Lack of consultation a "stunning black mark" on treaty talks, reconciliation, First Nations says

VICTORIA — A prominent Vancouver Island First Nation has accused Premier John Horgan and his government of inflicting a “stunning black mark” on attempts at reconciliation by failing to consult over plans to close a contaminated soil dump without removing the contaminated soil.

The Malahat Nation, north of Victoria, was sharply critical of the government in a private July 31 letter obtained this week by Postmedia News.

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The elected chief and councillors accuse the government of not consulting nor providing information about a closure plan that the province approved in June for a landfill in Shawnigan Lake. The site is uphill and adjacent to land the nation is set to obtain in a treaty with Ottawa and B.C., which is in the final stage of negotiations.

The dump closure plan has been widely criticized by local residents and politicians because the government did not require owner Cobble Hill Holdings to remove the approximately 100,000 tonnes of contaminated soil already at the site. Contaminants previously leaked from the landfill in 2016. The dump sits uphill from a lake that is the source of drinking water for 12,000 people.

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“Normally, one would expect the minister to take into consideration a full range of views and information before reaching a decision as significant as this closure plan,” the Malahat Nation wrote in its letter to Horgan, which was copied to the province’s chief treaty negotiator and other ministers.

“Unfortunately, we have no idea what he considered because ministry staff never consulted with us in any manner to either share their information or hear our views and concerns. We received no correspondence, no phone calls, no emails, no texts, no requests of any sort to schedule a meeting or seek our feedback. Nothing.

“We learned about the decision itself only after the fact. There was no warning or advance noticed despite its obviously implications for our lands.

“In an era in which the province is clearly striving to improve its relationship with Indigenous people, this oversight is a stunning black mark.”

The First Nation wants government to suspend the closure plan until it can explore alternative solutions.

Cowichan Valley Green MLA Sonia Furstenau said the Malahat Nation makes valid points.

“I think they are very serious concerns that have been raised,” Furstenau said. “I’d really hope the government takes these concerns and what’s been raised in these letters seriously.”

The Shawnigan Lake dump site is politically significant. Furstenau — a leading critic of the site since 2013 — won the Cowichan Valley riding from the NDP in the 2017 B.C. election. Her anger over how the previous Liberal government ignored community concerns helped sway the Greens into a power-sharing deal that toppled the minority Liberals and put the NDP into power following the election.

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But Furstenau has since also been critical of how the NDP have handled the Shawnigan Lake site.

The Malahat Nation first wrote to Environment Minister George Heyman on July 17. “No one from your ministry called or mailed us to request a meeting; no one reached out,” read that letter. “It was as if your ministry forgot the Malahat Nation even existed.”

Heyman replied with a letter Tuesday. “I would like to assure you that I share your concerns and interests regarding environmental protection,” he wrote.

Heyman said someone from the Malahat Nation was present at a meeting held during the site review process. The nation, in its letters, said government had a legal requirement to formally consult.

No one from the Malahat Nation returned a request for comment.

Cobble Hill Holdings declined to comment. It is suing the provincial government over its decision to revoke the operating permit in 2016.

The government-approved closure of the dump includes permission to import 70,000 tonnes of industrial fill to cap the site and generate money the company can use to pay other bills. That will only make it harder to clean up later if the site leaks, the Malahat Nation argued in its letter.

The closure plan also requires “enhanced environmental monitoring” through two shallow groundwater-monitoring wells and other detailed steps Cobble Hill Holdings must take to prevent pollution.

The government deadline for construction activities to implement the closure plan is Oct. 31.

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Furstenau said there’s little activity on the site to indicate that deadline will be met.

“From the point of view of the community, and they’ve been monitoring quite closely, nothing is happening,” she said. “So it would seem impossible for all of those conditions to be fulfilled between now and the end of October.”

Furstenau and the Malahat Nation have warned that if Cobble Hill Holdings goes bankrupt or fails to live up to its responsibilities, the land will default back to the province and taxpayers will have to pay for cleanup and monitoring for years.

“In 10 or 20 or 30 years, if the closure plan’s protective membrane fails and toxins begin leaching into Shawnigan Creek and the local aquifers — as gravity demands they must — Cobble Hill Holdings will almost certainly no longer be around,” the Malahat Nation wrote in its letter to Horgan.

“It will be the province that will be left holding the bag for the costs of a cleanup operation … it will be the province that will have to explain to the Malahat Nation why its treaty lands have become contaminated and rendered unsuitable for development or habitation.”

Cobble Hill Holdings owed the B.C. government $37,650 in unpaid taxes as of July.

The Ministry of Environment said in a statement that it is “continues to monitor this site closely” to make sure the proper conditions are followed.

The conflict represents a setback for a treaty process that is almost complete.

The government spent $9 million to purchase 230 hectares of nearby land for the Malahat Nation as part of the treaty in 2018, with Indigenous Relations Minister Scott Fraser saying at the time that “this land purchase is a tangible demonstration of how the province is doing things differently and taking an approach with Indigenous communities, based on partnership, respect and recognition of rights.”

That has failed to materialize in the case of Shawnigan Lake, according to the Malahat Nation letters.