N.S. Supreme Court Hears First Nation Appeal Of Alton Gas Project
HALIFAX – The future of a Nova Scotia energy project, and a First Nation’s title claim to the land surrounding it, were in front of the Nova Scotia Supreme Court this week.
Over two days, February 18 and 19, Justice Frank Edwards heard an appeal from the Sipekne’katik First Nation, which is appealing a January 2016 decision by the Nova Scotia government that would let Alton Gas create underground natural gas storage near the Shubenacadie River, in Colchester County.
The “industrial approval” accompanying the decision gave Alton the green light to start a project to store as much as 10 billion cubic feet of natural gas in underground caverns.
To create the storage, Alton plans to clear out underground salt deposits with water from the Shubenacadie River, eventually letting the water run back into the river.
It’s a project that Alton — which is owned by Calgary energy company AltaGas — has been working on for nearly 20 years.
The Sipekne’katik have been fighting the decision in court since it was first announced. At issue this week was whether the government properly consulted with the First Nation before Minister of Environment Margaret Miller made her decision.
‘Fundamental Error’ in Consultation
Sipekne’katik lawyer Ray Larkin argued this week that there were serious flaws in the consultation process leading up to the industrial approval and that those flaws lead to “a fundamental error” in the final decision.
He argued the entire consultation was affected by the fact that the provincial government didn’t properly consider the Sipekne’katik claim to Aboriginal title rights of the area around the proposed project.
He pointed to several correspondences he said show the government downplaying or ignoring those claims, arguing that the government never displayed any real interest in addressing them.
That, he said, means the consultations about the project never met the “deep and meaningful” standard they legally have to.
“There was no consultation on the issues of aboriginal title. And our whole case is really about there should have been,” Larkin said. “And that the failing of that process is really a failing of the deep consultation standard. Because the deep consultation standard is about having serious give and take on the aboriginal rights issues that are at stake.”
Sipekne’katik ‘Uncorporative’
Provincial government lawyer Sean Foreman, meanwhile, said the government did make every effort to have a “deep and meaningful” consultation.
He argued the issues the Sipekne’katik raised about the process were “in large part a result of its own conduct.”
Foreman laid out a case he said shows a continued effort by the Sipekne’katik to delay and “frustrate” the consultation process.
He pointed to documents he said show the Sipekne’katik was at times “uncorporative,” and was providing “contradictory” information.
He argued that while the law requires a “deep and meaningful” consultation process, it doesn’t allow First Nations a “veto” power over government decisions.
A “deep and meaningful” process, he argued, doesn’t necessarily have to mean the parties agree on everything. As long as there wasn’t a “palpable and overriding error in the substance” of the final decision, Foreman said, the decision is valid.
Decision Months Away
Alton Gas lawyer Robert Grant also made his company’s case on Wednesday.
He argued that the Sipekne’katik have never legally established any Aboriginal title claim on the land surrounding the Alton project.
However, the provincial government still took steps to ensure the Sipekne’katik’s Aboriginal title claim was addressed, including developing a communication plan with the First Nation to share information about environmental assessments.
After arguments closed, Justice Frank Edwards said he will likely reach a decision on the Sipekne’katik’s appeal within a couple of months.
The Sipekne’katik are asking for another 60 days of additional consultation, followed by a new decision from the provincial government.