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A Day in Court with the Halalt First Nation

June 10, 2010

By Justin Basinger and Dyna Tuytel, Legal Interns, West Coast Environmental Law

It was a rainy morning outside the BC Supreme Court in downtown Vancouver, and while commuters outside cursed this abundance of wetness, inside the courthouse a First Nations group was fighting for their right to manage their own water supply to ensure it doesn’t go dry.

water2.jpgThe Halalt First Nation on Vancouver Island is taking the provincial government and the District of North Cowichan to court over a project to drill deep wells into an aquifer connected to the Chemainus River.  The wells would provide the residents of Chemainus with a new source of drinking water.  The extraction wells are adjacent to the Halalt First Nation reserve and on their traditional territory as defined by the B.C. Treaty Commission.

The Chemainus River is extremely important to the Halalt First Nation; it is a source of fish and water and has ceremonial, social and cultural significance.  The Halalt allege that, over time, increased extraction from the Aquifer could impact the river’s long term sustainability. They fear that existing issues with the low flow of the Chemainus River will be exacerbated and that the wells will have serious adverse impacts on salmon spawning. The Halalt First Nation is not insensitive to Chemainus’ water quality struggles, but has argued that a comprehensive plan for the Chemainus River Watershed needs to be developed before deep drilling should be used to move water from one watershed into another (despite its name, Chemainus is not located in the Chemainus River watershed).  Earlier this year, the Halalt blockaded the road in front of their band office to draw attention to the issue.

The Halalt argue that the provincial government failed to meet its duty to consult with and accommodate First Nations, as they were not kept informed of developments or consulted about changes to the proposal, and were excluded from decision-making. They are attempting to have the environmental assessment certificate permitting North Cowichan to build the wells on the aquifer struck down. The Court must decide whether the government’s duty of consultation with First Nations was fulfilled, and the result of the case could have major repercussions for the depth of consultation with First Nations required of the provincial government in environmental assessment processes affecting their lands.

It was our first visit to the BC Supreme Court, and we were excited to see how the proceedings would play out. We were struck by the sheer volume of evidence produced and presented in court. Boxes full of binders littered the courtroom. The hearing, which the Halalt’s counsel initially expected to last for a few days, is scheduled to last at least three weeks in court, and it emphasized to us how huge an undertaking this was for the Halalt.

We were fortunate enough to chat with their lawyer, Bill Andrews, during a recess in the proceedings, and were surprised to learn that the Halalt Nation, a small group of only 200 people, is asked to provide detailed input on similarly complex development proposals every day. This underscored for us the challenge that First Nations face in processing these requests with the limited resources of their small communities, and the scope and complexity of the task of keeping up with proposed developments on and changes to their traditional lands.  In this case the Halalt were able to receive a grant from West Coast Environmental Law’s Environmental Dispute Resolution Fund to hire their lawyer, but not every First Nation has this option for every consultation request they receive. It is unfortunate this dispute has had to go before a court, but the Halalt First Nation is optimistic that the strong legal basis for their concerns will be recognized.