N.W.T. judge sides with water board in Gwich'in Tribal Council's fight against licence renewal

An N.W.T. judge has rejected the Gwich'in Tribal Council's (GTC) effort to overturn a water licence renewal for a company remediating soil, snow and water in Inuvik. 

Last week, Justice Karan Shaner dismissed the GTC's application for a judicial review of the Gwich'in Land and Water Board's decision to renew the licence for KBL — an Alberta-based company with roots in the North. 

The facility is operated by KBL Environmental at the Inuvik landfill. 

Its original Class B water licence allowed the company to store and treat soil and snow contaminated with oil and fuel from cleanup jobs it does in the region.

In 2021, the company asked for an amendment to their water licence to include the treatment and storage of contaminated water as well.  

GTC did not challenge that amendment.  

But when the licence was up for renewal in 2022, the GTC asked the board to hold a public hearing citing concerns with the facility's compliance with its licence. 

Among the GTC's concerns was the volume of material, including water, stored at the site and the stockpiled soil which was higher than the four metres allowed in the licence.  

It also raised concerns about another incident at KBL's facility in Hay River, which had discharged contaminated water into a municipal sewage lagoon. 

In court documents, GTC said the board's decision to renew the licence was "unreasonable" because it didn't consider those cases of non-compliance.  

They also said because the scope of KBL's licence now included water treatment, it should have gone through another level of screening. 

What the judge had to say

In her decision, Shaner said the GTC's concerns about the expanded scope of the original licence should have been raised three years earlier — when the GLWB amended the scope of the licence to include water.  

She said the board had brought the GTC's concerns about compliance to the territorial department of Environment and Natural Resources, which was then responsible for compliance and enforcement.  

Shaner said a report from the department didn't find any major compliance concerns, and those it did find were rectified, or being rectified.  

KBL's president and CEO, Jeff Dirks, said they are pleased with the court's decision. 

"From our perspective we had followed all requirements of the regulatory process," Dirks said. 

He said the company has also addressed all of the compliance issues raised in the department's report. 

In its call for a judicial review, the GTC also argued the board didn't have the jurisdiction to issue the licence, because the operation had transboundary effects. 

Shaner determined there was nothing in the record to support the claim that the operation had transboundary impacts. 

She said that's because the facility itself is "wholly within the Gwich'in jurisdiction" and doesn't involve depositing waste outside that jurisdiction. 

GTC 'disappointed' and looking into an appeal

GTC Grand Chief Ken Kyikavichik said they're disappointed with the decision. 

He maintained that the proper process was not followed when the licence was renewed. 

He also said KBL only rectified the concerns on the site because the GTC raised those concerns with the board in the first place, and that was years after the original licence was issued. 

Kyikavichik said their issue is with the board and the "administrative fairness that was not followed with this case" because their requests for a public review were "disregarded." 

He said part of the reason the land and water board exists is to uphold the rights of the Gwich'in in their settlement area, and their lawyers will review the decision and look at the legal options open to them, including the possibility of an appeal.