Mi’kmaq band wins legal battle, Alton Gas appeal returning to minister

A Nova Scotia Supreme Court judge has breathed new life into a First Nation's fight to block the Alton natural gas project.
A Nova Scotia Supreme Court judge has breathed new life into a First Nation's fight to block the Alton natural gas project. THE CANADIAN PRESS/Andrew Vaughan

A Nova Scotia Supreme Court judge has breathed new life into a First Nation’s fight to block the Alton natural gas project.

READ MORE: Nova Scotia Crown lawyer in Alton Gas appeal removed from the case: minister

In January 2016, the province approved an underground natural gas storage facility after scientific assessments and consultations with First Nations communities were conducted. The facility is under construction next to the Shubenacadie River on Riverside Road and would see gas stored in underground salt caverns.

But a month later, groups were protesting the project and several appeals were filed claiming there were no proper consultations or considerations made on the environmental impacts. Most of these appeals were dismissed by Environment Minister Margaret Miller, prompting the Sipekne’katik First Nation to appeal the decision.

On Monday, Justice Suzanne Hood ruled that the minister’s decision was “not procedurally fair” as documents were not provided to the group preventing them from conducting a proper appeal.

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READ MORE: Nova Scotia premier to apologize to Mi’kmaq for ‘conquered’ people law brief

“I conclude Sikekne’katik should be 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,” Hood said in her written decision.

The First Nation band, according to Hood, was not provided with information in an interim report written by environmental project lead Glen Warner that was provided to the environment minister. The report included information by the Office of Aboriginal Affairs that “contradicted Sipekne’katik’s position on consultation and criticized its conduct.”

“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,” Hood wrote.

Cheryl Maloney, a former Indian Brook councillor who helped organized protests against the project, welcomed the court’s decision calling it a “good day.”

“We knew the appeal process wasn’t being done correctly,” said Maloney.

But Maloney expressed disappointment the judge didn’t address the government’s duty to consult the Mi’kmaq.

“Those questions are still going to be unanswered for projects and developments in Nova Scotia and they are still going to be tested,” she said.

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In her ruling, the judge said that by sending the matter back to Miller, “it is unnecessary for me to deal with the issue of consultation.”

The issue of the province’s duty to consult proved controversial during the court hearing last November. Mi’kmaq groups expressed outrage when a Justice Department lawyer presented a legal brief that argued the province’s obligation extended only to “unconquered people.”

Premier Stephen McNeil later issued an apology, saying the brief didn’t represent the province’s position and government lawyer Alex Cameron was removed from the case. The offensive section of the brief was also removed from the government’s argument.

A stay was also requested by the Sipekne’katik of the Industrial Approval. However, Hood said in her decision she did not have the authority to issue a stay “while the matter is subject to appeal to the Minister.”

READ MORE: Mi’kmaq protesters move away from Alton Gas construction site entrance

In May, when the First Nation band launched its appeal it argued the brine that would be put into the river could endanger the fish population. The government, however, argued in a release that the terms and conditions for the project’s approval had considered the potential impacts and put in place measures “to prevent adverse effects” to the river.

A news release late Monday afternoon by Alton Natural Gas Storage LP, which manages the project, said the company “respects the decision of the court.”

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“[Alton] will work constructively with the Government of Nova Scotia and Sipekne’katik First Nation to understand next steps,” the statement reads. “We remain committed to the project and to working closely with members of the Mi’kmaq community regarding environmental protection and community benefits.”

Alton said as a stay was not issued, the Industrial Approval remains in effect, but it is committed “to ongoing, safe dialogue with all stakeholders.”

Protests have been conducted near the Alton Gas site, including Mi’kmaq protesters blocking the entrance to a construction site near the proposed gas storage caverns in September.

– With files from Keith Doucette, The Canadian Press