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Wrap up on the Texada court challenge - but decision still to come

Submitted by Peter Johnston on October 30, 2014 - 1:43pm
Hello Everybody!
Our three days in court to challenge the Texada coal port approval finished yesterday.
Thanks to everyone who chipped in to make it financially possible for us to do this on behalf of us all!  West Coast Environmental Law paid half of the $10,000 cost, and thanks to all your contributions, yesterday we reached the needed $5000 to pay for our half of this legal challenge.
So a heart-felt thank you to the people of Texada, Lasqueti, Denman, the Sunshine Coast, Vancouver, New West, and Victoria who contributed to making this possible.
Our side:

Our lawyer, Tim Howard, did a masterful job of laying out our challenge to the judge.
His key arguments were
1) that the Mines Act - which governs the operation of a mine - cannot be used to approve an international coal port.
and
2) that the Ministry of Mines withheld information from the public which restricted their ability to comment on the proposal.
Due to these facts, he argued that the permit should be quashed and the matter returned to the government to address correctly, which includes a more open permitting process from the Ministry of Environment.
On the other side (also known as The Dark Side):
Defending the government's permit approval was a legal team of three lawyers, comprised of two lawyers for Lafarge and one from the BC Attorney-General's office.  Call me simplistic, but it was a bit galling to see the BC government lawyer, paid for by us taxpayers, acting in close cooperation with the two lawyers acting for Lafarge...and in opposition to citizens of  BC.
The BC government and Lafarge lawyers argued that VTACC should not be able to bring this case to court as, they claimed:

1)  VTACC as an entity is not directly impacted,

2) the matter is of "little public interest",

3) the matter is only of "local interest, not regional interest"

4) and that VTACC was using this case as a "bully pulpit" to - hah!- beat up Lafarge and the provincial government.
They also sought to have some of our evidence dismissed.  For example, they argued that I only took some of the photos of coal contaminating the beach included in our affidavit.  Additional photos included were sent to me by Texadans.  As  such, I should not be able to legally swear those additional photos were actually taken on Texada!  (I'm not sure the judge was impressed by this argument.)
More legal arguments from The Dark Side:
1. The BC Government lawyer said this is a matter of small importance -- it's just a simple amendment to a Mines Act permit.  "Nothin' for anyone to see here folks, just move along..."

As our lawyer pointed out:

this ignores the fact that the Texada site will go from handling 135,000 to 350,000 tonnes of domestic coal each year, mostly for the local cement industry, to exporting 4 million tonnes of US thermal coal each year, and eventually 8 million tonnes - or more - each year, all delivered by open barge from the Fraser River through the windy Strait of Georgia.

2. Lafarge says if the courts quash this permit amendment, nothing will have changed -- Texada Quarries will still be able to export coal.

Yes, but not the massive, illegally permitted quantities of US coal in this proposal.

3.. Gov't and Lafarge say that if the Ministry of Mines  isn't allowed to oversee permitting of this coal port, there will be chaos -- workers will be at risk, hazards will abound, anarchy will rule!

As our lawyer responded,

this ignores the fact that bulk storage facilities, including coal ports, operate across BC everyday without Ministry of Mines oversight and without incident.  In fact the other new coal port - not regulated by the Ministry of Mines - is being held to be held to a higher standard.

The proposal from  Fraser Surrey Docks to handle the same coal that will be exported from Texada Quarries, in the same volumes, before it is barged to Texada Quarries, has received a much more extensive review (though not enough).  Quashing this permit would not lead to chaos, it would provide a path out of it -- by ensuring that this project is given more thorough review from the Ministry of Environment in the form of an Air Quality Assessment, Air Quality Management Plan, Waste Discharge Permit, etc.

4. Gov't and Lafarge also tried - surprisingly in my opinion - to claim that the Texada Quarries proposal is not dependent on the Fraser Surrey Docks proposal for moving dusty Powder River Basin coal.

Our lawyer pointed out that this statement is contrary a huge amount of public information from Lafarge itself and from Fraser Surrey Docks.

5.  The lawyer for Lafarge finished by applying to have VTACC's challenge dismissed and VTACC assessed for Lafarge's legal costs.

Will we win?  I have no idea, but we did as good a job as possible putting this before the court.  Apparently it will be months before the judge will deliver her judgement.

Sometime in 2015 our other legal challenge - against the Federal approval of the Fraser-Surrey Docks end of the plan - will go to court.   And on that challenge we have been joined by the City of Surrey and the City of New Westminster.  Tune in for that one, when tax-payer-funded Federal government lawyers go up against Canadians who want to protect their health and environment!

Meanwhile, we continue to fight for coal-dust free water, air, and sea, (and millions of tonnes of carbon emissions not heading into the atmosphere via Texada Island.)

Thanks again for all your support,

Donald Gordon

   
   
   
   

 

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