Court Action and Formal Hearings

Dredging

Objectives:

The objective in this case was to stop what WIFN considered a threat to the quality of the water in an area where it has land claims. Walpole Island took court action against the Government of Canada in response to dredging of contaminated soil and its subsequent dumping into Walpole Island territory.

Description:

In 1978, Public Works Canada implemented a dredging program to maintain navigable depths throughout the St. Clair cut-off channel for Great Lakes shipping. However, as mercury pollution from Chemical Valley was not curtailed until after 1970, the re-deposition of mercury-contaminated sediments in Walpole Island's waters became a serious issue. Testing in the 1970s confirmed the presence of high levels of mercury. The First Nation consequently proposed to the federal government the construction of three sediment containment sites on its territory (Seaway Island). The proposal was accepted and implemented. In the Fall of 1989, the people of Walpole Island learned that the site was no longer being utilized and that dredged sediments were again being dumped into open waters in Walpole Island territory. Testing of these sediments identified two highly toxic substances, both known carcinogens. It was at this point that Walpole Island undertook legal action in Federal court. Tri-partite Boundary Negotiations were suspended due to the dredging crisis, and out-of-court settlement talks were pursued.

Outcome:

In 1990, Chief and Council negotiated an out-of-court settlement which included the following provisions:



• 180-day notice to Walpole Island prior to future dredging operations; immediate notice from Canada once it learns of planned US dredging;
  
  
• Formulation of joint WI-Canada commission to review and monitor dredging;
  
  
• exchange of technical and scientific information ;
  
  
• full and consistent consultation;
  
  
• WI to have direct say in nature and timing of tests; and,
  
  
• Establishment of dispute resolution mechanism.

The manner in which Walpole Island handled the dredging scandal appears to have caught significant attention in the federal and provincial governments. In addition to suspending tripartite negotiations, Walpole Island showed that it is serious about its environment and community; it has the resolve and initiative to take on transgressors in the courts; and it has the capability to effectively force environmental issues on to the regional agenda through the Press and through political means.

Support:

Initially funded by WIFN; through out-of-court settlement legal costs were recovered