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Judge overturns approval for Alton Gas project, orders new consultations

Mi'kmaq activist Dorene Bernard walks on the shores of the Shubenacadie River, a 72-kilometre tidal river that cuts through the middle of Nova Scotia and flows into the Bay of Fundy, in Fort Ellis, N.S. on Tuesday, July 31, 2018. Alton Natural Gas Storage LP plans to build natural gas storage caverns in salt beds nearby and the company will gradually release a brine solution into the river system over a two- to three-year period. .
Mi'kmaq activist Dorene Bernard walks on the shores of the Shubenacadie River, a 72-kilometre tidal river that cuts through the middle of Nova Scotia and flows into the Bay of Fundy, in Fort Ellis, N.S. on Tuesday, July 31, 2018. Alton Natural Gas Storage LP plans to build natural gas storage caverns in salt beds nearby and the company will gradually release a brine solution into the river system over a two- to three-year period. . THE CANADIAN PRESS/Andrew Vaughan

A judge has ruled that Nova Scotia’s environment minister did not properly consult with the Sipekne’katik First Nation in approving the Alton Gas project, reversing the minister’s decision and ordering government to begin new consultations.

In a written decision released Tuesday, Justice Frank Edwards writes that the minister’s decision was not supported by the evidence.

“While there had been extensive consultations regarding the potential environmental impacts of the Project, the core issue of Aboriginal title and treaty rights was never specifically engaged,” the decision reads.

“The Minister therefore committed palpable and overriding error when she concluded that the level of consultation was appropriate.”

The judge has ordered the parties to resume consultations for 120 days, or for an agreed upon time period. Because of the COVID-19 pandemic, he said the two parties can agree upon a remote arrangement.

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In a statement a spokesperson for the Department of Environment says it will begin virtual consultations immediately.

The department did not provide an interview and did not answer questions about the project or about what other options the government may pursue.

READ MORE: Mi’kmaq community in N.S. appeals approval of Alton Gas facilities

Alton Gas plans to pump water from the Shubenacadie River to an underground site 12 kilometres away, where it will be used to flush out salt deposits and create up to 15 storage caverns.

The work to create those caverns cannot proceed at this time since the court decision overturns the industrial approval for that part of the project. A spokesperson for parent company AltaGas says regulatory and planning activity, community engagement and maintenance can continue.

Protesters have gathered at the site for several years, arguing the plan poses dangers to the traditional fisheries of the Mi’kmaq and risks harming the 73-kilometre river used by Indigenous populations for thousands of years.

The project received initial approval in 2016 and has been appealed ever since, including to the Nova Scotia Supreme Court in 2017. The judge in that case also sided with the Sipekne’katik First Nation, although she did not order a stay of the project approval.

On April 8, 2019, then-Environment Minister Margaret Miller “concluded that the consultations with Sipekne’katik First Nation were sufficient,” according to a government press release. The minister amended the industrial approval at that time, and the band appealed again.

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The case was heard in Supreme Court in February.

READ MORE: Nova Scotia court grants injunction against Mi’kmaq protester at Alton Gas site

Lawyers for the province argued that the consultations done by the minister were “at the highest end of the spectrum” with the community to ensure there wasn’t irreparable harm to treaty rights and Aboriginal title.

The lawyer for Sipekne’katik First Nation argued that the province failed to properly assess how treaty rights and Aboriginal title were affected by the project, even though the Supreme Court of Canada has established the Crown’s duty to consult Indigenous Peoples.

Justice Edwards’s decision acknowledges that “Sipekne’katik has a factually credible claim to Aboriginal title to the portion of the Shubenacadie River where the brining will occur, as well as title to the Crown dyke, which was leased to Alton Gas for the Project.”

“’Deep’ consultation obliged the Minister to look beyond the environmental issues and to assess the level of consultation that had occurred on the rights issue,” Justice Edwards wrote.

“Had she done so, she would have recognized the rights issue itself was never specifically discussed. She therefore would not have come to the conclusion that the consultation had been satisfactory, or sufficient, or appropriate.”

The decision also says the province will need to pay for Sipekne’katik’s legal costs, which have not yet been assessed.

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With files from The Canadian Press