Dumping can continue, appeal court rules

The trucking of contaminated soil to Shawnigan Lake has been given the green light to continue, at least until later this summer.

The trucking of contaminated soil to Shawnigan Lake has been given the green light to continue, at least until later this summer.

The BC Court of Appeal made that determination on May 13 when it tossed out an appeal by the Cowichan Valley Regional District, which was asking for work to stop at the controversial contaminated soil dump.

The court, presided over by a three-judge panel, also turned down the regional district’s request that if soil continued to be imported to the site, the owners should be required to post a security of $12 million to cover the costs of removing it.

The court’s decision means that the importation of soil to the site can continue until the court hears an appeal in August from South Island Aggregates and Cobble Hill Holdings, the owners of the landfill.

The owners are appealing a ruling made by the BC Supreme Court in March that a contaminated soil treatment facility and landfill are not permitted uses of the property, located on Stebbings Road.

The supreme court ordered at the time that no further soil could be imported to the site until the company’s appeal of that decision is heard in August.

But that ruling was set aside last month by the BC Court of Appeal’s Justice Pamela Kirpatrick, who decided to allow the importation of soil to continue until the appeal is heard.

That decision led to the appeal by the CVRD that was turned down on May 13.

Jon Lefebure, chairman of the CVRD, said the loss of the appeal is “unfortunate.”

He said the regional district was hoping for some assurance that if more soil was allowed to be imported to the site until August, there would eventually be funds available to remove it.

“But the BC Supreme Court has ruled that this operation does not fit the CVRD’s bylaws, and that ruling still stands,” Lefebure said.

“The appeal to that ruling will be heard in August and, while I’m not a lawyer, I expect that our next focus will be ensuring that the ruling will be upheld.”

Aurora Faulkner-Killam is a lawyer from the Victoria-based law firm Cox, Taylor that is representing the landfill’s owners.

She said the panel of judges recognized that Justice Kirkpatrick’s decision was not in error and balanced the “serious financial hardship” imposed on the owners by the immediate interruption of their business, with the CVRD’s desire to enforce its zoning bylaws.

“Kirkpatrick also expressly recognized in her decision the public interest and public need for a south Shawnigan solution to the problem of illegal dumping of contaminated soil, and accepted that the Ministry of Environment and the Environmental Appeal Board view this mine as part of the solution,” Faulkner-Killam said in a statement.