Union of Nova Scotia Indians v Nova Scotia (Attorney General), 1999 CanLII 1487 (NSSC)

This case was heard before the Supreme Court of Nova Scotia following the decision in Union of Nova Scotia Indians v Maritimes and Northeast Pipeline Management Ltd, 1999 CanLII 7556 (FCA).

The circumstances surrounding this decision were as follows: by an Order in Council, the Government of Nova Scotia had granted Maritimes and Northeast Pipeline Limited and Maritimes and Northeast Pipeline Limited Partnership the right to build a natural gas pipeline over provincial Crown lands. The plaintiffs, the Union of Nova Scotia Indians, the Confederacy of Mainland Mi’kmaq, and the Assembly of Nova Scotia Mi’kmaq Chiefs, brought an application for judicial review in an attempt to have the Order in Council invalidated. Their argument against the invalidity of the Order in Council included assertions of Aboriginal title, other Aboriginal rights, and treaty rights that were at stake in the provincial government's decision, as well as assertions that the provincial government had failed to fulfill its responsibilities to take the plaintiff's Aboriginal and treaty rights into account when making its decision.

In response, the Government of Nova Scotia argued that because the plaintiffs had failed to give proper notice to the Crown, as required by Nova Scotia's Proceedings Against the Crown Act, the application for judicial review should not be allowed to go forward.

The plaintiffs argued that applications for judicial review were not ordinarily the kinds of legal proceedings that would trigger the notice requirements under the Proceedings Against the Crown Act. In response, the provincial government argued that the requirements set out in the Proceedings Against the Crown Act are not attached to specific kinds of proceedings, but are instead triggered by the substance of the proceedings. According to the provincial government, because this application for judicial review involved assertions of Aboriginal title which implicated the Crown's own property rights, the notice requirements in the Proceedings Against the Crown Act were triggered.

Ultimately, the Court agreed with the provincial government's arguments and held that the application could not proceed against the Government of Nova Scotia because proper notice had not been given.

The issues raised in this decision were brought before the courts again in: Union of Nova Scotia Indians v Maritimes and Northeast Pipeline Management Ltd, 1999 CanLII 8932 (FCA), Union of Nova Scotia Indians v Nova Scotia (Attorney General), 1999 NSCA 160 (CanLII), and Union of Nova Scotia Indians et al v Nova Scotia (Attorney General), 2001 NSCA 110.

View the Decision on CanLII: https://www.canlii.org/en/ns/nssc/doc/1999/1999canlii1487/1999canlii1487.html

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