Sipekne’katik v Nova Scotia (Environment), 2016 NSSC 178 (CanLII)

This case was heard in the Nova Scotia Supreme Court. 

On January 20, 2016, the Minister of Environment issued Alton Natural Gas Storage LP an Industrial Approval under the Nova Scotia Environment Act. The Industrial Approval authorized Alton Gas to create a underground storage caverns for natural gas using water from the Shubenacadie River. Water would be taken from the river, used to dissolve natural salt deposits underground and hollow out storage caverns, then returned to the river as intensely salty brine. Sipekne’katik First Nation appealed the Minister’s decision to issue Alton Gas an Industrial Approval under a statutory appeal process set out in the Environment Act. The Minister dismissed this appeal. In response, Sipekne’katik First Nation initiated a judicial review proceeding before the Nova Scotia Supreme Court to challenge the reasonableness and fairness of the Minister’s decision to dismiss the appeal. 

In the current case, Sipekne’katik First Nation motioned for a stay of the Industrial Approval. Specifically, it asked the Court to pause Alton Gas’s ability to act on the Industrial Approval until the judicial review proceeding had been concluded. 

Sipekne’katik First Nation was concerned that the brining operation had the potential to cause harm to the Shubenacadie River. This was why it had appealed the decision to issue Alton Gas the Industrial Approval and why it had initiated a judicial review proceeding after this appeal was denied. Sipekne’katik First Nation argued that a stay should be ordered because it was possible that without a stay Alton Gas would begin creating the brining operation and cause harm to the river before the judicial review proceeding had concluded and Sipekne’katik First Nation been given had a chance to weigh in on the decision to issue the Industrial Approval. 

To be able to convince the Court that a stay should be ordered, Sipekne’katik First Nation had to meet certain criteria under Nova Scotia Civil Procedure Rule 7.28. These criteria were defined by the Supreme Court of Canada in RJR-MacDonald Inc v Canada (Attorney General), 1994 CanLII 117 (SCC). Sipekne’katik First Nation had to show that it was raising a serious issue and that irreparable harm would be suffered if the stay was refused. The Court also had to assess whether the harm that would be suffered if the stay was refused would be worse than the harm that would be suffered by Alton Gas if the stay was granted. If irreparable harm could not be established, it was possible that the stay could still be granted if there were exceptional circumstances for the Court to consider. 

The Court decided that Sipekne’katik First Nation could not meet these criteria. Specifically, the Court did not accept Sipekne’katik First Nation’s argument that irreparable harm was reasonably likely to be caused to the Shubenacadie River if the stay was not granted. The Court decided that it was not reasonably likely that irreparable harm would be caused to the river before the judicial review proceeding had concluded. The Court also decided that there were no exceptional circumstances in the case that would justify ordering a stay.   

Sipekne’katik First Nation’s motion for a stay was denied. 

This matter also gave rise to the proceedings in Sipekne'katik v. Nova Scotia (Minister of Environment), 2016 NSSC 260and Sipekne'katik v Nova Scotia (Environment), 2017 NSSC 23 (CanLII).

View the Decision on CanLII: https://www.canlii.org/en/ns/nssc/doc/2016/2016nssc178/2016nssc178.html

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