A lawyer for the Province of Nova Scotia says the Sipekne’katik First Nation has no one but itself to blame when it argues there was “inadequate consultation” with the government over the Alton Gas decision.
The First Nation opposes the development of natural gas storage caverns at Alton, a $130 million project that was approved by Nova Scotia Environment Minister Margaret Miller in 2016. That approval will allow Alton Gas to flush brine into the Shubenacadie River after hollowing out salt caverns. The caverns will then be used to store natural gas underground.
Sipekne’katik has appealed Miller’s approval to the courts, and it is the subject of a hearing now before the Court. Consultation is the key issue in the appeal, which is being heard by Nova Scotia Supreme Court Justice Frank Edwards.
Over an 18-month consultation process between August 2014 and January 2016, Sipekne’katik expressed concerns about how this development could impact its established aboriginal rights to fish the river and its “asserted” but unproven claim to title of the watershed. The First Nation now argues the province failed in its duty to consult adequately around these issues and that “error” is so significant that Justice Edwards must set aside the approval of the Alton Gas Storage Project.
The province’s lawyer Sean Foreman responded to that argument by blaming the First Nation. “The alleged failure of consultations are the result of its own conduct during that time period,” Foreman told the court. “The First Nation may oppose the project but it cannot strategically frustrate the process of consultation.”
Foreman provided several examples where Sipekne’katik under Chief Rufus Copage appeared to take “contradictory positions.”
Foreman produced correspondence between Chief Copage and the Office of Aboriginal Affairs that showed in June 2015, the chief said the band would no longer consult with Alton Gas but instead speak only with the province. Seven months later, Copage wrote Premier McNeil demanding “consultations and extensive engagement” with Alton Gas.
After seven years of studies of the fish in the river, there was a consultation process involving the Kwilmu’kw Maw-klusuaqn Negotiation Office (KMKNO, an organization that works on behalf of the Assembly of Mi’kmaw Chiefs, including Sipekne’katik) and the province. KMKNO pushed for an independent review of the science behind the Alton Gas project.
KMKNO hired the environmental consulting firm Conestoga-Rovers to conduct that scientific analysis, which eventually led Alton Gas and the province to make changes in the type of environmental monitoring required for Alton Gas.
During that period, the Sipekne’katik Band Council voted not to participate in those discussions but did not notify the province it was withdrawing. Yesterday, lawyer Sean Foreman quoted from a news release issued by the KMKNO Assembly on January 22, 2016 — two days after the province granted Alton approval — to support the province’s argument the consultation was meaningful and Sipekne’katik was frustrating the process.
“We saw that changes were made during the (consultation) process to the project’s design and operation, such as the shutdown during the spawning cycle of the fish,” said Chief Paul Prosper in the news release from KMKNO. “These were significant accommodations. Sipekne’katik made a decision to stop responding to the province and the proponent [Alton Gas]. This does not mean consultation did not occur. A lack of consultation could be interpreted as having no concerns. The decision of the Sipekne’katik Chief and Council not to respond was irresponsible.”
Foreman noted one of the Band’s grounds for appealing the Minister’s initial approval of the project — which she re-confirmed in April 2019 following an earlier court decision — was that it took too long to reach. Foreman pointed to correspondence in 2017 between the Sipekne’katik, Alton Gas, and the province.
The letters clearly show the Band and the company had asked then-Environment Minister Iain Rankin to delay making a decision for as long as seven months while Alton and Sipekne’katik attempted to negotiate an economic benefits agreement. Two of the proposed benefits included a land-based aquaculture operation and a renewable energy project Alton would finance if the Band would quit taking the company to court. Those negotiations did not go anywhere.
“The record before the court is consistent with deep and meaningful consultations,” argued Foreman, “and resulted in accommodations that recognized aboriginal treaty rights. The appeal must be dismissed.”
In its written brief to the court, Alton Natural Gas Storage Project says “the Minister’s Decision was reasonable, as was the extensive consultation process that the Minister reviewed.” Alton lawyer Robert Grant read from a Federal Court of Appeal decision involving the Haida Nation and Province of British Columbia:
The consultation process does not dictate a particular substantive outcome. Thus, the consultation process does not give Aboriginal groups a veto over what can be done with land pending final proof of their claim. Nor does consultation equate to a duty to agree; rather, what is required is a commitment to a meaningful process of consultation. Put another way, perfect satisfaction is not required. The question to be answered is whether the regulatory scheme, when viewed as a whole, accommodates the Aboriginal right in question.
The Federal Appeal Court decision said characteristics of “meaningful” consultation must also include “good faith” and two-way dialogue.
Justice Edwards has reserved his decision on whether Environment Minister Margaret Miller erred in approving the Alton Gas Storage Project because consultation with the Sipekne’katik First Nation was insufficient.
Meanwhile, no brining activity has taken place near the Shubenacadie River while the company waits for a new federal regulation that would permit Alton to flush salt into the river under strict environmental monitoring conditions around salinity (not to exceed the river’s normal range) and avoidance during the 24-day spawning cycle of the striped bass.