Legal cloud remains over Cache Creek landfill expansion
B.C.'s high court has ruled an Interior aboriginal group may not have been properly consulted in the environmental assessment of a proposed major expansion of the Cache Creek landfill.
The B.C. Court of Appeal did not immediately quash the environmental certificate issued last year, but ruled B.C.'s environmental approval process was defective and left the door open for the Nlaka'pamux Nation Tribal Council (NNTC) to file a new legal challenge to overturn the approval.
At stake is whether or not the Cache Creek landfill will be permitted to take garbage from Metro Vancouver for another two decades or more.
The 40-hectare expansion is proposed by the Village of Cache Creek and landfill operator Belkorp Environmental Services, even though Metro's board has vowed since 2008 to stop dumping in the Interior and deal with the region's waste closer to home.
Metro wants to pursue waste-to-energy options, which could see it build a new incinerator to burn garbage that can't be recycled.
Some opponents who fear worsening air quality in the Fraser Valley hope Victoria rejects the idea – the province must still make a decision on Metro's draft solid waste plan – and direct the region to keep trucking waste to Cache Creek.
The appeal court ruled the Environmental Assessment Office should have formally consulted the NNTC, which has opposed the dump expansion on grounds it may leach toxins and contaminate groundwater and local wildlife.
"Denying the NNTC a role within the assessment process is denying it access to an important part of the high-level planning process," the court found.
Successive court rulings have found governments have a duty to consult First Nations whose aboriginal rights may be infringed when a major project is proposed on land they claim.
The province's environmental review did consult numerous local bands, some belonging to the broader Nlaka'pamux First Nation and others to the Secwepemc First Nation, neither of which has a governing body speaking for the whole group.
Some of the bands back the expansion and the jobs the landfill provides, while others, particularly the ones allied with the NNTC, oppose it.
Both the Nlaka'pamux and Secwepemc claim the land the landfill extension sits on.
The competing claims and animosity between aboriginal groups made it a "daunting" job to craft a meaningful yet efficient consultation process, the court found.
"Difficult as it might have been to fulfill," the judgment said, "the Crown's duty to act honourably towards First Nations makes consultation a constitutional imperative."
Cache Creek Mayor John Ranta said the next step depends on whether the NNTC now moves to overturn the environmental certificate.
"If they're successful, that may put the project in some jeopardy," he said.
A previously approved short-term expansion of the landfill allows Metro to continue using Cache Creek until about the end of 2015.
Metro waste management committee chair Greg Moore said the ruling does not appear to affect the region's direction, as Metro intends to have new waste-handling facilities in place within the next few years.
"We don't plan on using Cache Creek past our current contract date," he said.