Court nixes short-term tapping of Chemainus River aquifer

Halalt chief James Thomas, centre, and supporters left the Vancouver courthouse victorious this week. -
Halalt chief James Thomas, centre, and supporters left the Vancouver courthouse victorious this week.
— image credit:

Constitutional rights of Halalt people trumped health risks during Tuesday's court sinking of a request to use Chemainus River’s aquifer.

B.C. Court of Appeal Judge Elizabeth Bennett decided pipes to North Cowichan’s new $6-million well system must stay closed until the Supreme Court hears a separate appeal case next year between Victoria and Halalt First Nation.

Municipal council had asked Bennett if it could pump from the aquifer until that Supreme Court appeal case is heard.

But Halalt lawyer William Andrews argued if pumping was allowed in the meantime, there’d be no need for the province to consult the Halalt about using the aquifer under its territory.

Bennett ruled constitutional principles trumped pumping water she deemed safe for 6,000 Chemainiacs.

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

Next year’s appeal case between the Halalt and Victoria concerns what the courts said in July was B.C.’s failure to adequately consult the band before granting North Cowichan’s permit to build new wells for Chemainus.

Andrews believed Bennett made the right decision.

“It confirms the courts take Aboriginal rights and title very seriously.

“The arguments (municipal lawyers) made to pump were the same ones made to Judge Wedge in July. “Those were rejected and the outcome was the same.” Chemainiacs now continue drawing water from Bannon Creek, Mayor Tom Walker said.

“It’s safe water,” he said, disappointed by Bennett’s ruling. “This is the water we used all summer, but under our environmental certificate we could have gone to our wells Oct. 15.

“We asked the court if we could do that and apparently yesterday they said ‘No.’”

No boil-water advisories happened this summer during Bannon’s use, Walker added.

“They tend to occur during heavy winter rainstorms. “We test every few days on Bannon Creek, in conjunction with the Vancouver Island Health Authority.”

Meanwhile, Wedge indicated earlier there’s an arguable case for Halalt’s ownership interest in groundwater under its reserve — and that could set precedence in treaty-resource claims by B.C.’s Native bands, Andrews explained.

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