Judge slams province over lack of First Nations consultation

Photo: Broda Group

The McAbee Quarry, east of Cache Creek, has been in operation since the late 1970s and is the only ballast source for CN in Western Canada.

A B.C. Supreme Court judge has set aside a 2019 permit issued by the province allowing CN Rail to continue to operate a gravel quarry near Cache Creek, ruling the government failed to adequately consult with local First Nations.

The ruling is a win for the Tk’emlups te Secwepemc and Skeetchestn bands, collectively known as SSN, which fought the permit in court. But the judge stopped short of shutting down work at the site for the time being.

B.C. Supreme Court Justice Geoffrey Gomery also had some strong words for the First Nations, which he said tried to use their seat at the table as leverage for potential negotiations with CN to come to an agreement on a “rate fee per car of goods” passing through their territories.

The McAbee Quarry, east of Cache Creek, has been in operation since the late 1970s and is the only ballast source for CN in Western Canada — an important asset for the transcontinental railway, court heard.

Regulations required the company to apply for a new permit for the quarry in 2017 and a consultation process began involving the two bands, CN and B.C.’s Ministry of Energy and Mines.

Throughout the consultation process, SSN made it clear it wanted to open talks with CN on a scale larger than the McAbee Quarry. In addition to discussion about the environmental and cultural impacts of the gravel pit, the bands also said they wanted to come to an agreement with the railway on a per-car fee for trains passing through First Nations lands.

In early 2019, CN made the bands an offer that would have seen them provided with $272,000 worth of gravel byproduct each year and two guaranteed full-time jobs for band members at the McAbee Quarry, as well as a $50,000 scholarship fund for band members to attend post-secondary school.

The bands said that offer was not satisfactory. In subsequent correspondence, SSN described CN’s negotiation efforts as “dismissive and inadequate.”

CN eventually pressed the ministry for a decision, asking for “renewal on an expedited basis.” The company told government officials in a letter it needed to get the quarry back online — CN cited "critical urgency" to ensure it had enough ballast for "continued safe operations."

The application was formally approved nine days later, on April 11, 2019. SSN representatives were notified of the decision by email five days after that.

SSN then sought judicial review in B.C. Supreme Court. Hearings took place over four days in July and a decision was handed down this week in Vancouver.

Gomery said the consultation that took place between the bands and the province “fell well short of the ideal of clear, honest, good-faith communication with a view to reconciliation.”

But, he said, both sides bear some responsibility — SSN for pursuing “discussion of historic grievances” and the province for the decision to “bring the consultations to an abrupt, unheralded conclusion.”

“SSN’s negotiating objectives extended well beyond the quarry to the impacts of CN’s railway operations across its territory,” he said.

“I infer that SSN was attempting to use the pending [quarry] application as leverage in pursuit of other objectives, such as obtaining ‘a rate fee per car of goods passing through’ its territory. CN was uninterested in entering into the kind of negotiation SSN had in mind.”

Gomery said SSN’s hard-line approach to the negotiations, and its desire to use the quarry as leverage with CN, did not absolve the province of its duty to consult with the First Nations.

“What took place in this case cannot fairly be described as a process of reconciliation through consultation and accommodation,” he said.

“B.C. is not relieved of its obligation to do better by SSN’s lack of focus and its pursuit of an agreement with CN.”

Gomery set aside the 2019 permit and ordered the ministry reconsider the application while consulting further with the bands.

SSN had asked Gomery for an injunction to stop work at the site pending the reopened consultation process, but the judge said he would leave the status of the quarry up to ministry officials.