The Sipekne’katik flag waves at the proposed brine storage site. Photo: Tori Ball /
The Sipekne’katik flag waves at the proposed brine storage site. Photo: Tori Ball /

A Nova Scotia Supreme Court judge has quashed a decision made by Environment Minister Margaret Miller last April. The Minister rejected a First Nations appeal of her department’s decision to proceed with the controversial $320 million dollar Alton Natural Gas Storage project near Stewiacke.

The Sipekne’katik First Nation is concerned  about the potential impact on fish in the Shubenacadie River from salty water to be released into the river after carving out salt caverns  one kilometre underground to store natural gas fuel.  Although the project proposed nearly 10 years ago has received the necessary environmental permits from the Department of Fisheries and Oceans, it continues to face protests and vocal opposition from some local residents and a neighbouring First Nations community. Lawyers for the Sipekne’katik allege the band has not been properly consulted by the province.

Justice Suzanne Hood says a section in the Canadian constitution makes it clear that when aboriginal interests are affected, the authorities owe First Nations people “a higher level of procedural fairness.” Hood ruled the province did not meet that standard when one of its lawyers rejected a request from a First Nations lawyer to share or disclose hundreds of pages of information from the Office of Aboriginal Affairs supporting the government’s position that it had indeed carried out adequate consultations.

Explained Hood:

The first (document) was entitled “Summary of concerns raised in Sipekne’katik First Nation’s appeal of the Alton Gas Storage Project Industrial Approval and related media reports,” a four-page document.  The second was entitled “OAA Consultation Record of Meetings and Correspondence with Sipekne’katik First Nation on the Alton Gas Project.” It was eight pages in length and listed 107 items. The third document was entitled “OAA Chronology of Sipekne’katik First Nation Consultation Funding/Process Development.” It was a four-page document listing 48 items.

The first report was written by Greg Warner, a lawyer and senior policy analyst for the provincial Department of Environment. That report is referred to in Hood’s decision as “the Warner report.”

Lawyers for the Sipekne’katik First Nation argued they should be permitted to know the basis of the government’s case. Hood ruled the government’s failure to provide the band with that information constituted “procedural unfairness,” which invalidated the minster’s decision to reject the band’s appeal of the Alton Project’s approval.

“It is this material that Sipekne’katik did not have as well as the Warner report. As a result, I conclude the decision of the Minister should be quashed. It was not procedurally fair in the circumstances of this case,” wrote Hood.

By declaring the Minister’s decision procedurally unfair, the judge noted she was ruling only on the process which led up to the decision and not on the substance or fairness of the decision itself. She also declined to consider the issue of whether adequate consultation between the province and Indian Brook First Nations community had taken place — saying the unfairness decision made such a ruling  “unnecessary.”

That central issue blew up in the government’s face when Department of Justice lawyer Alex Cameron argued the province had no legal duty to consult because the Mi’kmaq were “a conquered people.” Premier Stephen McNeil subsequently apologized to the First Nation for what some aboriginal leaders called “a racist taunt.” McNeil said the legal argument did not reflect the government’s or his personal position. Cameron’s argument with respect to “no duty to consult” was withdrawn and he was removed from the case.

In essence, the impact of Hood’s ruling scraps the province’s previous rejection of the First Nations appeal and orders the minister to revisit the Sipekne’katik request to reconsider the decision to green light Alton Natural Gas Storage. At the same time, the judge refused a request by the First Nation to halt work on the project owned by AltaGas now dormant for the winter.

A smiling white woman with short silver hair wearing dark rimmed glasses and a bright blue blazer.

Jennifer Henderson

Jennifer Henderson is a freelance journalist and retired CBC News reporter.

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  1. I feel a little bit sorry for the Alton Gas Project proponents. Their science seems to be good, and they seem to have applied for and received all of the necessary permits to allow their project to go ahead. They seem to have followed the process laid out for them by the permitting departments, but still they are fighting a rearguard action.

    I think that the biggest problem that Alton Gas has is that the citizens of Nova Scotia do not believe that the provincial Department of Environment will actually protect our environment, so the reflexive attitude is to simply oppose everything so we will not have to rely on the Department of Environment. Most of us are all too familiar with our environmental challenges that seem to always be resolved in favour of big business. Boat Harbour, the Truro rendering plant, clearcutting, rivers running muddy.

    As many have pointed out, if we had a robust regulatory process that citizens could have confidence in, these large projects would not face quite the opposition they do now. Who really thinks that a stop-work order would be issued if something went wrong with the the Alton Gas brining procedures. Not me.

    1. For myself, I can’t say I can speak in an informed way to the merits or otherwise of the Alton project. But I’m opposed to it for the same reason I’m opposed to pipelines: while they may make “sense” on their own terms (safety, markets, etc), they add to the collective carbon infrastructure that is killing the planet. We need to get off fossil fuels stat, and every new pipeline or gas storage facility is a sunk cost committing ourselves to more carbon extraction.

      1. “Getting off fossil fuels” is no small matter. As a thought experiment, consider how your life would be affected if you were on a 1950’s energy budget. I grew up in the 1950’s in Dartmouth. We shovelled coal into the furnace, and the house was often cool. No thermostat to keep it at an even temperature all night. Our milk was delivered in a horse-drawn wagon. We kids always walked to school, rain or snow. My father walked to work. We had a car but we rarely drove it. Vacations were never overseas. Travel to Ontario was by train. By the late 1960’s there might have been a plane trip for the adults every other year. No home electronics. No cable TV or internet. We had a clothesline instead of a dryer. Very few home appliances.

        By the 1970’s our energy budget was probably similar to current energy budgets, but to get off fossil fuels we have to go way back. Where I now live the energy budget in the 1950’s consisted almost exclusively of muscle power, and perhaps some gasoline for a truck.

        Getting off fossil fuels will involve a major change in almost everyone’s lifestyle. No small matter.

        1. For sure. Tough task. Maybe we should just let the planet die. Fuck the children and such. Too much trouble.

          1. Or, we could start living the changes that will be necessary. Live in a small house. Heat with wood. Walk or bike to work. Drive less. Travel less. Eat local and in season. Cook real food. Store shelf stable food, not frozen. Hang the clothes to dry. Learn a useful skill (tailoring, cobblering?) and teach it to your grandchildren. Practice LESS: Less energy, less stuff, less stimulation.

            And when we do enjoy profligate energy use (as we all will ) be mindful of it.