EDITORS NOTE: This mailing also came with the attached note from Arthur Caldicott;

In this decision from last week, the BC Supreme Court found that the BC Environmental Office, the BC Government, and the District of North Cowichan had failed to adequately consult and accommodate the interests of the Halalt First Nation with respect to an environmental assessment of new wells for Chemainus. Chemainus is within North Cowichan municipal boundaries. The wells have now been drilled into an aquifer which is adjacent to the Chemainus River, and are within Halalt reserve and traditional territory.

The judge said the wells cannot be used, until adequate consultation has taken place.

This decision is interesting in and of itself since it solidifies and clarifies aboriginal title and rights with respect to groundwater. It will have an as-yet-undetermined effect on the extent of consultation which governments must exercise in permitting activities related to groundwater (and probably surface water). And it may have retroactive repurcussions - First Nations may already be taking a look at historical infringements of these rights, and it would be reasonable for them to pick the biggest ones first, those being local government and industrial licences.

This puts a heavier onus on the BC EAO and CEAA with respect to both groundwater, and consultation and accommodation of First Nations. I'm not a lawyer, and it would be helpful to have some lawyerly insight, but it gives the K'ómoks First Nation especially, and other first nations, more clout than they had prior to the decision.

Here's the judge's reasons for decision. The "remedy" is on the last page. She puts a "stay on any actions following from the environmental assessment approval, namely, use of the wells.
http://www.courts.gov.bc.ca/jdb-txt/SC/11/09/2011BCSC0945.htm#_Toc298310385
Arthur

Court calls halt to $6M water project
By Judith Lavoie, Times Colonist July 14, 2011

The Halalt First Nation of Chemainus is celebrating a victory in B.C. Supreme Court after a ruling Wednesday that halts a $6-million District of North Cowichan drinking water project.
Justice Catherine Wedge ruled that the province failed to adequately consult with Halalt before issuing an environmental assessment certificate allowing North Cowichan to tap into an aquifer that runs under reserve land into the Chemainus River.

Wedge said Halalt has a strong case for aboriginal title on traditional territory beside the Chemainus River.

Pumping of water from the aquifer, through two extraction wells, must be "stayed pending adequate consultation concerning year-round operation of the well field and, resulting from such consultation, reasonable interim accommodation of Halalt's interests," Wedge said.

Chief James Thomas said the ruling is a victory which has ramifications for First Nations across Canada.

"It's awesome. It's a big victory for everyone across the country," he said. "Water is one of our most important resources and it's an issue across Canada."

Water is also one of the few resources on Halalt traditional territories that has not yet been "screwed up," Thomas said. "Our concern is, once the water is depleted, we won't be able to replace it," he said.

North Cowichan Mayor Tom Walker and municipal staff were not available to comment Wednesday. A municipal spokeswoman, who would not be identified, said "staff are still reviewing the ruling and they don't have anything to say at this point."

The North Cowichan project, which received infrastructure funds from the federal and provincial governments, would pump water from the aquifer from October to June to provide clean drinking water for Chemainus residents, who now rely on surface water and face regular boil water advisories.

Wedge said residents of Chemainus will not be deprived of drinking water as they are "currently receiving potable water from the surface water supply during the summer months under the terms of the certificate."

Halalt say drawing water from the aquifer could jeopardize the drinking water of band members in addition to threatening water levels and fish stocks in the Chemainus River.

The disagreement started in 2003 when North Cowichan first applied for an environmental certificate and in 2009 Halalt started legal action, asking for a judicial review of the project.

Last year Halalt, supported by some community members, blocked Chemainus Road for almost two weeks to bring attention to their concerns.

"It has been a long haul," said Thomas, adding that the next step will be to meet with lawyers to talk about costs.

Part of the legal bill was funded by West Coast Environmental Law.

jlavoietimescolonist.com

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