Lindsay Kines / Times Colonist
August 15, 2015 06:00 AM
The Shawnigan Residents’ Association celebrated a victory Friday in its ongoing fight against a contaminated-soil dump uphill from Shawnigan Lake.
A B.C. Supreme Court judge dismissed an application by the site’s owners that would have required the association to post money up front before continuing with legal action. The money could then be used to pay the costs of the site’s owners, Cobble Hill Holdings, if the residents lost their case.
In deciding for the residents, Justice Keith Bracken noted that security-for-costs applications can sometimes be used to shield parties from scrutiny.
He said there is a public interest in ensuring the safety of the Shawnigan Lake watershed, and he ruled that the residents’ association should be allowed to proceed with its legal battle in the interest of justice.
Calvin Cook, association president, said Bracken’s decision represents a “small step” forward.
But Cook said association would have found the money even if the ruling had gone the other way.
“That really wouldn’t have been an impediment at all,” he said.
“The community is firmly, firmly committed to opposing this.”
The residents are trying to overturn an environment appeal board decision and cancel a permit that allows Cobble Hill Holdings to store up to 100,000 tonnes of contaminated soil a year in a quarry five kilometres uphill from Shawnigan Lake.
Residents fear contaminants will leach from the Stebbings Road site and pollute their water supply.
The association said its case is bolstered by the recent discovery of an alleged profit-sharing deal between the site’s owners and Active Earth Engineering, which was hired to do a technical assessment of the site.
Cobble Hill Holdings president Mike Kelly has said the agreement was signed in February 2013 and never acted upon.
“The parties simply changed their minds and the agreement was abandoned thereafter,” he said.
The residents’ association, however, said newly disclosed documents show Cobble Hill Holdings and its affiliate, South Island Aggregates Ltd., working closely with the engineers in a new company through 2013 and into 2014.
The association alleges that partnership placed the engineers in a conflict and raises questions about their technical findings and the site’s safety.
The judge made no findings of fact with regards to the association’s allegations, leaving that to court proceedings still to come.
Victoria lawyer Aurora Faulkner-Killam, who represents Cobble Hill Holdings, said her clients can, and will, offer an explanation.
“What my clients say about these documents is that [they’re] not being put in the correct light, that the submissions about them are being taken out of context and that their opportunity to respond to them is still to come.”
She noted that if her clients win in court, they likely will have a difficult time recovering their costs from the residents’ association.
“We have a group that has no assets to call its own … and who is raising funds to take a position legally largely by donation,” she said.
“If they’re found to have been wrong, my client will likely be without any recourse.”
Richard Margetts, who represents Active Earth Engineering, said his clients have been the target of an unfair “slur” without any evidence of wrongdoing on their part.
“It’s important to note that, at this point in time, no allegations have been made against Active Earth,” he said.
“They were acknowledged to be an advocate for South Island Aggregates by the environmental appeal board and, at this juncture, their professional ability and qualifications can’t be an issue.”