A judicial review may be an option for Halalt First Nation as it continues the battle to prevent municipal wells pumping water from the Chemainus River aquifer.

Halalt Chief James Thomas said in early February that he hadn’t yet ruled out calling for a review by the courts of the BC Environmental Assessment Office (EAO) process that could give the green light to the District of North Cowichan (DNC) plan to pump aquifer water to supply the town of Chemainus.

“We had no recourse,” Thomas said about Halalt retaining North Vancouver lawyer William Andrews to continue the four-year-long dispute. He said that although funds were in short supply, a grant from the West Coast Environmental Law Society would allow Halalt to seek a solution.

Thomas said the dispute is entering a critical time. North Cowichan council was poised to sign an environmental assessment certificate in early February. The next step would be approval of the project by BC’s Environment Minister Barry Penner.

Long list not enough

Chief Thomas said that a long list of commitments by DNC did not satisfy Halalt’s concerns over rights and title or potential environmental damage as water is pumped from the aquifer.

The commitment document said that DNC will retain an independent environmental monitor for the project who will have “the authority to stop activities whenever an unacceptable environmental events occurs or appears likely to occur”.

“What are they going to do if monitoring shows there is a problem?” Thomas asked. He said that putting a stop to the pumps is unlikely to occur once the wells are supplying water to thousands of homes.

The commitment document said: “At least 60 days before the start of project construction, the DNC will submit a duty description for the environmental monitor role to the Ministry of Environment (Nanaimo); Western Economic Diversification Canada Halalt First Nation for review and comment.”

Thomas said that Halalt’s capacity to respond to such requests was limited.

Long letter spells out position

In a 25-page letter to the EAO, Andrews spelled out the Halalt position. The points included:

• Halalt firmly believes that the wells should not be approved before the adoption of a watershed management plan for the Chemainus River watershed;
• Halalt disagrees with the EAO’s conclusion that the project would not have significant adverse effects;
• Halalt asserts Aboriginal title, Aboriginal rights, and legal interests in Halalt IR#2, and that the project would interfere with these rights; and
• Halalt denies that the EAO’s conduct of the assessment of the project fulfills the constitutionally required consultation and accommodation regarding Halalt’s aboriginal title and rights.

“Halalt is not at all convinced by the claim that the project won’t harm fish habitat,” Andrews said. Another major point is that the provincial government has not adequately carried out its consultation and accommodation obligations.”

Chemainus River Wells Project Summary

Halalt First Nation has been involved in the BC Environmental Assessment Office (EAO) process since it objected to a 2003 proposal by North Cowichan to pump water from wells in the Chemainus River aquifer.

The EAO process is a cooperative federal and provincial environmental assessment under the Canada-British Columbia Agreement for Environmental Assessment Cooperation.

The aquifer, from which Halalt draws its own water, as well as supplying the nearby Penelakut reserve, lies below reserve lands and the proposed well-head sites are adjacent to reserve boundaries. The entire project lies within Halalt’s core territory.

The aquifer is connected to the Chemainus River. Halalt fears that the already fragile river and its fish stocks could be affected by the project. Because of Halalt concerns, the municipality has added a mitigation plan to its proposal and said it would monitor the aquifer for at least three years.

Halalt maintains that North Cowichan has continued with extensive residential developments in the Chemainus area despite the fact that an adequate and safe water supply is not available. The municipality has admitted that financial concerns were the main reason it wants to go ahead with the wells project (about $3 million) rather than building a reservoir and treatment facility for its current surface water source (about $20 million).