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Crown — Honour of Crown — Duty to consult and accommodate Aboriginal peoples — Whether it is a legal certainty that the Province has exclusive ownership of and jurisdiction regarding all the groundwater beneath an Indian Reserve or Aboriginal title lands — Whether the scope of the Crown’s consultation must reflect the strength of both Aboriginal rights and the Aboriginal title where a First Nation asserts that both Aboriginal rights and Aboriginal title may be affected by contemplated Crown conduct.

In 2001, the District of North Cowichan proposed to install three pumps to pump ground water from the Chemainus Aquifer to avoid problems with the local surface water. The pumps would be on fee-simple land on the banks on the Chemainus River. The river runs through the reserve of the Halalt First Nation, and a substantial part of the Aquifer runs under the Halalt Indian Reserve. The Halalt were engaged in treaty negotiations with Canada and British Columbia under the British Columbia Treaty Process. Their claims included freshwater resources, including groundwater. Funding for the Project was subject to approval under provincial and federal environmental assessment review processes. The Project took three forms over the course of the environmental assessment. The Halalt had no input in defining the Project, and they had strong objections to it. The Project was amended twice. The final, approved, version only involved one well operating during the winter months. Despite this, the District continued to describe the Project as including pumping for emergency and testing purposes.

The Working Group for the Project, to which the Halalt belonged, had no procedural framework, no clear mandate, no statutory authority, and was not asked for input concerning the proposals to modify the Project or narrowing the environmental assessment. It did not appear that there was an assessment of the strength of their claims. Throughout the environmental assessment process, the Halalt were not provided with information provided to other interested parties that would have informed their participation in the process. Inter alia, they were not informed of the final form of the Project before it was certified. They repeatedly indicated that they did not feel that the consultation was commensurate with the strength of their claims.

Many of the Halalt’s concerns remained outstanding when the Environmental Assessment Report was submitted, when provincial Ministers issued a Certificate for the Project, and when the federal Minister of Environment approved the Project. Construction began shortly thereafter and was completed by the spring of 2010. The Halalt filed the petition giving rise to these proceedings in early September 2009. In February and March 2010, the Halalt conducted a peaceful protest, partly in response to the District’s decision to proceed with the Project.