Supreme Court Of British Columbia Stays All Activity Under Environmental Assessment Certificate, Finding The Province Failed To Discharge Its Duty To Consult

Overview

On July 13, 2011, the Supreme Court of British Columbia issued a decision in Halalt First Nation v. British Columbia (Environment), 2011 BCSC 945. Madam Justice Wedge allowed a challenge by the Halalt First Nation (the "Halalt) to an environmental assessment certificate issued to the District of Cowichan (the "District") on the basis that the Province failed to discharge its duty to consult the Halalt and accommodate its asserted interests.

Facts

The Halalt challenged the environmental assessment certificate issued for a project known as the Chemainus Wells Project (the "Project"). The Project, as originally designed, involved the construction and operation of a well field adjacent to the Halalt's Reserve to extract groundwater from the Chemainus Aquifer. It was intended to replace the surface water supply system with a groundwater supply in order to provide a secure and reliable year-round source of drinking water to Chemainus.

The environmental assessment was lengthy and complex, exceeding the statutory timeframe by over five years. The Project as originally proposed, and throughout much of the environmental assessment process, consisted of three groundwater extraction wells operating simultaneously year round. Tests and studies conducted during the environmental assessment led experts to conclude that groundwater extraction could reduce river flows and have significant adverse effects on fish and fish habitat during the drier summer months. As a result, the scope of the Project was narrowed to the operation of one well during only the winter months, although it included the ability to apply to remove restrictions on summer groundwater extraction if future testing demonstrated that the adverse effects could be mitigated. The Halalt was not consulted about the proposed modifications to the scope of the Project before they were made.

The Province acknowledged that it owed a duty to consult with the Halalt in the course of the environmental assessment, and seek to accommodate potential impacts to its asserted Aboriginal rights and title in the Project area. The Province took the position that the Environmental Assessment Office (the "EAO") engaged in deep consultation with the Halalt during the environmental assessment and that the modification of the Project constituted reasonable accommodation of the Halalt's interests by reducing the amount of groundwater extraction and restricting the months of the year during which extraction...