The Fort Nelson First Nation (FNFN) in northeastern British Columbia has won an important anti-fracking case before the B.C. Environmental Appeal Board against Nexen Inc., a wholly-owned subsidiary of CNOOC Limited

In B.C., all surface water is the property of the province and a license is required to divert over a certain volume.

In May 2012 Nexen was issued a Conditional Water License allowing it to divert water from North Tsea Lake to dugouts for use in hydraulic fracturing operations in the Horn River Basin. North Tsea Lake is a small, shallow lake, being about 32 acres in size and only 5.5 feet deep at its deepest point. The lake flows into the Tsea River and is within the FNFN traditional territory and the lands covered by Treaty 8. The Conditional Water License authorized the annual diversion of up to 2026 acre-feet (2.5 million cubic meters).

The License included a condition limiting daily withdrawals based on a flow-weighted extraction method that meant that water withdrawals had to be lowered when flows dropped in the Tsea River measured at a point about 3.5 miles (6 kilometers) downstream from the lake. At a certain point of low river flows, water withdrawals were to cease until flows increased.

Water flows at the measuring point on the Tsea River turned out to not be indicative of the water levels in North Tsea Lake due to beavers damming the river and backing up the water. Notably, in the summer of 2012, the lake levels dropped nearly 1.5 feet due to Nexen’s withdrawals even though flows in the River had increased. The Ministry issued an Order to Nexen requiring it to implement six remedial measures.

The FNFN appealed the decision to issue Nexen the License on the grounds that the B.C. Ministry had failed to adequately assess the potential direct and cumulative impacts on the watershed from the water withdrawals and that the B.C. Crown failed to undertake meaningful consultation with the FNFN before issuing the License.

The B.C. Environmental Appeal Board found the License to be fundamentally flawed in concept and operation. It found that the flow-weighted withdrawal method used in the License was not supported by scientific precedent, appropriate modeling or adequate field data. Further, the Ministry’s conclusions that the withdrawals would have no significant impacts on fish, riparian wildlife and their habitat was incorrect, inadequate and based on mistaken factual information and modelling. The Environmental Appeal Board also found that the Ministry failed to consult the FNFN in good faith as required by Canadian law.

The Environmental Appeal Board ordered that diversions stop and the License be cancelled once Nexen has used the water currently diverted into storage.

A copy of the Environmental Appeals Board Decision can be found:http://www.eab.gov.bc.ca/water/2012wat013c.pdf.