It is a “seriously problematic” course of action for the city to pursue any path that would interfere with the treaty rights of the Snuneymuxw in regards to the Colliery dams, said Chief Doug White of the Snuneymuxw First Nation on Tuesday.
Any decisions regarding the Chase River apparently involves Douglas treaty-protected fisheries. The recent decision to rebuild the Colliery dams, rather than remove them and renatural-ize the river, came as a surprise after months of discussion, said the Snuneymuxw in a statement released last week.
As a result, the Snuneymuxw have called for the city to take a “time out” on the issue, and undertake a public, facilitated process with all stakeholders to look at alternative options.
“Any provincially-authorized action - like a permit from the Dam safety (section) - that would impact a fishery, is susceptible to being struck down by the courts as constitutionally invalid,” said White.
He cited the 1989 Claxton v. Saanichton Marina case, among others, as an example in which a provincially-granted authorization was declared “constitutionally null and void” when it became clear the construction of the marina would be detrimental to the Saanich people’s treaty-protected right to fish in the area.
Snuneymuxw staff have been in contact with both the Dam safety section and the province in the last few days, said White.
Before they issue an authorization to the City of Nanaimo to remove the dams, the ministry is making referrals to other agencies - including the Snun-eymuxw First Nation - to ask them to advise of any concerns, said Forests, Lands and Natural Resource Operations spokeswoman Vivian Thomas.
On June 10, council voted to proceed with a public tender call to remove the middle and lower Colliery dams this summer.
Thomas added that FLNRO are not involved in the tendering process, which the city presently has no plans to halt.
The city is unclear on its legal obligations to the Snuneymuxw regarding the dams.
“It isn’t clear what our relationship is, from a legal perspective, because we aren’t the Crown,” said Ian Howat, director of strategic relations for the city, who added that they have a moral responsibility, but it is not clear what their legal responsibilities are.
“I think - and I say that carefully - that it’s our full expectation that we should be getting their consent,” he added.
The impact on the environment and on fisheries are critical issues, from the city’s perspective, said Howat.
The city is also working to ensure plans are in place so that there is no negative impact, something that is “very hard to undo,” said Howat.
A political-level meeting between the city and the Snun-eymuxw regarding the future of the Colliery dams is still in the works, and has been scheduled for next week.
