As discussed in an earlier blog, the BC Supreme Court had ruled that Halalt had not been properly consulted by BC and put on hold a $6 million project that was built by the District of North Cowichan. BC and the District decided to appeal the decision.

North Cowichan in the interim wanted to use the water from the aquifer pending the appeal and brought an application before the Court of Appeal to do so. The Court denied the application and said North Cowichan could not use the water. The court succinctly stated that the constitutional rights of the Halalt outweighed the public right to use the water for drinking. Had there been evidence that the other water sources made the public at risk for health reasons, there may have been a different ruling. But as it was, the constitutional rights of the Halalt were more important. 

That is a good decision until there is a full hearing of the appeal that I believe will leave the Halalt in the right, the province did not fully consult the Halalt.

After the Supreme Court of BC ruling, the province and North Cowichan should have immediately sat back down at the table and began a full and proper consultation with respect to the use of the aquifer. Now, months and months have passed and North Cowichan wants to utilize a system they put millions of dollars in. Instead, they chose to use the courts to resolve a very important issue. The Mayor of North Cowichan says they want to get along with the Halalt. Going to court and forcing use of the water even though they have a court order to use the water is not a good way to build good relations. Maybe someone should tell the Mayor that.

This is very important to realize that when the government of BC or Canada does not properly consult with First Nations, it is the “third parties” who are affected. Those third parties and should be putting more pressure on the governments to engage in good faith consultations. The Supreme Court of Canada in Haida clearly ruled “the Honour of the Crown cannot be delegated.” This means that the Crown cannot ask 3rd parties to consult. Most 3rd parties realize that the Crown does not do a good job of consultation and work with the First Nations to find out their concerns, share their project information and try and address their concerns and often accommodate First Nations. They do this in the best interests of getting their project developed and one day I am sure we will see a “3rd Party” suing the Crown for leaving them their duty of consultation and accommodation.

It seems that it will still be several months before the appeal is heard and then months of waiting for the decision and the District will be needing water for the summer months when water is more scarce. Halalt’s lawyer correctly argued that if the court had allowed the District to use the water, there would have been little incentive for the province to sit down and properly consult the Halalt. I know this to be very true as in the Hupacasath v. the Minister of Forest case on the deletion of private lands from TFL 44, the court refused to put the lands back into the TFL. All negotiating power Hupacasath had was out the window. After two years of attempts at consultation and accommodation, Hupacasath had to go back to court and get an order confirming that BC had not consulted and had a court appointed mediator to intervene and get the parties to come to an agreement. Even with a mediator, it took over two years to get an offer on the table and one that in my opinion is worse than trinkets and beads.

The court of appeal decision allows Halalt to be in the position of having the ability to be a powerful player at the table in order to protect their rights. I hope this decision sends a message to the province that they cannot “cavalierly run roughshod over aboriginal rights” and they do honourable consultations with First Nations people as they try and advance their Jobs agenda and bring more mines, more industry to this province.

Halalt has been involved in the treaty process for many years. They have been looking for interim solutions as part of the Hulqu’min’um treaty group. This week, the Chief Commission Sophie Pierre came out with some very strong admonishments to the Provincial and Federal Government. As she released the BC Treaty Commission annual report she told the government, “and if we can’t do it, it’s about time we faced the obvious-it isn’t going to happen, so shut ‘er down.”

Hurray, someone was brave enough to say it! Governments of BC and Canada, let’s get serious, change your mandates and conclude more treaties, 60 of them, or let’s admit it isn’t going to happen. Let’s stop wasting people’s time and racking up treaty loans if you are not serious about reconciliation of aboriginal rights and title. Then we will continue to be in the courts like Halalt and many others because the longer terms solution just aren’t there.

First Nations are still at the table, still trying to negotiate what they want and need for their communities because they need to reconcile their rights and title while there is still some resources left. Not only that First Nations have a strong hope for their future of their communities and their members. They know they need more lands and resources and governing powers and hope to do it in a government-to-government process. They have tried many things to get the governments to conclude treaties including a common table without any success.

The Chief Commissioner sees the writing on the wall, does the governments or do they even care? Are the governments willing to move enough to resolve treaties, to come to an agreement on who owns the land, the water, and other resources and how they will be managed? Or do they want to continually be in court over shoddy consultation, compensation for past development as set out in the Rio Tinto case, and allowing uncertainty for development in BC.

You really have to wonder why governments haven’t been driven to resolve treaties when cases like Halalt come along. But we thought when Delgamuukw came down in 1997 and the Sparrow case in 1990 and Marshall in 2006 and Tsilqu’tin in 2007 that the governments would change mandates. I don’t know what will cause the governments to change their mandates, but maybe some “chilling” words of reality from the Chief Commissioner will open their minds. Hope springs eternal with First Nations but at some point when all peaceful attempts at reconciliation fail including the treaty process what next?


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