South Island Aggregates (SIA)
On June 15, 2017, the Supreme Court of Canada dismissed the Cowichan Valley Regional District's (CVRD’s) application for leave to appeal from the judgment of the BC Court of Appeal in the case of CVRD vs. Cobble Hill Holdings et al. The application for leave was filed with the Supreme Court of Canada on December 29, 2016
On December 29, 2016 the CVRD filed an application for leave to appeal to the Supreme Court of Canada in relation to the South Island Aggregates (SIA), Cobble Hill Holdings (CHH), and South Island Resource Management (SIRM) contaminated soil landfill facility in Shawnigan Lake.
The application sought to have the Supreme Court of Canada review the November 3, 2016 decision of the BC Court of Appeal. That decision reversed a March 21, 2016 BC Supreme Court order finding that the contaminated soil landfill facility located at 640 Stebbings Road in Shawnigan Lake was not a permitted use on the property under the CVRD's zoning bylaw, and enjoining its further operation. The Court of Appeal reversed that order, permitting the landfill facility to operate.
The CVRD sought leave on the basis of three grounds which can be generally summarized as follows:
- The Court of Appeal erred in setting aside the key factual findings of the BC Supreme Court that CHH, SIA and SIRM were using the property as a landfill; that the material they were importing was waste; and that the landfill facility was not integral to the permitted quarry operation on the property;
- The Court of Appeal incorrectly determined that Provincial mining decisions take exclusive precedence over Regional District land use bylaws; and
- The Court of Appeal erred in finding that the Regional District’s authority to regulate soil deposit restricts the Regional District’s authority to regulate land uses.
The application also gave notice that if leave is granted, the CVRD will also be seeking an order requiring the removal of the landfill facility.
On November 3, 2016 the BC Court of Appeal allowed the appeals of Cobble Hill Holdings (CHH), South Island Aggregates (SIA) and South Island Resource Management (SIRM) finding that the Province has exclusive jurisdiction to regulate the operation of a quarry and its site reclamation. The Court found that the “on-site facility for backfilling the quarry” reclaims the quarry and is outside the jurisdiction of the Cowichan Valley Regional District (CVRD) to regulate under its zoning power. The Court therefore overturned the BC Supreme Court’s orders with respect to the landfill facility.
The Court did find that with respect to an on-site facility for treating contaminated soil, which is not in operation, local government jurisdiction is engaged as the facility is independent of, and not integral to restoring the landform. The CVRD’s zoning bylaw does not permit the facility. The Court therefore upheld the BC Supreme Court’s order preventing CHH, SIA and SIRM from operating the soil treatment facility.
On March 21, 2016, the BC Supreme Court ruling declared a contaminated soil treatment facility and a landfill facility operated by South Island Resource Management Ltd (SIRM) are not permitted uses on the property located at 640 Stebbings Road, Shawnigan Lake. The court ordered the owners and operators to cease importing waste material, including contaminated soil that is required to be permanently encapsulated in engineered cells on the property.
On March 24, 2016, Cobble Hill Holdings/South Island Aggregates (CHH/SIA) and SIRM filed appeals with the BC Court of Appeal of the order of Mr. Justice Mackenzie along with an application to stay certain orders of the court to permit it to continue the use of the property as a landfill facility pending the hearing and determination of their appeals.
The stay application was heard in Vancouver on April 6, 2016. On April 15, 2016, Madam Justice Kirkpatrick of the BC Court of Appeal granted a limited stay of certain orders of Mr. Justice Mackenzie regarding the contaminated soil treatment and landfill facility at 640 Stebbings Road, Shawnigan Lake. This will allow the operator to continue landfilling contaminated soil on the site.
For two days during the week of August 15, 2016 the appeals by CHH/SIA were heard by the BC Court of Appeal.