that the operation at the site is outside of the jurisdiction of the CVRD to regulate under its zoning authority, and the province has exclusive jurisdiction to regulate the operation of the quarry and its site reclamation.

The court determined that reclamation of a site is an integral part of quarrying, and exclusively under the jurisdiction of the province’s Mine Act, which means it’s outside the scope of municipal zoning power over land.

The decision overturned the B.C. Supreme Court’s ruling in March that concluded a contaminated soil treatment facility and landfill are not permitted uses of the property, located on Stebbings Road, under CVRD zoning.

The facility is owned by South Island Aggregates and Cobble Hill Holdings, and operated by South Island Resource Management.

Aurora Faulkner-Killam, a lawyer from the Victoria-based law firm Cox, Taylor that is representing the landfill’s owners, said they are “happy with the careful and clear reasons that provide an accurate statement of the law in respect to provincial jurisdiction over mines.”

“As an interesting aside, the CVRD by its Official Community Plan and bylaws have, since 2005 and before, indicated support for industrial and mining uses of the land in question,” she said.

“The CVRD’s efforts to control the quality of soil being deposited in the mine as part of reclamation appear to my clients to have arisen from the issue becoming politically unpopular. This mine has received awards for safety and is continually recognized as being among the best run in the province. [The owners] are happy that the court’s reasons will permit them to continue to operate responsibly and well.”

Sonia Furstenau, the CVRD’s director for Shawnigan Lake and long-time opponent of the operation, said she was “deeply disappointed and saddened” by the court ruling.

“For four and a half years, our community has been abundantly clear that we do not accept the risk of a contaminated landfill in our watershed,” she said.

“It is disheartening that the Court of Appeal has denied the CVRD’s ability to determine land use in our region.”

Jon Lefebure, chairman of the CVRD, said he was also disappointed with the ruling, and felt the CVRD had a good case in arguing it had jurisdictional authority over the site.

“The ruling was just made so we’ll have to analyze closely to determine what options the CVRD could take in response,” he said.

“The earliest the board can discuss this is at its meeting next week, but if there are legal considerations, that discussion could have to be held in camera.”

Calvin Cook, president of the Shawnigan Residents Association, said his group is still “firmly committed” to see all the contaminated soil that has been brought to the site removed.

He said the SRA is still waiting to hear the ruling in its own court case against the soil facility.

The SRA was the main instigator of a judicial review of the operation that was heard over 11 days by the B.C. Supreme Court in February.

The Residents Association is challenging the decision by the Ministry of Environment to give the project its permit to operate after documents came to light last July that revealed a complex potential deal between the companies that were working to establish the facility.

The SRA alleges the documents throw doubt on information used by the ministry in its decision to grant the permit.

“We feel we presented a strong case and [B.C. Supreme Court Justice Robert] Sewell has said he will soon release the ruling from the judicial review,” Cook said.

“If Sewell rules in our favour, then the permit to operate will no longer be valid.”

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