Sipekne'katik v Nova Scotia (Minister of Environment), 2016 NSSC 260
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 section 38 of 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 Sipekne’katik v Nova Scotia (Environment), 2016 NSSC 178 (CanLII), 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. This request was denied.
In all of these legal proceedings, Sipekne’katik First Nation, Alton Gas, and the Minister of Environment had submitted affidavits as evidence. In the current case, Sipekne’katik First Nation asked the Court to allow new affidavits from each party to be submitted as evidence for the judicial review proceeding in which it was involved. The issue was that section 38 of the Environment Act, under which Sipekne’katik had initiated the judicial review proceeding, said that no new evidence could be brought during an appeal. However, there was a common law (court-made law) exception to this rule. In Mr. Shredding Waste Management Ltd v New Brunswick (Minister of Environment and Local Government), 2004 NBCA 69 (CanLII), the court decided that there were four reasons a court could accept new evidence in a section 38 appeal. These reasons were 1) lack of jurisdiction; 2) reasonable apprehension of bias; 3) breach of procedural fairness and natural justice; and 4) fraud.
The main issue the Court focused on was whether there had been a breach of procedural fairness and natural justice. Before issuing the Industrial Approval, the Crown had a duty to consult with Indigenous communities that would be affected by Alton Gas’s project and to accommodate the interests of these communities based on the honour of the Crown. Sipekne’katik First Nation argued that the Crown had not adequately consulted with or accommodated it before issuing the Industrial Approval. It argued that this breached procedural fairness and natural justice because in failing to adequately consult and accommodate Sipekne’katik First Nation the Crown had not acted in accordance with its duty to act honourably in its interactions with Indigenous peoples. Sipekne’katik First Nation argued that new evidence should be accepted to offset this breach of procedural fairness and natural justice.
The Court accepted Sipekne’katik First Nation’s argument. It allowed the affidavits to be submitted.
A related matter was later heard in Sipekne'katik v Nova Scotia (Environment), 2017 NSSC 23 (CanLII).
View the Decision on CanLII: https://www.canlii.org/en/ns/nssc/doc/2016/2016nssc260/2016nssc260.html
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