The chill in Shawnigan Lake

By Judith Lavoie, May 2016

People who have publicly expressed concern about a contaminated soil dump are being threatened with defamation suits.

Lawyer Christopher SiverIN SHAWNIGAN LAKE there’s a macabre twist to old knock-knock jokes as residents face a flurry of visits from process servers who hand over envelopes containing legal letters demanding apologies, retractions and compensation for statements made about South Island Resource Management Ltd (SIRM)—the company that operates a contaminated soil landfill above Shawnigan Lake.

While some letters have gone to media outlets that reported on the battle between residents and the company—and the provincial government that issued the permit—others have gone to bloggers and those posting on social media.

The site, owned by Cobble Hill Holdings and South Island Aggregates, sits five kilometres uphill from Shawnigan Lake, the drinking water source for 7500 area residents who fear contaminated soil, which is being dumped in a quarry, could put their drinking water at risk. 

Residents and supporters have ferociously fought the proposal in the courts, through demonstrations and with letters since it was first proposed in 2012, but the provincial government issued a permit last year for 100,000 tonnes of contaminated soil a year to be dumped at the site for 50 years. The permit allows contaminants such as furans, dioxins, glycol and xylene, all of which can damage human health, to be contained in the soil which is encapsulated in plastic liners.

While SIRM says the soil is safely contained and there is no chance of leaching or a spill, there has been an unprecedented outcry not only from citizens, but also from Cowichan Valley Regional District politicians, provincial New Democrats and the BC Green Party, all of whom are demanding that government pull the permit. Unsurprisingly, the battle has raised questions about how much control a community has over what goes on within its boundaries.

And now citizens in the community are feeling threatened in a different way. According to Sonia Furstenau, Shawnigan area representative for Cowichan Valley Regional District, at least one dozen lawyer’s letters have been handed to community members and the number may be higher as some people are so intimidated they will not talk about it. Furstenau, among others, is describing the letters as Strategic Lawsuits Against Public Participation (SLAPP suits) aimed at keeping people quiet.

The threats of legal action have had a detrimental effect on the community and people are beginning to assume that, if there is a stranger at the door, it is likely to be a process server, Furstenau said. “It’s an intrusion into our lives that goes beyond intimidation. We all have this presence in our lives. It’s insidious,” said Furstenau who, in common with civil rights groups around the province, would like BC to enact legislation to control SLAPP suits. “These are ordinary people who have never had any brush with the law and it just effectively intimidated people,” Furstenau said.

However, the lawyer for SIRM, Christopher Siver of Mulroney & Company, who signed the letters, does not agree they have SLAPP hallmarks and is hoping recipients will apologize, retract inaccurate information and compensate the company. Several have already made retractions, he said.

“I don’t think a SLAPP suit is a fair characterization. This is not a strategic case in that it is being done in good faith. Our good name is being dragged though the mud and we know we are harmed. We are being told we are the poisoners of Shawnigan Lake,” he said. “SIRM absolutely believes in people’s right to protest and their right to disagree…but, we need people to understand that the right to protest and the right to object ends with false information,” Siver said.

A major point of contention concerns water flowing off the site during a November rainstorm and a subsequent Island Health do-not-use-water advisory. That rainwater had no contact with contaminated soil, but people said in blogs and news stories that contaminated water flowed from the site, according to Siver. “There was no contaminated water,” he said.

However, Furstenau points to two engineering reports commissioned by Cowichan Valley Regional District, one of which raised concerns about the sediment pond at the SIRM site, while the other found elevated levels of aluminum, copper and selenium in water leaving the site.

The second trigger for the legal letters is descriptions of soil at the site as “toxic” instead of “contaminated.” “These are not interchangeable terms,” Siver wrote in an email to Focus, adding, “Contamination is a defined term in the Environment Management Act (EMA). Toxic is a word that describes some sort [of] harm which could result from exposure or ingestion of some particular thing. Toxicity relates to dose. Everything is toxic at some point.…The general point is that the fact of contamination does not make something dangerous, dose does. SIRM’s mine and reclamation site accepts contaminated soils which are defined by a schedule to the regulations of the EMA. These are specifically not ‘hazardous’ waste soils as that term is defined in the Hazardous Waste Act and I am advised that at no time are the levels of contamination in the accepted soil high enough to be considered toxic.”

In another email, Siver said: “You have to stop using the word ‘toxic.’ It has no valid meaning here. It is so vague and implies certain danger and high risk. Its use is detrimental to any proper understanding of what is going on. From a legal perspective, we would view the use of the word toxic as fraught with danger and possibly defamatory so we do caution you against using such a word.”

Residents agree with Siver that toxicity depends on exposure and dosage, but fear that, over time, liners and other soil containment measures will fail and that contaminants will enter the lake, leading to an accumulation of toxins in the water and, subsequently, bioaccumulation in the bodies of those who drink the water.

“We are concerned because the scientific consensus is that all liners will fail. What’s particularly distressing is that, in the case of this landfill, the combination of contaminants sitting on those liners could result in even more rapid deterioration of the liners,” Furstenau said.

Bernhard Juurlink, a member of the Shawnigan Residents Association research team, who has a PhD in cell biology, said in a letter to Island Health that all liners, including clay, break down within decades. “Organic molecules diffuse through the polyethylene geotextile used. Hence this liner is no barrier to many of the nasty hydrocarbons present within the soils being encapsulated,” he wrote.

But Siver said comparisons with wet municipal garbage dumps are inaccurate as the stored soil is dry and the site is safe “for a couple of billion years until the sun explodes.” Even in the unlikely event of all the systems failing, describing contaminants as toxic would not be accurate as they would take about 150 years to reach the lake, he added.“Even if it leaked over ground and into the river and then into the lake, when it reaches the lake it would be dispersed at a level of about 40-billion to one, so it goes back to the level of the dose,” he said.

Most soil at the site could be compared to soil under a driveway that has been contaminated with oil and is dirty, but not toxic, Siver said. “Residents have a concern, but it is not a reasonable concern. They have a 100 percent right to have those concerns, but they just can’t lie,” he reiterated.

 

SO FAR, SHAWNIGAN LAKE RESIDENT John Keirstead is the only person known to have been served with a Supreme Court of BC notice of civil claim after ignoring the first letter he received. Keirstead, owner of Mission LED Lighting Company Ltd, writes a regular blog. One of his posts describes how Cowichan Valley citizens are being ignored by the provincial government as they fight to protect their water supply and says that “toxic, contaminated soil is being dumped into the headwaters of the drinking water source.”

The notice of civil suit claims that Keirstead “makes many statements of facts which are false and contain imputations, connotations, innuendoes and stings which would tend to lower SIRM’s reputation in the eyes of a reasonable person.”

But Keirstead has no intention of backing down and he plans to countersue. “I don’t like being bullied and that’s what these guys are doing,” he said. “I want to countersue because this is bullshit. It truly fits a SLAPP designation. They are trying to shut people up,” said Keirstead. 

Sarah Miller, a Nanaimo resident who blogs for the Huffington Post, was shocked when she received a letter from Siver about a post that made only one brief mention of Shawnigan Lake and did not name the company (“9 More Scandals of Christy Clark, BC Liberal Party”). The letter demands an apology, retraction and financial compensation for saying “there have already been a few close calls of contaminated water breaching past the dump site during heavy rainfall.” Siver wrote, “That statement is false. The sting of that statement is contaminated water left South Island Resource Management Ltd.’s mine and reclamation site. No water that contacted contaminated soil has been discharged…”

In her response to Siver, Miller wrote, “In no way did I say that it did breach; rather I referred to the incident as a ‘close call’…By definition a ‘close call’ is something that ultimately did not happen. With that being said the government’s own reports show that water did breach onto the [adjacent] CVRD property; the fact that it contained little to no contaminants is more along the lines of what I would consider a ‘close call.’ I also did not imply any negligence on your client’s part, but rather on the provincial government for granting the permit in the first place, as I believe the provincial government and the Ministry of Environment to be ultimately responsible for such matters.”

Siver, however, says that Miller’s statement was still inaccurate. “There was no close call. Nothing almost happened,” he said, meaning the legal threats are justified.

Miller’s posting developed a life of its own with one of her friends, Louise Gilfoy, receiving her own legal letter after retweeting the blog with the words “shady practices.” That was followed by another friend, Laura Colpitts, receiving a letter for retweeting Gilfoy.

“We are complaining of your retweeting of a defamatory paragraph from another author’s posting,” says the letter to Gilfoy.

“We also write to complain of one of your originally written tweets. As we are certain you are aware, you are a prolific social media user. Therefore, while we are at this time only complaining of two of your social media posts, we reserve the right to complain of others.”

Colpitts withdrew her tweet, which criticized SIRM’s “response-attack” but said when she went to the SIRM Twitter account, ready to apologize, she was blocked. 

Since her February correspondence, Miller has—carefully—written a blog entirely about Shawnigan Lake. “I think this is more just to try and silence the public and media outlets,” she said. (Shaw TV and rabble.ca have already issued apologies and retractions.)

Luke Cross of Duncan became involved in the community issue because he was shocked the provincial government granted a permit for the landfill. “The reason I came to BC is it is the most beautiful place on the planet, so I started taking videos and telling people what’s going on and making them available on Facebook and YouTube and then I got a 23-page letter objecting to the videos,” he said. “They wanted me to remove all the videos from the internet, which I did, and they wanted me to make a public apology, which I refuse to do, and they accused me of trespassing when I haven’t,” Cross said.

The letter worried his family and silenced him for a while, he admitted. “It has been a bit stressful. In fact it has been very stressful. Now I am being very careful about what I say. I don’t want to receive any more letters. It’s a big waste of my time and it worries the family,” he said. “I think it’s disgusting a company should be allowed to do this sort of thing to a community that is just wanting to speak out. What about free speech?”

But Siver says he and the company are working in good faith and have no difficulty with people protesting outside the site or complaining about the operation—provided they stick to the facts.

“We absolutely believe we have been wronged. We don’t enjoy being told we are greedy poisoners of children’s water,” he said.

Furstenau, one of Shawnigan’s most prolific bloggers, has not been taken to task about her statements being defamatory. In February, however, she received a letter from Siver accusing her of breach of privacy, breach of confidence, abuse of power and misfeasance of public office for posting the company’s Environmental Procedures Manual on her site.

The letter warns that a Notice of Civil Claim will follow if she does not immediately apologize and compensate SIRM for breaching its privacy. The take-no-prisoners tone of the letter and accusations that Furstenau obtained the manual illicitly illustrate a vast rift between the company and community representatives.

“As a result of your multiple, wrongful acts, we believe a court will compensate South Island Resource Management Ltd for the damages it has suffered to its privacy interests, its reputation and to its business interests. We also believe as a result of the multiple breaches, including the breaches of your public office duties, that punitive damages will be awarded against you,” the letter says.

Furstenau left the response to CVRD lawyers who pointed out that the manual was attached to an affidavit filed in court by the company. Their letter also noted: “We understand the Environmental Procedures Manual is a requirement of the Ministry of Environment permit and is considered to be a publicly available document by the Ministry,” says the reply.

 

BC GREEN PARTY LEADER Andrew Weaver said that whether or not the letters from SIRM’s lawyer meet the criteria for SLAPP suits, they do amount to heavy-handed intimidation. He added that it is a tactic that is unlikely to win the company many friends. “I hope calmer minds prevail and they stop frivolously slapping people around right, left and centre,” he said.

While legal experts emphasize that they cannot say whether Shawnigan definitively meets the criteria of SLAPP suits, the situation has renewed calls for the BC government to reinstate anti-SLAPP legislation .

In 2001, during the dying days of the NDP government, BC enacted groundbreaking anti-SLAPP legislation, but it was repealed five months later by the newly-elected Liberal government who argued that it would lead to a “protest culture.” 

The short-lived legislation gave judges the power to quickly dismiss lawsuits aimed at stifling free speech, with hearings taking place within 60 days of a complaint. The bill set tough standards for proving a SLAPP, but gave citizens qualified privilege to speak on matters of public interest as long as there was an absence of malice.

“It is something we would definitely be interested in seeing back in,” said Cowichan Valley MLA Bill Routley. “This kind of behaviour of trying to scare folks from exercising free speech is unfortunate to say the least.”

Chris Tollefson, executive director of the University of Victoria’s Environmental Law Centre, said the situation illustrates the need for legislation that explicitly affirms the value of public participation in matters of public interest and provides protection for those exercising their democratic rights. “From what I hear, this is something many, many people and organizations are calling for,” he said. “In my view it is a basic building block of a robust democracy.”

Quebec and Ontario now both have similar laws to ensure the courts have the appropriate tools to protect the rights of citizens, Tollefson said.

The BC Civil Liberties Association has been vocal in calling for anti-SLAPP legislation and executive director Josh Paterson said the group is seeing an increase in the number of apparent SLAPP suits. It is difficult to estimate numbers, he noted, as many people are afraid to speak out after receiving a lawyer’s letter demanding retractions, apologies and threatening legal action if they are not provided. “The pervasiveness of SLAPPs is difficult to measure because most will achieve their goals of silencing criticism long before they ever get to a judge,” he said. “These suits fly beneath the radar of public consciousness, but have a profound censoring effect.”

 

MEANWHILE, OTHER LAWSUITS related to the Shawnigan soil dump are wending their way through the courts.

Opponents received a boost last month from a BC Supreme Court decision that the landfill contravenes Cowichan Valley Regional District zoning bylaws—a ruling that is being appealed. However the victory was short-lived as the company also asked the BC Court of Appeal for a stay of the injunction preventing further dumping at the site until the appeal is heard and, on April 15, the court agreed to lift the injunction, allowing the company to complete existing contracts. The company, which argued that it could lose up to $8.2-million, leaving it open to potential bankruptcy or foreclosure, plans to continue operations until the hearing of their appeal, expected in mid August.

CVRD has responded by submitting a notice of cross-appeal requesting an order to remove the “soil management facility, the soil treatment facility and all landfill cells and any waste material, including contaminated soil and ash stored, treated or landfilled on the Stebbings Road property.”

Shawnigan Residents Association is also waiting for a decision from a judicial review of the Environmental Appeal Board’s decision to uphold the permit. The case wrapped up on February 29 and it is not known when the ruling will be made.

But, for now, individual residents are most concerned about potential fallout from speaking out in what they believed was the community’s interest. “I am absolutely disgusted that companies can use these kinds of practices to silence the public and media and I will gladly help in any way that I can to stop this from happening to others and to defend other critics of the Shawnigan Lake dump site,” said Sarah Miller, the Huffington Post blogger.

Judith Lavoie is an award-winning journalist specializing in the environment, First Nations, and social issues. Twitter @LavoieJudith

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