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ENVIRONMENTAL LEGISLATION - Approvals, licences and orders

Wednesday, March 29, 2017 @ 9:01 AM  

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Appeal by the Sipekne'katik First Nation from a decision by the Minister of the Environment dismissing its appeal from the granting of an Industrial Approval in favour of Alton Natural Gas Storage (Alton). Alton sought Approval of a brining pond as part of a larger project involving construction and operation of an underground natural gas storage facility. The underground facility would be built through solution mining using water from the Shubenacadie River. Water removed from the underground excavation would contain significant levels of dissolved salt. The brine storage pond was intended to keep the salt solution until sufficiently diluted for return to the River. Alton received an Industrial Approval for operation of the brine storage pond, subject to terms and conditions. The Minister dismissed the appellant's appeal pursuant to s. 137 of the Environment Act (Act). The appellant appealed to the Court pursuant to s. 138 of the Act. The appellant submitted that it was denied procedural fairness and that the Crown breached its duty of consultation and accommodation.

HELD: Appeal allowed. A section 138 Environment Act appeal was not a de novo hearing in which procedural fairness defects in the Minister's decision could be cured. The content of the Minister's duty of fairness was high, given the importance of the decision to the appellant in the context of the constitutional recognition of aboriginal rights, the rights affected, and the expectation of fair treatment of First Nations by government. In the specific circumstances, bearing in mind the statutory, institutional and social context, the appellant should have had the opportunity to respond to any information considered by the Minister concerning the adequacy of the Crown's consultation with respect to Alton's project. The appellant did not have certain information provided by the Office of Aboriginal Affairs to the Minister that contradicted its position regarding consultation. Therefore, the Minister's decision was not procedurally fair and was quashed. The matter was remitted to the Minister to provide the appellant an opportunity to respond to the information at issue.

Sipekne'katik v. Nova Scotia (Minister of Environment), [2017] N.S.J. No. 28, Nova Scotia Supreme Court, S.M. Hood J., January 27, 2017. Digest No. 3644-009