A Nova Scotia First Nation has won a legal victory against the provincial government and a company that wants to dump salt brine water into the Shubenacadie River.
Nova Scotia Supreme Court Justice Suzanne Hood has quashed the April 2016 decision by Environment Minister Margaret Miller to deny the appeal of the Sipekne’katik Band over the Alton Natural Gas Storage project.
In her 35-page decision released on Monday, Justice Hood ruled the band was denied procedural fairness when the provincial government refused the band’s request to review and respond to reports prepared by the Nova Scotia Office of Aboriginal Affairs and the Department of Environment.
A 30-page report called “Interim Decision Report was written by Glen Warner and submitted to the Environment Minister. The document included reports by Office of Aboriginal Affairs which outlined and summarized consultation sessions, meetings and correspondences with the Sipekne’katik Band regarding the Alton gas project.
The band’s legal team had asked the Nova Scotia Department of Justice on several occasions to see the report which was denied, Justice Hood noted.
“Sipekne’katik did not have the information that the Office of Aboriginal Affairs provided to Glen Warner which contradicted Sipekne’katik’s position on consultation and criticized its conduct,” Justice Hood wrote.
“I conclude Sipekne’katik should have been given the opportunity it sought to ‘respond to any information that [the Minister] will be considering concerning the adequacy of consultation by the Crown with Sipekne’katik concerning the Alton project,’” Justice Hood wrote.
“As a result, I conclude the decision of the Minister should be quashed. It was not procedurally fair in the circumstances of this case, in that there was a refusal to allow Sipekne’katik to have a copy of, and respond to, the Warner report,” she wrote.
The matter is therefore remitted back to the Minister to allow Sipekne’katik an opportunity to respond to the Warner report and the material from the Office of Aboriginal Affairs on which Warner relied,” Justice Hood wrote.
However, Justice Hood chose not to respond on the issue of the duty to consult. She also refused the band’s request for a stay to halt the brining until the matter is settled.
Alton gas project controversial
The Alton Natural Gas Storage Project has been a controversial one since the fall of 2014. Permits to the company were initially delayed after local residents, including community members from nearby Indian Brook First Nation, N.S. held ongoing protests against the project.
The company wants to construct underground caverns to store natural gas coming from the Maritimes and Northeast Pipeline. In order to do that, it plans to use water from the Shubenacadie River to dissolve underground salt deposits. The salt water mixture, called brine, would then be stored in a holding pond before being released into the river.
Several environmental and conservation groups joined the Sipekne’katik Band’s opposition to the project. They’re concerned about the possible harm the extra salty water may have on species that inhabit the Shubenacadie River.
In January 2016, Nova Scotia Energy Minister Michel Samson eventually issued permits to the company to operate a brine storage pond and lease crown lands for the project.
That prompted the Sipekne’katik Band and other groups to file appeals with the provincial Department of Environment. In April 2016, Minister Margaret Miller denied all of the appeals.
The Sipekne’katik Band filed an appeal of Miller’s decision to the Nova Scotia Supreme Court.
During the appeal hearing held in Halifax in November 2016, Mi’kmaw leaders became upset when the province’s lawyer, Alex Cameron, submitted a controversial defence that the Mi’kmaq were a conquered people so the province did not owe them a duty to consult.
Cameron wrote a book in 2009 called “Power with Law” in which he wrote the Supreme Court of Canada’s 1999 decision that upheld Donald Marshall, Jr.’s fishing rights to commercially fish for a moderate livelihood was wrong.
In December 2016, Nova Scotia Premier Stephen MacNeil apologized to Mi’kmaw leaders over the issue and removed Cameron from the case. The province also withdrew the controversial legal argument from its submission.
The Sipekne’katik Band is the second largest First Nation in Nova Scotia. It’s largest community is the Indian Brook First Nation near Shubenacadie, N.S.