Court rejects Gwich’in Tribal Council’s regulator challenge

The NWT Supreme Court has denied the Gwich’in Tribal Council’s request to overturn the renewal of a water licence for a soil treatment facility in Inuvik.

The GTC argued it was not properly consulted and the Gwich’in Land and Water Board’s decision to renew the licence was unreasonable. It also claimed the board had no jurisdiction to issue a licence to the facility as it receives soil from outside the board’s management area.

In a ruling on Thursday, Justice Karan Shaner disagreed, finding the board’s decision was “reasonable and must remain undisturbed.”

Shaner previously ruled in March that the Tłı̨chǫ Government, which had expressed concern about how the case might affect the Wek’èezhii Land and Water Board, could not intervene.

Alberta-based waste management company KBL Environmental Ltd operates the treatment facility in Inuvik, where it stores and treats contaminated soil, snow and water.

The Gwich’in Land and Water Board approved a water licence for the facility in July 2017, which expired in June 2022.

During the renewal process, the Gwich’in Tribal Council raised compliance issues at the facility. It said soil piles exceeded the maximum height, there was a lack of proper fencing around the facility, and soil berms were not properly maintained. It urged the board to hold a public hearing.

The board asked the GNWT to inspect the facility. In an August 2022 report, the territorial government found several instances of non-compliance, including a failure to submit sample results from contaminated snow, water and soil before receiving it, improper collection and disposal of debris, and soil piles that were too high.

KBL responded that analytical results had been submitted and debris removal was scheduled to take place. Since the inspection, the company said, soil piles had been separated in two and were below the allowable height.

The board concluded a public hearing was not necessary and ultimately granted the licence.

In filing a request for judicial review, the Gwich’in Tribal Council argued the board’s decision was unreasonable as it did not consider issues of non-compliance at the facility and improperly relied on a preliminary screening. The council questioned the board’s jurisdiction and said it had breached its duty of fairness by declining to hold a public hearing.

Justice Shaner said there was no evidence presented to the court that waste was being transported to the site from outside the Gwich’in management area. She said where the facility is located and where its effects would be felt, rather than where soil comes from, are what is relevant to the board’s jurisdiction.

Shaner added the council had not raised concerns that the treatment facility was a transboundary project at any point during the licensing and renewal process.

The judge said the board took the council’s concerns and recommendations into account when making its decision and a public hearing was not required for procedural fairness in this case. She said the process the board followed was “fair, open and intelligible.”