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ENVIRONMENTAL LEGISLATION - Approvals, licences and orders - Waters

Tuesday, October 15, 2019 @ 9:22 AM  

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Appeal by the Province from a decision finding that the Province had a duty to consult with the respondent First Nation respecting the prospective funding by the Province of a new effluent treatment facility. For over half a century, a Pulp Mill discharged fluid effluent into Boat Harbour and emissions into the air. The First Nation was a Mi’kmaw community nearby. It had long complained to the Province that the discharges were toxic. In 2015, the Province enacted the Boat Harbour Act which directed that the Mill’s existing effluent treatment facility at Boat Harbour must cease operation by January 2020. The Province owned the Boat Harbour effluent treatment facility and leased it to the Mill. To operate after January 2020, the Mill needed a new effluent treatment facility which required its own Environmental Approval. The consultation with the First Nation was confined to the physical aspects of the design, construction and operation of the proposed new effluent treatment facility. The Province had, however, confidentially discussed with the Mill whether the Province would fund the new effluent treatment facility. When the First Nation learned of these discussions and asked that consultation included the prospect of Crown funding, the Province refused. The First Nation applied for judicial review. The application judge held that the Province had a duty to consult before the Province became a lender to the Mill. Both the intervenor Mill and the First Nation sought to adduce fresh evidence.

HELD: Appeal dismissed. The fresh evidence offered by both the Mill and the First Nation were admitted except for certain affidavit exhibits that post-dated the hearing before the reviewing judge and the identifying paragraphs for those three exhibits. The evidence was relevant and reasonably could have affected the result. The application judge did not err in law by ruling that the Crown was obliged to consult with First Nation respecting the prospect of funding. The Funding Agreements reduced the likelihood of the Mill’s closure and increased the likelihood of ministerial approvals for the Mill’s continued operation. Together, those factors generated sufficient potential for adverse impact to satisfy the test for consultation. Nowhere did the Mill’s fresh evidence suggest it would build the new facility without the Province’s funding. The Province’s funding could thus contribute to maintaining the Mill’s toxic discharges after January 2020. The Funding Agreements injected their own incentives into the process of ministerial approval. The Funding Agreements reduced the likelihood that the Mill would close after January 2020 to avoid paying the full cost of a new effluent treatment facility and heightened the likelihood of ministerial approvals that were necessary for the Mill to operate after January 2020. The Funding Agreements, along with the Province’s funding that they prescribed, constituted Crown conduct with a potential for adverse impact on the First Nation by increasing the likelihood the Mill would discharge contaminants after January 2020.

Nova Scotia (Minister of Aboriginal Affairs) v. Pictou Landing First Nation, [2019] N.S.J. No. 402, Nova Scotia Court of Appeal, P. Bryson, L.L. Oland and J.E. Fichaud JJ.A., September 17, 2019. Digest No. TLD-October142019002