Court rules inadequate groundwater consultation


Halalt Chief Welcomes Court Decision


HALALT – Chief James Thomas welcomed (the July 13) B.C. supreme court decision that the Halalt First Nation on Vancouver Island has a strong case for aboriginal title regarding its traditional territory on the Chemainus River.

Madam Justice Catherine Wedge ruled that the province failed to properly consult and accommodate the Halalt First Nation when it approved municipal drinking water wells built adjacent to Halalt’s reserve on the Chemainus River.

The judge said that the First Nation has an arguable legal case for an ownership interest in the Chemainus Aquifer, most of which underlies the reserve.

Chief Thomas said, “We’re glad the court recognized the strength of our aboriginal title claim and our interests in the groundwater. The band council and the Halalt community have been really strong about protecting the river and the aquifer that we rely on.”

The court’s decision means no pumping will be allowed at the District of North Cowichan (DNC) wells project until proper consultation and accommodation is completed. Pumping had been scheduled to resume in October for the winter months.

As for Chemainus residents’ water supply, the judge said: “… residents of Chemainus will not be deprived of potable water. They are currently receiving potable water from the surface water supply during the summer months under the terms of the certificate.”

Chief Thomas thanked his community and other First Nations for their support since the municipality first applied for an environmental assessment of the project in 2003. He also commended the work of lawyer Williams Andrews of North Vancouver as well as support from West Coast Environmental Law, UVic Environmental Law Centre, the Chemainus Residents Association and other supporters in the local community.

At the core of the decision was the lack of proper consultation and accommodation that was given to Halalt from the time the DNC first applied for an environmental certificate for the project in 2003. The certificate was awarded by BC’s Environmental Assessment Office (EAO ) in 2009. Halalt First Nation brought the legal action in September 2009. After 23 days of oral hearing, legal argument concluded in November 2010.


Chemainus Water Wells Project – Reasons for Judgment


NORTH COWICHAN – The Supreme Court of British Columbia released its Reasons for Judgment on July 13, 2011 in the matter of Halalt First Nation v. British Columbia, in which the Halalt asserted Aboriginal rights and title to the Chemainus Water Wells Project, claiming the Province failed to adequately discharge its constitutional duty to consult with Halalt and reasonably accommodate its interests regarding the project.

The Municipality of North Cowichan is currently reviewing the 178 page Court document with its legal counsel in consultation with the Province.

“l am very interested in hearing back from the Province and the Environmental Assessment Office on this ruling and the next steps,” stated Mayor Tom Walker.

The Environmental Assessment Office issued a certificate to the Municipality of North Cowichan in 2009 allowing the Municipality to pump water from the Chemainus River aquifer between October 15 and June 15 annually. North Cowichan has been adhering to the requirements of that certificate, including providing water to Chemainus from Banon Creek between June 15 and October 15 each year.

Mayor Walker added, “North Cowichan remains committed to providing the residents of Chemainus with clean and safe drinking water, and working with the Halalt on matters of mutual interest.”

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