UPDATED: Judge turns off Chemainus Wells tap indefinitely

Judge rules in favour of Halalt band in water dispute

Halalt Band member John August makes a point with miffed motorist Doug Estey during the Halalt's 2010 Chemainus Road blockade over North Cowichan's water-well project.

Halalt Band member John August makes a point with miffed motorist Doug Estey during the Halalt's 2010 Chemainus Road blockade over North Cowichan's water-well project.

A court ruling Wednesday means Chemainus residents probably won’t be tapping groundwater from the Chemainus Water Wells system this fall without Halalt First Nation approval.

B.C. Supreme Court Justice Catherine Wedge’s landmark 178-page ruling stops use of the wells, and supports Halalt demands for more consultation about municipal use of the Chemainus River aquifer.

She orders more talks between the Halalt and North Cowichan and the province prior to the taps being turned back on.

Chief James Thomas and North Cowichan Mayor Tom Walker were still consulting with their lawyers Thursday, and had no idea when talks would resume.

“The sooner the better,” Thomas told the News Leader Pictorial yesterday. “The municipality will be knocking on our door. This ruling changes everything.”

Walker said he respects the Halalt, and Wedge’s ruling.

However, he wouldn’t speculate about the band’s bid to essentially control well taps if it becomes concerned their use is negatively affecting folks on reserve, or fish habitat.

“I’m interested in hearing from the province and the environmental assessment office,” Walker said.

The EAO issued North Cowichan’s well permit in 2009 without properly consulting Halalt elders about their Aboriginal resource rights, according to Wedge’s ruling concerning the municipal drinking-water supply source adjacent the Halalt’s Westholme reserve.

Walker’s council now sits in the middle of talks between the province and the Halalt, while Chemainus’ aquifer access is in limbo.

“We do have some time,” he said of talks sure to occur before the fall.

North Cowichan’s $5.7-million wells are on a scheduled summer break, but had been primed to be turned again on this October.

First turned on in 2010, the wells supplied Chemainus with water during the winter, replacing an old system plagued with boil-water orders and turbidity issues.

But Thomas cites Wedge while explaining in a press release how Chemainiacs won’t be deprived of water during the court-ordered talks.

“They are currently receiving potable water from the surface water supply during the summer months under the terms of the certificate.”

It’s unclear what the province must do to satisfy the necessity of adequate consultation, or what has to happen before North Cowichan can use its wells again.

“I’m still committed to working with the Halalt on this and other issues like sewer and fire service,” said Walker.

Thomas welcomed the court’s decision.

He states his people have a strong case for Aboriginal title regarding their traditional territory on the Chemainus River.

“We’re holding the reins now. But you can’t ask for the sky.

“The number-one thing is protection of our water resource — it wasn’t about money.

“The judge said the First Nation has an arguable legal case for an ownership interest in the Chemainus aquifer, most of which underlies the reserve,” his release says.

North Cowichan council first applied for the project’s environmental certificate in 2003.

The Halalt launched legal action in September 2009, and erected peaceful roadblocks on their reserve for weeks in 2010.

After 23 days of oral hearing, legal arguments ended in November 2010.