Lack of environmental review for water channel is 'mystifying': law prof

A University of Saskatchewan law professor says the Saskatchewan government's decision not to order an environmental assessment of the Common Ground Drainage Project is "mystifying."

U of S law professor says there's a 'strong case' for legal review of the Quill Lakes decision

A U of S law professor says the Pasqua First Nation stands a good chance of getting a court to review the Saskatchewan government's recent decision not to order an environmental review of a constroversial water diversion channel at Last Mountain Lake.

The Saskatchewan government hasn't offered enough evidence for why the proposed water diversion channel into Last Mountain Lake shouldn't undergo a rigorous review for its potential environmental impacts.

And the reasons the government has offered for skipping the review are "mystifying", says a University of Saskatchewan professor with a speciality in environmental law.

The comments come as the Pasqua First Nation consider asking the Court of Queen's Bench to judicially review the government's decision.

Jason MacLean, assistant professor at the University of Saskatchewan's College of Law (University of Saskatchewan)

If the First Nation gets its wish, a judge would force the Ministry of Environment to put the controversial project through a science-based review process to suss out whether redirecting seven million cubic metres of water from Kutawagan Lake and Pel Lake into Last Mountain Lake could produce some negative impacts.

"The government actually admits that there are potential impacts on unique, rare or endangered features of the environment, including migratory waterfowl and shorebirds," says assistant professor Jason MacLean.

"Instead the government, in a very preemptive move, simply imposed a term on the proponent that construction take place during the winter to minimize the potential [impacts]."

'Strong grounds for a judicial review'

That mitigation measure by itself should have been brainstormed and scrutinized during an environmental impact assessment, said MacLean.

Instead, all the Quill Lakes Watershed Association needs to proceed with its plans are a few pending permits from the Water Security Agency.

MacLean's says the fact the government didn't consult First Nations on its decision only further bolsters the Pasqua's prospects for success.

"I think the Pasqua have very strong grounds for a judicial review," he said.

Chief Todd Peigan has said his band will decide on Monday whether to press on with that legal option.

FSIN joins in

The Federation of Sovereign Indigenous Nations (FSIN) added its voice to the chorus of opposition Friday, saying it's worried about the lack of consultation and the channel's potential impacts on lands, water, wildlife and medicinal plants in the lower Qu'Appelle Valley region.

FSIN Chief Bobby Cameron pointed out in a news release that FSIN wanted a prior, scrapped version of the project put on hold for the same reason it and the Pasqua First Nation now want the new version halted: so that an environmental assessment can take place first.

"There are a number of First Nations who have an interest within the immediate area of Last Mountain Lake, and they should have been consulted prior to any decision being made which could potentially impact their rights," said Cameron.

No outside groups weighed in

The ministry has stood by its decision in the wake of outcry from the Pasqua, environmental groups and concerned community organizations.

Assistant deputy minister Wes Kotyk, who signed off on the decision in September, says his division was informed by the work of an expert panel made up of people "with familiarity with those projects."

No other groups besides the government and the Water Security Agency, which is a Crown corporation, are represented on that panel.

The ministry says the province's Environmental Assessment Act doesn't allow for appeals to Kotyk's decision.

But the Toronto-based lawyer recently hired by the Pasqua First Nation says he can work around that.

"No government decision is unreviewable," said Jack Coop of Fogler, Rubinoff. "It is precisely because there is no statutory right of appeal that the Pasqua may have no other option but to seek judicial review."


Guy Quenneville

Reporter at CBC Ottawa

Guy Quenneville is a reporter at CBC Ottawa. He can be reached at