Chemainus aquifer water to start flowing after Nov. 22 appeal-court ruling

Halalt member John August makes a blunt point to miffed motorist Doug Estey during the Halalt
Halalt member John August makes a blunt point to miffed motorist Doug Estey during the Halalt's 2010 Chemainus Road blockade protest about North Cowichan's water-well project.
— image credit: Peter W. Rusland file

Water from Chemainus River's aquifer, running under Halalt First Nation territory, can now be pumped to town residents during winter months, after Thursday's B.C. Court of Appeal ruling.

North Cowichan Mayor Jon Lefebure said one of the municipality's two pumps will start pushing water in the next few days after the lines are flushed of sediment.

Municipal taxpayers' legal costs were about $170,000 in the appeal victory, staff said.

Halalt Chief James Thomas said he and his people are considering an appeal through their lawyers connected with the West Coast Environmental Law Association that's defraying some 75% of Halalt's legal fees.

The unanimous decision by three judges overturns last year's ruling in Halalt's favour — appealed in July 2011 by B.C.'s environment and community-development ministries, and North Cowichan council — by a B.C. Supreme Court judge.

Judge Wedge found Victoria hadn't adequately consulted with the Halalt about granting North Cowichan's pumping permit, and its effects on Halalt's water resource.

But three appeal-court judges disagreed yesterday.

"In my view," Justice Chiasson writes, "the chambers judge erred in law by requiring continued consultation on year-round pumping and erred in fact in concluding that such consultation had not taken place.

"In my view, the judge's conclusion that the Crown did not reasonably accommodate the interests of the Halalt was based on her misinterpretation of the effect of the Certificate. This led to an incorrect characterization of the scope of the Project as approved.

"On the facts, there clearly was deep consultation. The accommodation of limiting pumping to a single pump during the winter months was reasonable."

Chiasson's finding was supported Thursday by madam justices Smith and Neilson.

But Chief Thomas rejected the three judges' ruling that deep consultation happened.

"There wasn't deep consultation, but there was long consultation," he told the News Leader Pictorial.

Lefebure said he wasn't surprised, but hopeful, about the appeal's outcome, stressing council wishes to work closely with Halalt leaders concerning the municipal well project in their territory.

"The environmental assessment office (permit granters) said they had to be careful, and cross all T's and dot all I's," he said, noting North Cowichan staff followed the EAO's advice.

"We thought we'd done the right thing all along.

"Our permit is not for year-round use," Lefebure said of pumping allowed between October and June by the $5-million well project.

"If we got to a point where we ask to increase the amount of water, we'd need to use the second pump, but we're limited under the current permit," the mayor said of allowed volumes that prevent boil-water advisories, plus sediments from reaching homes.

"With two pumps you have a back-up in case one fails."

Chief Thomas said he's concerned about how lower volumes could affect drinking water and fish needs — especially during dry summer months after coho and steelhead fry died this fall.

"We'll see. No one's been taking that volume out of the river," he said, noting government river monitoring is planned during the next few years.

"There'll definitely be an impact."

Still, Lefebure stressed the appeal court's ruling isn't about First Nations' water rights.

"It's about if, in this case, the province consulted with (Halalt).

"We're very pleased to provide residents with this clean, safe water, but we also realize our Halalt neighbours may be disappointed with this (appeal) outcome.

"We're committed to continuing to work with them on the Chemainus wells project, and other projects in their traditional territory — such as (replacing) the Chemainus River Bridge."

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