How much consultation is enough when it comes to approving development on land where First Nations claim — but have not received — title to Crown land? That’s one of the thorny questions at the centre of the Sipekne’katik First Nation’s appeal of a decision by the Nova Scotia Minister of Environment which gave the green light to the Alton Natural Gas Storage Project four years ago.
It’s a high-profile case magnified by the paralysis of freight and passenger rail services across the country due to blockades in solidarity with the Hereditary Chiefs of the Wet’suwet’en. They oppose the routing of a pipeline through unceded territory in British Columbia.
In Halifax yesterday, there were no protestors or demonstrations at the Law Courts although the lawyers representing Alton Gas arrived accompanied by a plainclothes security guard.
The appeal before Nova Scotia Supreme Court Justice Frank Edwards is from the the Sipekne’katik First Nation, which represents 2,700 Mi’kmaw people in the Indian Brook area. It argues the approval granted Alton to hollow out salt caverns and flush the resulting brine in the Shubenacadie River should be quashed because Environment Minister Margaret Miller failed to carry out adequate consultation with Sipekne’katik.
The First Nation’s lawyer Ray Larkin argued that while the consultation through meetings and correspondence over a two year period successfully canvassed environmental issues such as the impact on fish to which the Mi’kmaq have a treaty and constitutionally protected right, the minister “erred” in her decision by failing to discuss the Sipekne’katik’s asserted aboriginal right to the watershed area where the brine is supposed to enter the river.
Larkin argued that while the province wasn’t required to settle the land claim issue, the province had an obligation to at least discuss it (and potential financial compensation) as a result of a Supreme Court of Canada decision which describes what constitutes “deep” or meaningful consultation on aboriginal issues. Larkin argued this was a significant error on which Judge Edwards should act to void the minister’s approval and order a new 60-day consultation period between the First Nation and the province before Alton Gas Storage can re-apply.
After the first day of the two day court hearing, Larkin told reporters he sees parallels between this case and the tensions playing out in British Columbia and across Canada.
“Obviously, if you did the consultation process properly, you could avoid some of the social conflict that we’ve been seeing,” said Larkin. “And the feeling by aboriginal people that the only way they can defend their interest is to blockade or to prevent other people engaging in other activity they want to engage in. One would hope the process of reconciliation would be fostered by consultation so that those measures wouldn’t be necessary. But these are difficult problems.”
In response, Nova Scotia Justice Department lawyer Sean Foreman said the while the province has no dispute with the “duty to consult” First Nations, he asked Judge Edwards not to focus narrowly on the words used to describe those consultations but the actual content of what was talked about with the Sipekne’katik and Assembly of Nova Scotia Mi’kmaq Chiefs.
“I would submit any objective holistic review of the record — and not a treasure hunt looking for an error — will show the consultation process met the Supreme Court of Canada’s definition of what a deep consultation is,” argued Foreman.
Foreman contended the Environment Minister made “no error” by not engaging with Sipekne’katik on their aboriginal claim to the watershed land beside the Shubenacade River. Larkin had suggested this was no accident due to the embarrassment and furor stirred up by former Justice Dept lawyer Alex Cameron during the Band’s first appeal of the Alton approval. Cameron had argued the Crown had no duty to consult because the Mik’maq were “a conquered people” with no right to aboriginal title in this province.
Foreman blew off Larkin’s suggestion and termed Cameron’s arguments “irrelevant” to this second appeal of the minister’s decision. “No error” took place on the part of Minister Miller, Foreman said, because “under the law, Nova Scotia does not have to decide whether Sipekne’katik has aboriginal title to the banks of the Shubenacadie River.” It’s still an open question, he said, yet to be decided by the courts.
It’s a question that doesn’t have to be resolved, Larkin countered, but a question that needed to be raised. The judge will have to decide. There are 12 volumes of evidence in a case that has dragged on more than four years. Lawyers for the province and for Alton Gas will continue making their arguments today.
The gas storage project cannot proceed until Environment Climate Change Canada passes a regulation that will allow discharge of the brine under strict conditions to protect fish.
Meanwhile, the Supreme Court of Canada is still considering a request by the McNeil government to consider its appeal of a decision by Nova Scotia’s top court ordering it to make public the correspondence between the province and its former lawyer Alex Cameron. Cameron is suing the province for defamation after the premier and Justice minister accused him of making unauthorized legal arguments during Sipekne’katik’s first appeal of the Alton approval in 2016.
What is an aboriginal title?
“In Nova Scotia, the British crown asserted sovereignty in 1713. With the Treaty of Paris, they got mainland Nova Scotia. And when they asserted sovereignty, the only people apart from a few French who lived down in Port Royale, were the Mi’kmaq people who had lived here for millennia and who had control of the land, and the resources, and who had a system of governance,” explained Ray Larkin to journalists following the court session.
“So, what is required in the legal process we are involved in here is finding reconciliation between those rights that existed and haven’t been taken away and the legal system that we have in place which doesn’t actually take into account those things. It’s a process of reconciliation and respect.”
Courts in Nova Scotia have not established that Mi’kmaq have “title” or ownership to crown land although groups such as Water Protectors and the Grassroots Grandmothers have “asserted” or claimed it is an aboriginal right.
What Canadian courts have done is confirm a Treaty right to fish and to establish through the Canadian Charter an aboriginal right to fish and hunt to earn a moderate livelihood. That decision resulted from a decades-old court case involving Donald Marshall Junior, after he was arrested for eel-fishing.