In March of 2010, Halalt carried out a protest over the aquifer under their reserve that was going to be utilized by the District of North Cowichan. Halalt felt strongly enough over the issue that they had brought the issue to court and last week got their ruling that they were right and they had not been consulted. A good victory for Halalt and my warmest congratulations to their First Nation. For the decisions go to: http://www.courts.gov.bc.ca/jdb-txt/SC/11/09/2011BCSC0945.htm
A substantial part of the Chemainus aquifer lies beneath Indian Reserve #2 as well the Chemainus river flows through the same reserve. Halalt has used the river and acquifer for the exercise of many of their rights including accessing a variety of fish, and is central to their spiritual, cultural and economic lives. The Chemainus river and aquifer are intricately interconnected and it is not adequately understood how they are connected and affected by the flows of one another. Several experts agreed that this was the case.
The District of North Cowichan had applied for a certificate under the Environmental Assessment to use the acquifer and had twice revised the project terms. The first project terms had been rejected by the Environmental Assessment Office (EAO). The last application was to use two wells alternatively between October 15-June 15th and take out 75 l/s of water. Then they would use it as well for summer emergencies. Halalt had never been told the first application had been rejected, nor consulted on the second application.
The EAO issued the certificate for what was asked for but did not include Halalt in any monitoring and gave the District and Vancouver Health Authority the discretion to use whatever volume they wanted for summer emergencies.
What did the court find?
1. That the project as was proposed and now built, has the potential to significantly and adversely affect Halalt’s interests.
2. The court determined that Halalt has an arguable case for a proprietary interest in the groundwater of the Chemainus acquifer. The court made it clear that it was not being asked to rule on the ownership of the water but only on the prima facie strength of Halalt’s claims. The court felt that when the lands were transferred from the province to the federal government for the reserve, it included the water in the aquifer and provincial law on water did not give them the authority to do what they want.
3. Halalt has a good strength of claim and the Province had a duty to engage in deep consultation with Halalt.
4. The consultation process that went on with the Halalat was not deep consultation. The EAO failed to consider and consult on the impact of year-round operation of the well field.
5. Accommodation cannot be considered removing parts of a project from the environmental assessment process that have been rejected by the EAO for environmental reasons.
6. EAO did not undertake a proper strength of title assessment of Halalt and did not do the deep consultation required by the strength of their title.
7. The province did not accommodate Halalt in any way and did not even discuss accommodation with Halalt. In court the province tried to argue that changing the terms of the project after the first application was accommodation and then truncating the EA process was in fact consultation . The court rejected all of that and said that the accommodations alleged by the province were not responsive to concerns of Halalt and in fact some of the measures were unfavourable to Halalt. For example Halalt was given no role in the monitoring program and would not know what adverse affects were occurring to the aquifer and river.
8. The court explored whether money could be considered an accommodation. BC had argued that aboriginal groups may have a claim for financial compensation for infringement of proven rights and title only where the infringement of proven property interest has an economic component. Interestingly enough BC further argued that money could not be an accommodation in these pre-proof claims because compensation does not meet the objective of preserving asserted aboriginal rights and title. The court rejected the provinces arguments and said there was no rule or principle of law that suggest that financial compensation as a form of accommodation in pre-proof circumstances is not available to First Nations.
9. A basic principle in Haida said that there was a spectrum of accommodation measures is available where aboriginal claims are yet to be proven. Haida had a strong prima facie case for title and financial compensation was accepted by the court as a potentially appropriate interim measure. The Haida case had no restriction on the spectrum of accommodations available to the parties and neither do the Halalt. Financial compensation could be an accommodation used by Halalt and BC in this case.
This case is interesting in that it shows that the province of BC still does not know how to consult properly with First Nations. The case law on consultation has only grown since Delgamuukw and Haida. The legal principles are well known to the government, it is just that they fail in implementation. The court sets it out in a simple manner at paragraph 89:
“I take from the foregoing that the Crown must correctly determine the extent or scope of its duty to consult, and must then engage in consultation that is adequate in the circumstances. The outcome of the consultation process (that is, the accommodation) must fall within the range of reasonable outcomes in the circumstances. “(emphasis added)
The court in Halalt refers to the Hupacasath case at paragraph 63 and sets out a three part test that has been established through all the case law. Those 3 steps are:
1) Did the Crown have knowledge of a potential Aboriginal claim or right? In the Halalt case the Crown did know due to location of reserve and involvement in treaty process and other involvement with the Nation.
(2) Did the Crown’s contemplated conduct have the potential to adversely affect the claim or right? In Halalt this had already been acknowledged after 1st modification of proposal-impact right to fish, gather plants and ceremonial bathing.
(3) What was the scope and content of the duty to consult and accommodate in the circumstances of the particular case, and was that duty adequately met? Determination of the third question requires (a) a preliminary assessment of the strength of the claim and (b) consideration of the seriousness of the potentially adverse effect.
It was in the third step that the Crown fell down. They felt that they had done deep consultation. They also felt that the certificate they issued would cover the potential effects of the withdrawal of water from the aquifer and was reasonable accommodation for the adverse effects.
Obviously, the Crown does not understand what deep consultation is or proper accommodation. The courts have been very clearly that the duty of the Crown is to deal with every concern raised by the First Nation. There may not be agreement on how that is handled but the Crown must do so.
In this case, it was a very expensive mistake. The District has built the project that cost around $6 million. The certificate has now been stayed and the District cannot use their equipment and extract water from the aquifer until the concerns of the Halalt are reached.
I am not sure when the Government of BC will understand the process of consultation but it is very costly and time consuming for First Nations to go to court to get this kind of order and declaration that the government did not consult properly. I am sure there are many First Nations out there that would like to bring similar cases on non consultation but do not have the money. Most of the case law on consultation comes out of BC and the Province had better heed the work of the court or there will be even costlier mistakes made to the detriment of First Nations rights and title. The Crown should also start listening to First Nations when they say they have not been consulted as First Nations are the experts in consultation these days and they are not just saying they haven’t been consulted, they know they haven’t. I entitled this blog when will the province ever learn and my only answer, they better learn very quickly before any more damage is done in their relationships with First Nations, companies and local governments. How many times can the BC Government have their hands slapped before there is change and at what point should BC First Nations Leadership take action to call the BC Government to task and to alter their way of doing business?