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No pumping from Chemainus Aquifer for now

October 11, 2011

Last July (2011)  we told you about the Halalt First Nation’s win in the BC Supreme Court to protect water flow in the Chemainus River, when the BC Supreme Court ordered a halt to the use of water from the Chemainus Aquifer until the Halalt First Nation are meaningfully consulted.  We wrote:

[I]t seems clear from the evidence that the Chemainus Aquifer cannot support the type of large-scale water withdrawals that the town of Chemainus requires in the long-term without significant negative impacts on the Chemainus River.  At one time it may have been acceptable to go ahead with the pumping regardless of these consequences for Salmon, the ecosystem, and the Halalt Nation, but no longer.

Instead, we hope that the District of North Cowichan will instead begin to examine the fundamental questions of how to protect the water in the Banon Creek Reservoir from logging and of how to ensure that the demands of current and future development are managed, and balanced with available water-supply.

Unfortunately, the District has not accepted the BC Supreme Court decision; both the District and the Province have instead appealed it. 

The District of North Cowichan has also asked for a “stay” of the BC Supreme Court decision – meaning that they would be allowed to pump water until the appeal is heard and decided.  On Tuesday (October 12th) Madame Justice Elizabeth Bennett of the Court of Appeal disagreed, saying (as quoted in the Halalt’s press release – the official reasons are not yet available):

If the evidence supported that there was a real health risk to members of the community, I would not hesitate granting an order. … Nothing (in the evidence) outweighs the constitutional rights of Halalt First Nation.

Madame Justice Bennett’s decision not to allow the pumping of water is a temporary victory - until the appeal is heard and decided upon.  The final question about whether the District of North Cowichan and the province of BC will be able to avoid the requirement to consult and accommodate the Halalt on the impact of the wells on the Chemainus River will be decided by a panel of judges.  We’ll keep you up to date on developments on this file.

By Andrew Gage, Staff Lawyer

Photo courtesy of Halalt First Nation