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Sipekne’katik’s appeal of Alton Gas permit denied

Dorene Bernard, a member of the Sipekne’katik First Nation, drums following a water ceremony along the banks of the Shubenacadie River estuary near the Treaty Truck House in Fort Ellis, Colchester County, last year. Maude Barlow, Honourary Chairperson of the Council of Canadians, joined Bernard and other opponents of the Alton Gas project at the site. - Ryan Taplin
Dorene Bernard, a member of the Sipekne’katik First Nation, drums following a water ceremony along the banks of the Shubenacadie River estuary near the Treaty Truck House in Fort Ellis, Colchester County, last year. Maude Barlow, Honourary Chairperson of the Council of Canadians, joined Bernard and other opponents of the Alton Gas project at the site. - Ryan Taplin

It’s taken more than two years but the province has again upheld its industrial approval for the Alton Gas project.

“The consultations with Sipekne’katik on this industrial approval have been sufficient,” Environment Minister Margaret Miller said Monday in denying the band’s appeal of the permit approval for the second time.

“The terms and conditions in the approval are sufficient to protect the environment.”

Environment Minister Margaret Miller.
Environment Minister Margaret Miller.

The department initially issued an industrial approval on Jan. 20, 2016, to Alton Gas, a subsidiary of AltaGas, to operate a brine storage pond at the Shubenacadie River estuary site near Fort Ellis, Colchester County. The approval provided for the company to lease submerged Crown land to complete a discharge channel and an agreement to construct a dike on Crown lands. Six groups, including the Sipekne’katik band, who primarily reside in nearby Indian Brook, appealed the permit decision.

The Environment Department denied all six appeals three months later. The Sipekne’katik First Nation then took the department’s denial of the appeal to the Nova Scotia Supreme Court.

In January 2017, Justice Suzanne Hood released a decision quashing the appeal denial.

“It was not procedurally fair in circumstances of the case, in that there was a refusal to allow Sipekne’katik to have a copy of, and respond, to the Warner report,” Hood wrote at the time, alluding to a staff report that helped form the minister’s decision to deny the appeal. Hood sent it back to the minister to again consider the Sipekne’katik appeal.

Appeal possible

Raymond Larkin, the lawyer who argued the Sipekne’katik case at Supreme Court, said Monday that consultation was always the underlying question.

“Sipekne’katik has taken the position since the permit was granted that they (government) failed to adequately consult,” Larkin said. “The minister in her initial decision back a couple of years ago found that the Crown had validly consulted and now she’s issued her decision in which she reached the same conclusion a second time.

“Whether or not she’s right is something that can be challenged in the Nova Scotia Supreme Court.”

Larkin said there is a 30-day appeal period and he will talk to his client, the Sipekne’katik band, to find out what direction they want to take.

Miller said Monday that she took the opportunity to add clarity to the industrial approval this time around.

“We are now requiring the company to meet all relevant provincial, federal and municipal laws, including any future amendments to them,” Miller said. “We are also requiring that the company develop a communication plan to ensure good communication between the company and the band.

“Our federal counterparts are consulting right now on some new regulations so we know that those will also be part of the industrial approval.”

Communication should be ongoing: decision

The federal Environment Department announced last month that it was moving in to regulate the company’s plan to draw nearly 10,000 cubic metres of water daily from the tidal river estuary and push it through a 12-kilometre underground pipeline to the cavern site off Brentwood Road, near Alton. There, the water would be pumped nearly 1,000 metres underground to flush out salt to create two giant gas-storage caverns before the residual brine is pumped back to the estuary for release into the tidal river system, a gradual discharge of 1.3 million cubic metres of salt over a two- to three-year period.

Miller said she is not familiar with the level of communication that has take place between the company and the band but her decision calls for further communication, especially if there are any changes in the plan.

“It (communication) is an expected part of the industrial approval process now,” Miller said.

Before that original decision was made in 2016, I had some reservations as well. It took me looking into all the science and evidence to be assured that it wouldn’t have impact.

            - Margaret Miller, environment minister

A spokeswoman for Alton Gas said the company is reviewing the minister’s decision.

“Alton will continue to comply with all regulatory and legal requirements, including the new conditions in the minister’s decision,” Lori MacLean said in an email.

Another recent Nova Scotia Supreme Court decision also centres on the project. The court granted the company’s application for a temporary injunction on March 18 to have Dale Andrew Poulette, who lived at the company site for nearly two years, and his partner, Rachael Greenland-Smith, and others and their belongings moved away from the main gate to an 875-square-metre fenced-in protest area designated by the company.

Three women, who had taken up residence in the straw bale house built on company property by project detractors in the fall of 2017, vowed to stay the course and to spurn the enclosure that they said resembled a Second World War interment camp.

“I can’t really speak too much to what the decision was to put up that fence,” Miller said. “What I can tell you is that these ladies and many members of the Sipekne’katik band are very passionate about the river and they are afraid something is going to happen to it. Before that original decision was made in 2016, I had some reservations as well. It took me looking into all the science and evidence to be assured that it wouldn’t have impact. For me, that river is also sacred. I grew up on that river, a half a mile away. Certainly my family had daily conversations about the river, whether it was full of ice or if the fishermen were on the river, what was going on.”

Despite the self-described water protectors’ insistence that the brining process will kill fish, marine life and marine habitat, Miller said the project can only go forward if it meets safety regulations.

“The science and available evidence spoke to me and I believe there will be safeguards in place for the river,” Miller said. “They (company) made sure that the salinity levels would not exceed a certain level in that approval.

“If not, they will be out of compliance.”

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