A Nova Scotia Supreme Court judge has dismissed the Sipekne’katik Band’s request to delay the Alton Natural Gas Storage project until a decision is made in its court appeal of the same project.
In a written decision released Wednesday, Justice Michael Wood ruled the Sipekne’katik Band had not proven that irreparable harm to the Shubenacadie River system would happen if Alton Gas proceeded with plans to start releasing brine into the river in late August.
In his 25-page decision, Justice Wood agreed with both the lawyers for the Nova Scotia Environment Minister and Alton Natural Gas Storage LP that “Sipekne’katik must provide some evidence that it will suffer irreparable harm if a stay is not granted.”
“It is not sufficient to simply allege a breach of the duty to consult,” Justice Wood wrote.
The dismissal means that Alton Natural Gas Storage LP can move forward with its plans to release brine water into the Shubenacadie River beginning August 29, 2016.
Sipekne’katik Chief Rufus Copage, who is currently attending the Assembly of First Nation’s annual general assembly in Niagara Falls, Ont., said he was disappointed in Justice Wood’s decision.
”If there is no fish to catch, how are going to exercise our rights,” Chief Copage said. “Without natural resources, our rights have no meaning,” he added.
Chief Copage said he still has hope for the band’s upcoming appeal hearing at Nova Scotia Supreme Court in Halifax August 17-18.
“Alton respects the decision of the court,” the company stated in a news release issued Wednesday afternoon.
Alton Gas confirmed that construction at the site in Fort Ellis, N.S. will continue “with brining operations scheduled to begin later this summer in accordance with the industrial approvals,” the news release stated.
Sipekne’katik appealed Alton Gas approvals in February 2016
The Sipekne’katik has opposed the Alton Natural Gas Storage project since the fall of 2014. The band is concerned the project would negatively affect the fish habitat in the Shubenacadie River. The band is also concerned the project will infringe on its Aboriginal and treaty rights.
The Alton Gas project involves storing natural gas in underground salt caverns near the Shubenacadie River system in Colchester County. The company states that by storing natural gas underground, it will be able to provide natural gas to Nova Scotia customers at a lower cost.
The process to construct the caverns involves using water from the Shubenacadie River to flush out the salt underground. The mixture of water and salt, called brine, would be stored in holding ponds before it would be released back into the river.
Alton Natural Gas Storage LP received approval in 2013 by the Nova Scotia Utility and Review Board to construct the salt caverns.
In January, the Nova Scotia government approved the company’s plan to operate a brine storage pond and a lease to complete the dispersion channel. It also agreed to allow the company to construct a dyke on crown land.
In response, the Sipekne’katik Band filed an appeal of the approvals with the Nova Scotia Environment Minister Margaret Miller in February. Other organizations also filed appeals such as the Nova Scotia Striped Bass Association, the Shubenacadie River Commercial Fishermen’s Association, the Ecology Action Centre and the Council of Canadians.
In April, Miller dismissed all six appeals filed against the Alton gas project, including the one filed by the Sipekne’katik Band. As a result, the band filed an appeal of Miller’s decision in Nova Scotia Supreme Court as well as request for stay to halt the project until a decision on the appeal was made.
In its request for a stay, the Sipekne’katik Band stated it was concerned that the brine water would cause irreparable harm to the river’s ecosystem. In particular, it was concerned about effects the brine would have on the striped bass and salmon who use the river to spawn.
The band also alleged that the Nova Scotia government and Alton Gas did not properly consult with them before moving forward with the latest approvals for the project. The band stated it was denied natural justice because the Environment Minister made her decision based on a report that wasn’t shared with the band.
In his ruling, Justice Wood stated he was satisfied the criteria to grant a stay on the issue of consultation and duty of procedural fairness had been met. However, he stated that “the issue of irreparable harm” and whether a stay should be granted “depends upon the assessment of risk to the Shubenacadie River and fish habitat which might result if the brining operation begins before the appeal decision is issued.”
“Sipekne’katik argues that I should ignore all of the mitigation measures built into the Industrial Approval, including ongoing monitoring and risk assessment, because these were arrived at in breach of the duty to consult,” Justice Wood wrote.
“I disagree with their position,” Justice Wood wrote. “In assessing risk of harm, there is no logical reason to exclude established mitigation measures designed to reduce or avoid potential damage,” he wrote.
Justice Woods pointed out that the “mitigating measures adopted in this case were developed through a process of consultation and accommodation with another aboriginal organization, KMKNO, who would have similar interests in the welfare of the Shubenacadie River system.”
“They have also not established exceptional circumstances that would justify a stay in the absence of such harm,” Justice Wood wrote.
