First Nation was 'uncooperative' in Alton Gas consultation, says lawyer for province

A lawyer for the Nova Scotia government says the province upheld its duty to consult with the Sipekne'katik First Nation on a controversial natural gas storage facility, and any perceived failure is the result of an "uncooperative" approach from the band.

Department of Justice lawyer Sean Foreman presented arguments Wednesday in a judicial review hearing at Nova Scotia Supreme Court in Halifax. The hearing started Tuesday with arguments from Sipekne'katik.

The focus of the judicial review is the Crown's duty to consult with Indigenous people on matters that could affect their treaty and Aboriginal rights.

Foreman said there was "deep and meaningful" consultation between the province and Sipekne'katik on the Alton Gas project for 18 months, starting in mid-2014 and ending in December 2015 — one month before the province granted industrial approval to the project.

Alton Gas, a subsidiary of Calgary-based energy company AltaGas, has plans to take water from the Shubenacadie River to flush out underground salt deposits, creating storage caverns for up to 10 billion cubic feet of natural gas.

The river water and salt, mixed into a brine, would be reintroduced to the tidal river over the course of two to three years.

Since the industrial approval was granted in 2016, Sipekne'katik has been appealing the decision. This is the second time the appeal has been reviewed in the province's high court.

The first Supreme Court justice to review the decision found some procedural unfairness in the consultation process. Following that 2017 ruling, Environment Minister Margaret Miller amended the industrial approval but ultimately upheld her decision.

With the case under review again, Sipekne'katik is asking the court to set aside Miller's 2016 decision and direct the province to re-engage with the First Nation band before reconsidering Alton Gas's proposal. Sipekne'katik lawyer Ray Larkin suggested a 60-day consultation period.

On Tuesday, Larkin said Miller's ruling was legally flawed because she didn't assess what level of consultation was required. Larkin argued Sipekne'katik's Aboriginal and treaty rights warrant "deep" consultation.

Foreman countered there was no legal error, pointing to correspondence throughout the 2014-15 consultation period that he said showed the province engaging in the highest level of consultation. He said accommodations, such as additional scientific reviews of the Alton Gas project, are evidence of "deep" consultation.

Province asks court for dismissal 

Foreman read from a 2014 letter addressed to the premier and signed by Rufus Copage, who was then the elected chief of Sipekne'katik. He quoted Copage as saying the band wished to "express its strong opposition" to the Alton Gas project.

Foreman said that because of that opposition, Sipekne'katik tried to "strategically frustrate" the Alton Gas proposal.

Foreman concluded his arguments by saying the court should dismiss Sipekne'katik's appeal.

On Wednesday, Larkin said parts of Copage's letter could be misunderstood out of context, but the band's opposition wasn't specific to the project. Rather, the opposition was based on the perceived inadequacy of the consultation process.

Aboriginal title rights

A lawyer for Alton Gas, Robert Grant, also delivered arguments in court Wednesday. He picked up on part of Larkin's argument that Sipekne'katik has Aboriginal title rights to the Shubenacadie River and the lands around the Alton Gas site.

Grant argued that although the Aboriginal title claim hasn't been legally established, Miller still granted consideration to the claim in her industrial approval decision.

Grant highlighted a condition of the industrial approval — which was added in 2019 — that requires Alton Gas to develop a communication plan with the band. He said that condition aligns with the Aboriginal title claim.

Grant, like Foreman, suggested the appeal be dismissed. He said the Alton Gas project has already been delayed enough since it received its first environmental approval from the province in 2007, and should not be set back another 60 days for additional consultation.

The hearing closed Wednesday afternoon and Justice Frank Edwards reserved his decision. He said it would likely take him a couple of months to issue a ruling.