The land adjacent to the Shubenacadie River estuary is not ceded Mi’kmaq territory and Alton Gas has no business proceeding with the construction of a brining facility there, says a Sipekne’katik lawyer.
“Our argument is those lands were never ceded or sold by the Mi’kmaq people so Alton Gas has no treaty claim to those lands along the Shubenacadie River,” Michael McDonald said outside of Nova Scotia Supreme Court on Monday.
McDonald was in court to set dates for a couple of court proceedings, including charges of contempt of a court order against three Mi’kmaq women who were charged in April by the RCMP and a bigger-picture treaty and constitutional battle McDonald will wage on behalf of the Sipekne’katik Band against the company, a subsidiary of AltaGas.
McDonald intends to file for an injunction to prevent Alton Gas from continuing with any work at the 16-hectare riverside site near Fort Ellis, Colchester County, until the legal case has worked its way through the court.
“We need to have all those activities ceased,” McDonald said.
It did not appear Monday that Alton Gas has any plans to cease operations in its project, which is designed to draw nearly 10,000 cubic metres of water daily from the estuary and push it through a 12-kilometre underground pipeline to the cavern site off Brentwood Road, near Alton. There, the water will be pumped nearly 1,000 metres underground to flush out salt to create two giant gas storage caverns. The brine created by the salt dissolution would then be pumped back to the estuary for release into the river system, a gradual discharge of 1.3 million cubic metres of salt over a two- to three-year period.
“Alton sites are work sites,” the company said in a statement. “There is a court decision and a court order in place to allow for safe access by workers to these Alton work facilities near Stewiacke.
“We needed access to assess damage from flooding, and to ensure that we are responsibly maintaining the property. Alton has proceeded with this matter because of trespassing at the work site. As the matter remains before the court, we won’t provide further comment.”
The matter the company references is a Nova Scotia Supreme Court case that resulted in a March decision by Justice Gerald Moir granting a temporary injunction to order Dale Andrew Poulette, Rachael Greenland-Smith and others who had been camping out long-term near the company’s main gate to move away from the property.
“We will argue that my clients acted under Mi’kmaq law and in that case, they would not be guilty of an offence... In their belief, an honest belief, those lands were never ceded or sold by the Mi’kmaq people, so therefore, Alton Gas’s ostensible claim to those lands are false.”
- Michael McDonald, lawyer representing Madonna Bernard, Darlene Gilbert and Paula Isaac
Three women, who describe themselves as grassroots grandmothers and water protectors, refused to move from the site and they were arrested on April 10. The three — Madonna Bernard, Darlene Gilbert and Paula Isaac — were in court Monday. Their names will be added to the temporary trespassing injunction, along with the names of Poulette and Greenland-Smith, who are no longer involved.
The contempt of court case against the three women was originally set for August but has now been moved to Dec. 16 and 17. The December dates were intended to be the first of four dates to deal with the treaty and constitutional arguments but the court will hear motions for directions on that case on Oct. 28, at which time dates will be set for a Supreme Court hearing sometime in 2020.
In the meantime, McDonald will file information with the attorneys general of Nova Scotia and Canada pertaining to the treaty and constitutional argument, which are based on a 1752 Peace and Friendship Treaty and a royal proclamation of 1763.
Those treaty rights also come into play in the contempt case, McDonald said.
“We will argue that my clients acted under Mi’kmaq law and in that case, they would not be guilty of an offence,” he said. “In their belief, an honest belief, those lands were never ceded or sold by the Mi’kmaq people, so therefore, Alton Gas’s ostensible claim to those lands are false.”
Detractors of the Alton Gas project, including Sipekne’katik Band members who primarily reside near the river in Indian Brook, Hants County, say the inundation of salt will poison the fish and other marine species in the river. The company argues that the brine to be released into the river will be within the range of salinities normally experienced in the tidal river.
“With respect to work at the Alton sites, approximately $70 million has been spent to date to develop the Alton project,” the company’s statement said. “Regarding work activity in the near term, at the river site a flood damage assessment has taken place and steps to remediate the site have started.”
Outside the court building, Bernard thanked 30 or more supporters who attended Monday’s hearing “for being here today and everything that you do to protect the land for future generations.”