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October 17, 2021 - 7:50 AM
A B.C. Supreme Court judge has ruled the government failed to properly consult with local First Nations groups before issuing a permit for a rock quarry near Cache Creek.
The Stk’emlupsemc Te Secwepemc Nation, known separately as the T’Kemlups and Skeetchestn bands, seek to shut down the quarry, claiming they have Aboriginal rights over the land and should have been properly consulted when a permit was re-issued by the province to CN Rail, its owner, in 2019, according to a decision posted Oct. 12, in Vancouver court.
In 2017, the company applied for a new permit per required regulations to operate the McAbee Quarry and began a two-year consultation process with the First Nations and the province. The quarry has been in operation for about 40 years and CN uses it to mine ballast and to maintain rail lines.
During the consultation process, the bands said the permit could not be approved until CN Rail entered a formal agreement with the bands addressing their cultural and environmental concerns as well as historical infringement, and wanted CN Rail to adopt a fee per car of goods passing through First Nations lands.
To counter, CN Rail offered the bands $272,000 worth of manufactures “fines” produced by the quarry annually for the next five years, as well as employment for two SSN members and a scholarship fund of $50,000 for BCIT for First Nations members.
The bands refused the offer.
“It emerged that SSN’s concerns extended well beyond activities at the Quarry,” wrote Judge Geoffrey Gomery, in his decision.
The permit was issued in 2019, after the province approved of CN Rail’s application but the First Nations bands said the province failed to “adequately and meaningfully consult with SSN (Stk’emlupsemc Te Secwepemc Nation) about the potential adverse impacts of the permit on its members’ Aboriginal rights and title, and consider possible accommodation of those impacts.”
Judge Geoffrey Gomery agreed the consultation that took place “fell well short of the ideal of clear, honest, good-faith communication with a view to reconciliation.”
Although the First Nations bands asserted from the outset they would suffer many impacts from approval of the permit and raised concerns about an Aboriginal fishery close to the quarry, the province did little to follow up, he said.
The process dragged on for more than two years which “there was little in the way of direct, substantive, communication between the ministries and the First Nations group. The consultation terminated abruptly and, from SSN’s perspective, unexpectedly,” Gomery said.
But he noted SSN also bears some responsibility. “It pursued discussion of historic grievances, rather than focusing on the prospective adverse consequences of the decision at hand,” he said.
SSN directed its attention to a broad agenda with CN Rail, claiming a veto of the approval of the permit until it achieved a formal agreement with the rail company. Much of the agenda had nothing to do with the quarry and the bands failed “to bring forward evidence of adverse impacts known to it that it now places before the court,” Gomery said.
Gomery ordered the province to set aside the permit and reconsider the application and to further work with the First Nations bands but did not order the quarry to cease operations.
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