Judge sides with Mi’kmaqs on NS gas storage project appeal

Province wrongly refused the band's request to review and respond to project reports.

January 31, 2017   by Keith Doucette

HALIFAX — A Mi’kmaq band has won a victory in its battle against an energy company’s plan to store natural gas in underground caverns in central Nova Scotia.

In a written decision released Jan. 30, a provincial Supreme Court judge quashed the province’s rejection of the Indian Brook band’s appeal of the plan, saying the band was denied procedural fairness.

Justice Suzanne Hood ruled the province wrongly refused the band’s request to review and respond to reports on the project by the Nova Scotia Office of Aboriginal Affairs and the Environment Department.

Indian Brook argues Alton Natural Gas Storage’s plan to flush out salt to create storage caverns near Stewiacke poses an environmental risk to the nearby Shubenacadie River.

Hood says the band was repeatedly denied access to a 30-page interim report written by provincial environment project leader Glen Warner and submitted to Environment Minister Margaret Miller on the same date she denied the band’s appeal in April 2016.

“As a result I conclude the decision of the minister should be quashed,” said Hood. “It was not procedurally fair in the circumstances of this case, in that there was a refusal to allow Sipekne’katik (Indian Brook) to have a copy of and respond to the Warner report.”

Hood said the matter has been sent back to Miller to allow the band an opportunity to review Warner’s report and material from the Office of Aboriginal Affairs “on which Warner relied.”

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.

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.

In her ruling, the judge also declined to grant the band’s request for a stay of Miller’s project approval.

“I conclude I do not have the authority to deal with a stay while the matter is subject to appeal to the minister,” wrote Hood.

In an e-mail, an Environment Department spokeswoman would only say the department would need more time to review the court decision.

“The company can continue operations at this point,” said Krista Higdon.

The controversial project was given the green light in January 2016. It had been on hold since late 2014 after Mi’kmaq protesters complained that the company had failed to consult with the local native community.

At the time of the approval, Energy Minister Michel Samson said the government believed scientific information had shown the project to be safe and that it didn’t threaten the environment.

Samson also said he was satisfied the province had fulfilled its duty to consult with the Mi’kmaq.

The project would see Alton develop salt caverns about 1,000 metres underground. The caverns would be linked by pipeline to the nearby Maritimes and Northeast pipeline.

Last January’s permits issued by the province were for the operation of a brine storage pond, for a lease of Crown land to complete the brine discharge channel, and agreement to construct a dike.

In October the company, which is a subsidiary of Calgary-based AltaGas Ltd., said it would hold off on creating the underground caverns until sometime in 2017. A decision on when work will begin has not been made.

In an e-mailed statement, Alton Gas said the court decision does not affect further project work.

“Alton respects the decision of the court and will work constructively with the government of Nova Scotia and Sipekne’katik First Nation to understand next steps. We remain committed to the project and to working closely with members of the Mi’kmaq community regarding environmental protection and community benefits.”

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