A Canadian Town Claims Companies Committed Fraud to Put a Toxic Dump Site Near Their Water Source

Shawnigan Lake is asking the British Columbia Supreme Court to overturn an environmental permit that allows 100,000 tons of waste a year to be dumped near the town's water supply.

by Julie Chadwick
Jan 21 2016, 9:00pm

A protest at Shawnigan Lake on January 6. Photos courtesy of Louise Gilfoy

A community up in arms over what they fear is the potential contamination of their drinking water supply continues its fight in British Columbia's Supreme Court this week.

At the center of the dispute is a permit, issued in the summer of 2013 by the Ministry of Environment, that allows five million tons of contaminated soil to be dumped into a landfill site uphill from the headwaters of Shawnigan Lake, at a rate of 100,000 tons a year, for 50 years.

A variety of toxins are allowed to be dumped at the Stebbings Road site by the company South Island Aggregates (SIA) including hydrocarbons, dioxins, furans, benzene (a carcinogen that causes leukemia and anemia), toluene (a solvent and neurotoxin particularly dangerous to children), and xylene.

The stream that the company releases its waste discharge water into eventually joins Shawnigan Creek, which in turn empties into Shawnigan Lake—the drinking water source for anywhere from 7,000 to 12,000 people in the local community, depending on the season.

BC NDP Leader John Horgan attended the rally.

The current case before the courts, which began last week, is the latest in a series of legal actions mounted by a community—primarily in the form of the Shawnigan Residents Association (SRA)—who have voiced loud and focused dissent against the project from its beginnings.

As these various appeals and hearings have played out over the last few years, the story has developed a few intriguing twists. At the center of this week's judicial review is a file of documents anonymously delivered on July 7 to Calvin Cook, president of the SRA, which allegedly revealed a profit-sharing contract between SIA—the company dumping the soil—and Active Earth, the engineering firm that submitted the technical assessment report and subsequent scientific advice to the ministry for the permit.

The Shawnigan Residents Association allege that this 50/50 partnership, which was never disclosed to either the Ministry or the Environmental Appeal Board, amounts to fraud.

"Throughout the entire permit application process the so called 'qualified professionals' were actually secret co-applicants in the project," the SRA wrote in their November 5 application for the judicial review. "As a result, the objectivity of their scientific advice to the Ministry as to the suitability of the site for a landfill was fundamentally compromised; they were motivated in every respect to reach conclusions about the site that enhanced their investment in it."

Aurora Faulkner-Killam, a lawyer for SIA's parent company, Cobble Hill Holdings, disputes this, saying via email that "there is a document, but no agreement. It was abandoned and not implemented, and it has absolutely no bearing on the MOE permit, or the environmental protections that have been confirmed over and over since the permit was issued."

Protesters using snowmen to 'block' dump trucks

However financial spreadsheets and internal emails obtained and submitted by the SRA for the current judicial review paint a different picture, and suggest a partnership between the companies that is referred to well into 2015.

On this point in particular, the ministry said they are aware of the allegations by the SRA of fraudulent behavior during the permitting and subsequent appeal board process, but "at this time the permit, amended in accordance with the Environmental Appeal Board's decision, remains valid. We cannot comment further as the matter is before the courts," said the ministry, in an emailed statement.

Other controversies have plagued the project from its inception. In August, Michael Harry, chief of the Malahat Nation, resigned over allegations that he received a per-ton consulting fee from the dump operators, which is also referenced within documents submitted by the SRA in the current judicial review. As yet, no charges have been laid and the allegations have not been proven in court.

On November 13, due to a "suspected non-containment of surface water" from the dump site, the Vancouver Island Health Authority issued a do-not-use water advisory to the community and warned against drawing water from the south end of Shawnigan Lake for bathing, personal hygiene, drinking, or food preparation.

In February of 2014, the Ministry permitted the company to dump 37,000 tons of contaminated soil on the site, primarily dredged from the waterfront in Victoria, which contained a variety of carcinogenic materials, including arsenic, cadmium, lead, and chromium.

A bird's eye view of the protest. Photo courtesy of Paul Manly/Manly Media

At the time, a hearing regarding the site had been scheduled for the following month and a stay had been issued to prevent soil from being dumped prior to the hearing, said Sonia Furstenau, elected representative for the Cowichan Valley Regional District.

However the ministry then granted the company a variance on the stay, which allowed the dumping to go ahead.

"What we then learned during the [subsequent] appeal board hearings was that their water treatment system actually wasn't properly functioning at that time, although they said that it was," Furstenau told VICE. "We found out after the fact."

The original decision to grant the permit was made by the ministry's statutory decision maker, a technical expert who is independent of any political process, said British Columbia's Environment Minister Mary Polak in an emailed statement to VICE. "As minister, I must respect the independence of Ministry technical experts and ensure that I do not act without appropriate evidence."

Currently, the SRA are seeking a stay on further soil dumping pending the results of the judicial review. Beyond that, they ultimately want to see the dump permit overturned based on their allegation of fraud, which trumps all other arguments, said SRA president Calvin Cook.

"It really comes down to site suitability. Every expert who testified [in the EAB hearing] said that there should have been more studying done of that site," Cook told VICE. "The bottom line is that this is not an appropriate site. You don't put this type of facility in a designated community watershed. Then when we find out all these other things that have gone on, it raised a lot of questions for the citizens of Shawnigan, and those questions have not been answered."

On January 6, the Save Shawnigan Water Community Action Group organized a rally at the landfill. It was attended by more than 200 people, including children's singer Raffi, who penned a new song "Beautiful Shawnigan Lake," about the issue.

Protesters also prevented trucks from entering the site and helicopter rides were arranged for local politicians and the media so that they could view the site and its proximity to the lake.

The court case is ongoing.

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