An aerial view of Mînî Thnî on Îyârhe Nakoda First Nation in April.Matthew Thompson/Rocky Mountain Outlook File Photo

Intervenors at a two-day Environmental Appeals Board hearing argued against issuing a water licence to draw 6,205 cubic metres of water per year from a well for a 44-lot luxury residential development in the MD of Bighorn bordering Îyârhe Nakoda First Nation.

Stoney Nakoda Nations and its corporation Stoney Nakoda Land Management Ltd. say potential impacts to the Nation’s water supply in Mînî Thnî and projections of its future population growth have not been considered, nor have its traditional and cultural practices and territory.

“For Stoney Nakoda, cultural assessments are an important part of the duty to consult,” said Bill Snow, acting director of consultation with Stoney Tribal Administration. “Cultural assessments are conducted to ensure that impacts to land, waters and wildlife are understood, are recorded, are mitigated.”

That information is shared with community members, knowledge keepers and elders, he added.

“For this proposed water application, a cultural assessment by Stoney Nakoda has not been conducted.”

A preliminary certificate issued in November 2022 by Alberta Environment and Protected Areas allows MD of Bighorn resident and oil and gas businessman Ian MacGregor – pending a water licence issuance – to operate works and divert up to 22 cubic metres of water per day from a well located within the 263-hectare Carraig Ridge subdivision to 44 lots sandwiched between Stoney Nakoda land and adjacent to of the Summer Village of Ghost Lake.

In response, 24 appeals were received from nearby residents and the Summer Village of Ghost Lake council over concerns about groundwater supply to neighbouring areas, as well as for the ecological integrity of nearby Arkalya Springs Nature Preserve.

Stoney Nakoda intervenors were permitted to later enter the appeal citing interests of Treaty rights and having not been appropriately consulted by the province’s Aboriginal Consultation Office (ACO).

Source water development for Carraig Ridge has been ongoing since 2013. In December 2016, a pre-consultation assessment by the ACO determined no consultation was owed to the First Nation relating to water licence applications for the project area due to supporting technical reports by Waterline Resources Inc. finding no impacts to existing neighbour groundwater users, hydraulic connectivity and pumping rates.

In a letter to Alberta Environment and Protected Areas senior hydrogeologist Jianrong Wang, the office wrote it had assessed the project and “recommended no consultation pursuant to the Alberta government’s policy on consultation with First Nations on Land Natural Resource Management and guidelines on consultation with First Nations on Land Natural Resource Management.”

Sara Louden, legal counsel representing the Stoney Nakoda Nations with Calgary-based Rae and Company, argued despite the release of new technical reports since 2016, the Alberta government neither engaged in consultation with the Stoney Nakoda First Nation nor conducted a renewed assessment to determine if consultation was required.

Issues raised that directly impact the Nation, she noted, include a lack of evidence and assessment regarding the preliminary certificate’s impact on Stoney Nakoda water use and future water needs for the growing population of 6,000-plus residents. There are five identified residences nearby on individual wells which Snow said are of particular concern given proximity to the project. The potential negative impacts on plants, animals and ecosystems significant to Stoney Nakoda have also not been adequately addressed, he argued.

During the public hearing, Wang and director Craig Knaus, regulatory approvals manager with Alberta Environment and Protected Areas, presented findings from the province’s baseline reports from September and November 2023 supporting geological and hydrogeological separations between the aquifer which the well draws from and other aquifers used for sourcing water in the area.

“The sandstone aquifer WSW 7711 screened is restricted not only by the shale layers above and underneath the sandstone aquifer but also by the syncline and thrust faults,” said Wang.

There are also hydrogeological separations between the sandstone aquifer of the well and Arkayla Springs, the technical report noted, meaning it is not reserved water under the South Saskatchewan River Basin Water Management Plan and can be licenced.

“The aquifer into which the well is completed is a closed and confined aquifer and is not located in the same aquifer as those wells which supply to any of the nearby residents – residents of the Summer Village of Ghost Lake, nor to homes located on the Morley reserve,” argued Erika Gerlock, Alberta Justice counsel to Knaus at the hearing.

For Snow, water is still of primary concern. The application, which was originally made to draw 23,175 cubic metres per year when it was requested in 2014, fails to address Indigenous perspectives, he said.  

“To not acknowledge or hear or understand the voice of Indigenous perspectives is the legacy of colonization. While we are in an age of reconciliation, colonial frameworks and processes continue to drown out and silence the voices of Indigenous peoples and perspectives,” he said.

Stoney Nakoda Nations’ intervenor status was granted at the decision of the Alberta Environmental Appeals Board, an independent body which is appointed by the provincial cabinet to hear appeals under acts such as the Water Act. Board members are not employees of the ministry or any other government department.

The board asked Snow about the issuance of the preliminary certificate and if eventually a water licence was issued, how it might affect other water users and lands owned by Stoney Nakoda Management Ltd. or reserve lands.

Snow said there’s “great potential” for impact on residents and the lands. The impact, however, is unknown because the Nation has been unable to carry out assessments.

“We don’t know what those impacts are and we don’t control how the Government of Alberta chooses to consult or not on various projects,” he said. “We don’t have any control over that. So not having the consultation process addressed for this project, we don’t know what the risks are to the community, to the lands, to the waters and the wildlife.”

The Carraig Ridge land is traditional Îyârhe Nakoda territory, Snow insisted, and the project areas are located within the historic Morleyville settlement.

“There is a significant chance that there are historic and cultural sites and resources within the area that are undocumented by Alberta Culture,” Louden wrote in Stoney Nakoda Nations’ intervenor application.

Stoney Nakoda Nations noted it will not be submitting a closing argument when the board hears from appellants and the applicant in January and February. As an intervenor, it was also unable to add issues to the hearing not relating to matters raised by the appellants. 

The Environmental Appeals Board has jurisdiction under the Water Act to recommend to the minister to confirm, reverse or vary the preliminary certificate and water licence.

The board will review whether the regulatory director’s decision to issue the certificate was appropriate in accordance with requirements of the Water Act, including whether the decision adequately considers hydraulic connectivity of water well 7711 to reserved water, and whether the director’s decision adequately considered the no harm principle specifically in relation to other water users of the aquifer and harm to the environment, including Arkayla Springs.

By Jessica Lee, Local Journalism Initiative Reporter

Original Published on Dec 18, 2023 at 17:24

This item reprinted with permission from   Rocky Mountain Outlook   Canmore, Alberta

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