Saturday, September 20, 2014
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Nestlé's extraction of groundwater near Hope riles First Nations

Chiefs want compensation for removal of water from their traditional territories

BY KELLY SINOSKI, VANCOUVER SUN

First Nations chiefs are calling on the province to start protecting their interests, claiming Nestlé Waters Canada extracted millions of litres of groundwater, for free, from their traditional territory without consultation or compensation.

Grand Chief Stewart Phillip, president of the Union of B.C. Indian Chiefs, says First Nations groups continue to be ignored by both provincial and federal governments despite a legal right to be consulted on all small- and large-scale resource development projects, whether it’s groundwater extraction or fracking in northeastern B.C.

“They don’t want indigenous rights and interests to stand in the way,” Phillip said. “Before even moving ahead with a plan, the law dictates that we need to be consulted at the outset. It’s not optional.

“Unfortunately, we find ourselves spending an inordinate amount of time in the courts because the provincial government refuses to meet that standard.”

The Chawathil First Nation is laying claim to 265 million litres of water Nestlé takes every year from a well in their traditional territory in Hope. They’re backed by the Union of B.C. Indian Chiefs, which is broadening the claim to get the province to consult with First Nations about water in B.C.

This is not the first time that First Nations have battled over groundwater. The Halalt First Nation asked the Supreme Court of Canada earlier this year to look at a controversial plan by North Cowichan to pump water for Chemainus from the Chemainus River’s aquifers.

That move followed a November ruling by the B.C. Court of Appeal that granted the District of North Cowichan access to the water. The Halalt asked the high court to clarify who owns the groundwater under the reserve and aboriginal lands and whether the Crown should consider aboriginal title in its consultation process.

Phillip noted the Halalt are clearly worried about their water supply and warns the Chawathil’s fight with Nestlé may reach a similar fate.

“The underlying issue is groundwater is completely unregulated and companies can come in and lay the groundwork for the privatization of fresh water,” he said. “At this point we’re saying we take issue with what’s happened and we’re serving notice.”

Groundwater remains unregulated under B.C.’s existing Water Act, which means Nestlé does not require a permit to withdraw, bottle or distribute the water that it obtained for free from First Nations land. But First Nations argue local bands should be compensated.

“It’s no different than the way business has been done in this province since Europeans first arrived, but it’s time ‘business-as-usual’ practices change, because they’re not working for our community and it’s fundamentally unlawful,” Chawathil First Nations Chief Rhonda Peters said in a news release. “We are not anti-business, but we want to see business operate in a way that respects our rights and ensures that our community is benefiting from the use of our lands and waters.”

B.C.’s environment ministry acknowledges that the province does not license or charge a rental for groundwater extractions, but has been working since 2011 on changes to the existing B.C. Water Act, which are expected to be introduced into legislation next year.

“British Columbia’s proposed Water Sustainability Act will update and replace the existing Water Act, respond to current and future pressures on water — including groundwater — and position B.C. as a leader in water stewardship,” Environment Minister Mary Polak said in the emailed statement.

But Phillip argued First Nations were not consulted on the new act and were denied a forum with the province regarding water in B.C.

But the province maintains former environment ministers have met with the First Nations Leadership Council, which includes representatives of the Union of B.C. Indian Chiefs, while Polak plans to meet with them later this fall.

John Clague, a professor in the department of earth sciences at Simon Fraser University, said the province appears to be playing catch-up with its water sustainability act and suspects that neither First Nations nor the public have been adequately consulted on the new legislation.

He suspects the province may not have realized the significance of groundwater until the issue with Nestlé arose, because there isn’t a lot of commercial extraction around B.C.

Groundwater is a particularly hot-button issue, he added, because it’s almost considered a mineral resource.

“It would be perceived by First Nations as being a resource available to them on their own lands that is being exploited illegally without them being consulted on it,” he said. “It’s a commodity that has value.

“When you begin to view anything as a salable commodity, the First Nations want to have a say in it. It’s just a little more salt in the wound as far as they’re concerned.”

John B. Challinor, director of corporate affairs for Nestlé, said this is the first he’s heard about the First Nations concerns. He maintains Nestlé bought the well from Aberfoyle Springs in 2000 and has run the company for the past 13 years, employing 75 people in the Hope community.

“I’m not aware of any discussions with the First Nations. They’ve never been in touch with me to talk about it and certainly if they felt there was some sort of legal requirement or discussion to take place, we’re always here,” Challinor said.

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