Contaminated soil case: judge says back to Environmental Appeal Board


The contaminated soil business in Shawnigan Lake is on hold after BC Supreme Court Justice Robert Sewell released his long-awaited decision today, containing harsh comments about “misleading” testimony.

His decision referred the case back to the Environmental Appeal Board for reconsideration and reissued a stay of the Cobble Hill Holdings permit to receive 100,000 tonnes of contaminated soil annually at its Stebbings Road site.

Local residents and politicians consider the ruling a victory, if only a partial one. “This isn’t over until the soil is gone and the permit is gone,” said Sonia Furstenau, CVRD Shawnigan director and Green Party candidate, who asked for the environment minister to step up. MP Alistair MacGregor said in a statement, “The stay of permit is a good sign, but until the permit is revoked and Shawnigan Lake becomes fully protected in law, the battle against contamination of the watershed remains.” (see previous stories)

The controversial permit was granted in 2013, and the site tied up in legal battles ever since. Sewell’s ruling comes almost a year after he presided over a judicial review of the original Environmental Appeal Board hearings. Meanwhile, the CVRD has asked the Supreme Court of Canada to hear its case on whether the regional district has jurisdiction over mining activities.

In a statement on behalf of CHH and South Island Aggregates, company lawyer John Alexander said that a new engineering study has not raised any concern about environmental impact or risk. “This means the permit is working. Independent monitoring results show the water coming off the site is generally cleaner than what is found around it. CHH said from the outset of the judicial review hearing that if the community wanted the matter sent back to the EAB to consider its new concerns, they did not object. CHH looks forward to the opportunity to demonstrate the environment remains protected.”

In his decision, Sewell didn’t accept the argument that the EAB was biased, even though expert witnesses had called the technical report deeply flawed.

It wasn’t until after the EAB decision in 2015 that new evidence came to light. The Shawnigan Residents Association received – from an anonymous whistleblower – a copy of a profit-sharing agreement between supposedly independent engineering firm Active Earth and CHH.

Over a decade ago, the province chose to rely on reports by private-sector “qualified professionals” instead of government employees to oversee environmental assessments. In this case, the ministry and the EAB relied on Active Earth’s technical report.

Sewell disagreed and argued “the board was misled” on the fact that “its principals were active participants in the business venture.”

Here are some comments from the decision:

CHH’s lack of candour in these proceedings reinforces 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.

I am satisfied that the relationship between Active Earth and the project was material and ought to have been disclosed.

An important element in assessing any technical or scientific opinion is knowing whether the professional producing the opinion has any reason to be biased. The existence of a financial benefit to the Qualified Professional from a particular outcome is a clear example of a reasonable apprehension of bias in the person preparing the opinion.

I find that the engineering information prepared by Active Earth, including the TAR and the additional information provided to the Ministry, did form an important, if not decisive, part of the evidence on which the Board based its ultimate decision. The Board stated that Active Earth designed the facility. In addition, a review of the decision persuades me that the Board also accepted the overall design of the facility, which was produced by Active Earth.

I am satisfied that the Board ought to have been made aware that the design of the facility and the TAR presented to the Delegate was prepared by engineers who were not independent and who stood to profit from the continued operation of the Facility. That is a circumstance that goes to the heart of the integrity of the approval process under the EMA (Environmental Management Act).





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