The province made a secret agreement with Northern Pulp to pay part of the cost of producing its environmental assessment documents.
Furthermore, it contractually forbade Northern Pulp from revealing any details of the agreement to the taxpayer.
“Except as required by law, regulatory or judicial authority, Northern Pulp shall keep private and confidential and not make public or divulge any information or material relative to this agreement without having first obtained the written consent of the province,” reads a clause in a 2016 funding agreement between the province and the Abercrombie Point mill.
While that original agreement only allowed for $300,000 for design and engineering costs, it was amended in September.2017 to include up to $250,000 toward the preparation of an environmental assessment. Two months later it was amended again to oblige the province to reimburse up to $8 million for design and engineering work, along with any other costs the province considered reasonable.
The mill ultimately billed the province $6 million under that agreement, but never said if any of that money went toward preparing the environmental assessment that was registered this spring.
The government couldn’t confirm by deadline Tuesday whether that happened.
The agreements were filed as evidence by Northern Pulp with the Nova Scotia Court of Appeal in a failed attempt by the province to avoid consulting the Pictou Landing First Nation on its funding of the construction of Northern Pulp’s controversial proposed new effluent treatment facility.
In a written decision released Tuesday, the court threw out the province’s appeal of a lower court’s ruling.
“Nowhere does Northern Pulp’s fresh evidence suggest it would build the new (effluent treatment facility) without the province’s funding,” reads the decision.
“... There is a distinct potential that, without the province’s contribution, Northern Pulp would decline to pay the full amount required for the new (effluent treatment facility) and would be content to sue the province for the alleged breach of the lease. Then the mill would not obtain a new industrial approval after January 30, 2020, and would close, ending the discharge of contaminants that adversely impacts (the Pictou Landing First Nation).”
Province not unbiased, decision says
The three-judge panel accepted the Pictou Landing First Nation’s reasoning that because the province has been negotiating how much the taxpayer will fund Northern Pulp’s new effluent treatment facility behind closed doors, the province was contributing to the mill’s continued operation and thereby its continued pollution of the community.
The judges also uphold the lower court’s opinion that it is reasonable to conclude the provincial government will not provide an unbiased environmental assessment of the project.
“The funding agreements say the province ‘approves’ the items of design, engineering and environmental assessment before paying Northern Pulp,” reads the decision.
“Once the province approves under the funding agreements, would there be an about-face that denies approval under the Environment Act? Likely, the contractual approval would facilitate the statutory approvals.”
The ruling points to a 1995 memorandum of understanding signed between Northern Pulp’s former owners and the province in which the government “contracted to give approvals” for a new effluent treatment facility.
Northern Pulp has stated it will answer an extensive list of questions about its proposed effluent treatment site by the end of this month. Once it does that the public has 30 days to comment and then the provincial environment minister has another 25 days to decide whether to approve the project.
Pictou Landing First Nation lawyer Brian Hebert said Tuesday the ruling provides further proof that the project should have gone for a longer federal environmental assessment.
“Our client felt quite strongly that the province had so many irons in the fire and such a large history of co-operation with the mill that they wouldn’t get an unbiased environmental assessment unless it was federal,” said Hebert.
But Trudeau’s Liberal government has repeatedly punted the decision down the field on whether it would demand the more time-consuming federal assessment.
A Chronicle Herald freedom of information request showed that the federal government received a recommendation from the Canadian Environmental Assessment Agency this spring on whether it should take over responsibility from the province. But the recommendation itself was redacted.
Central Nova MP Sean Fraser said earlier this month that the federal environment minister has since asked for a new recommendation. But the assessment agency won’t have to provide that recommendation until after the Oct. 21 federal election.