These notes are from Bill Andrews, counsel representing the Halalt in Halalt First Nation v. British Columbia (Environment), 2011 BCSC 945

The Halalt First Nation on Vancouver Island won a B.C. Supreme Court decision on July 13 regarding the District of North Cowichan’s Chemainus Wells Project.

Judge Catherine Wedge ruled that the Province failed to adequately consult with Halalt in the course of the environmental assessment (EA) which resulted in the EA Certificate for the Project; and failed to reasonably accommodate the potential infringements posed by the Project to Halalt’s Aboriginal rights and title respecting the Project area. The judge imposed a “stay” (temporary suspension) of the EA Certificate, pending adequate consultation concerning year-round operation of the well field and, resulting from such consultation, reasonable interim accommodation of Halalt’s interests: meaning, ‘no pumping.’

Halalt thank West Coast Environmental Law for funding support and the UVic Environmental Law Centre for excellent student research assistance.

Highlights from the Reasons for Decision:

·The EAO failed to do a strength of claim analysis early in the process. “The strength of claim assessment must come at the beginning of the process, not at the end, because it is the foundation for the Crown’s decision concerning the nature and scope of the required consultation with First Nations.”

·Further, “as a matter of fairness, Halalt ought to have been given an opportunity to respond to the information in the possession of the EAO upon which it based its assessment of the strength of claim and the scope of its duty to consult with respect to both the rights and title claims of Halalt.”

·The EAO erred in finding that Halalt has a weak prima facie case for Aboriginal title. Halalt has a good prima facie case for Aboriginal title to its reserve and traditional territory, based on shared exclusive occupancy at the time of the assertion of sovereignty. The Supreme Court of Canada had commented that shared exclusive occupancy could support shared Aboriginal title, (but there had been no court decisions dealing with shared exclusive occupancy facts).

· The District used a “phased approach” to get approval of part of the Project (winter pumping) in order to (a) get its infrastructure funding and (b) come back to the Province later to get approval of summer pumping. Year-round pumping is the true objective of the Project. Consultation and accommodation has to be focused on year-round pumping.

·This “phased approach” improperly avoids a full EA of summer pumping, because the Certificate could be amended under s.19 with only a “mini-assessment.”

· The judge said the EA process used in the Halalt case (the current norm) is significantly different (weaker) than the former BC EA process that the Supreme Court of Canada found to be an acceptable way to do consultation in the Taku River Tlingit case.

·The length of the record (thousands of pages of emails, letters, phone notes and draft reports) does not establish that the Province discharged its constitutional duty.

· Toward the end of the EA process, the EAO, without notice to Halalt, limited the Project to winter pumping and summer pumping only for emergencies and testing. The Province argued this constituted accommodation of Halalt’s rights and title. The court rejected this argument, saying there was no actual dialogue with Halalt about the specific accommodations the Province is said to have implemented. (Accommodation is not “manna from heaven.”)

· Further, removal of summer pumping except for emergencies and testing was not accommodation because it also removed the protection of environmental assessment of summer pumping (since the District’s stated objective was to later apply for a Certificate amendment to allow summer pumping.

· There was no evidence that the Project as approved (only winter pumping and no summer pumping except emergencies and testing) would not have significant adverse environmental effects.

· The Certificate leaves to DNC and the Vancouver Island Health Authority (VIHA) – whose interests, the court found, are aligned – to approve summer emergency testing.

· The Certificate gives Halalt no role in monitoring. “It is a matter of common sense that the design of the monitoring program to detect adverse effects of the wells, and the responsibility for the monitoring of their effects on a day-to-day basis, should not be left solely, or even primarily, in the hands of the Project’s proponent.” [698]

· Contrary to the Province’s argument, “there is no rule or principle of law which suggests that financial compensation as a form of accommodation in pre-proof circumstances is not available to First Nations.”

· Financial compensation was one of several options that ought to have been available as a means of accommodation for discussion between Halalt and the Province.

· Halalt has an arguable case that it owns the groundwater underneath the Reserve. The BC Water Protection Act s.3 says the government owns all groundwater in the Province and “is conclusively deemed to have always been vested in the government.” Therefore, when the Halalt reserve was created it arguably included the groundwater.

· Halalt argued against any pumping. But in the alternative, if pumping is (eventually) allowed then the government should negotiate with Halalt regarding financial compensation for removal of groundwater as a matter of accommodation of the Project’s impact on Halalt’s claimed Aboriginal title.

· The District knew since at least 2005 that the Project might cause significant adverse environmental effects to the Chemainus River at the Halalt Reserve. There was never any assurance given to DNC that it would succeed in getting summer pumping allowed so that it would not have to implement surface water treatment.

· The question of the effects of year-round groundwater extraction on the Chemainus River remains unanswered. The question can be answered only if further testing is carried out and proper mitigation measures are developed in advance of testing. Only then will the District know whether it must upgrade the surface water supply system.

· The District’s intention to show that summer pumping can be successfully mitigated with the water release concept is far from assured.

The court’s decision came after 23 days of oral hearing spread over several months in 2010. There has been no word from the Province or District yet whether they plan to appeal.

The court’s Reasons for Decision are at http://www.courts.gov.bc.ca/jdb-txt/SC/11/09/2011BCSC0945.htm .

I am counsel for the Halalt First Nation in this proceeding. If you have any questions or comments I would be happy to respond.

Regards,

Bill
William J. Andrews, Barrister & Solicitor

1958 Parkside Lane, North Vancouver, BC, Canada, V7G 1X5

Phone: (604) 924-0921 Fax: (604) 924-0918 Email: wjandrewsshaw.ca