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N.S. judge agrees with Mi'kmaq band, requires further talks on Alton Gas project

HALIFAX — A Nova Scotia judge has ruled the operators of a project to store natural gas in underground caverns must delay their project until further talks with a Mi'kmaq community are complete.
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HALIFAX — A Nova Scotia judge has ruled the operators of a project to store natural gas in underground caverns must delay their project until further talks with a Mi'kmaq community are complete.

The Sipekne'katik First Nation argued last month before Nova Scotia Supreme Court Justice Frank Edwards that Alton Gas's consultations with the community were insufficient.

In his written decision rendered Tuesday, Edwards agreed, reversing former Nova Scotia environment minister Margaret Miller's approval for the project located north of Halifax.

The decision requires the parties to resume talks for 120 days, "or for such time as the parties mutually agree," but allows for a flexible start date based on the novel coronavirus pandemic.

Edwards says the company and the band could wait until the province's chief medical officer of health declares the crisis is over, or agree on an "alternative remote arrangement."

The subsidiary of Calgary-based energy company AltaGas is proposing to pump water from the Shubenacadie River to an underground site 12 kilometres away, where it would be used to flush out salt deposits and create up to 15 storage caverns.

In a news release issued Tuesday, the company said it "remains committed to ongoing, open dialogue with the Mi’kmaq of Nova Scotia including Sipekne’katik about the Alton Project, including its environmental and safety safeguards, and the opportunities the Alton Project presents for Nova Scotians."

Ray Larkin, the lawyer for the Mi'kmaq band, had argued Miller failed to properly assess how treaty rights and Aboriginal title were affected by the project, even though the Supreme Court of Canada has established the Crown's duty to consult Indigenous Peoples.

He said the minister failed to indicate the "depth of the consultation needed."

Miller released her government's decision last April to give Alton Gas industrial approval for the project near Shubenacadie, saying Mi'kmaq communities were treated appropriately.

Sean Foreman, the lawyer for the government, argued before Edwards that the province upheld its duty to consult and any perceived failure was the result of an "unco-operative" approach from the band.

However, Edwards agreed with the lawyer for Sipeke'katik, writing the minister's decision wasn't backed by the evidence. 

"While there had been extensive consultations regarding the potential environmental impacts of the Project, the core issue of Aboriginal title and treaty rights was never specifically engaged," he wrote in the summary of his decision. 

"The Minister therefore committed palpable and overriding error when she concluded that the level of consultation was appropriate."

Miller's approval last year came after a 2017 Nova Scotia Supreme Court ruling that quashed the minister's original decision to dismiss the First Nation's appeal after she approved the project in 2016.

Justice Suzanne Hood concluded in that earlier decision that the First Nation was not supplied with the documents to mount a proper appeal, although she did not order a stay of the minister's project approval.

Since then, the company has obtained an injunction limiting protesters to a designated area of about 22 metres by 38 metres. Those who don't comply face arrest by the RCMP.

This report by The Canadian Press was first published March 24, 2020.

Michael Tutton, The Canadian Press




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