The Nova Scotia Supreme Court has, in what could be a potential landmark judgment, expanded on the issue of the Crown's "duty to consult" with First Nations holding that the duty goes beyond considering just the environmental impact of large infrastructure projects.
In a ruling by the Honourable Justice Frank C. Edwards, the Court concluded that, as part of the "duty to consult," a First Nation's claim to title and treaty rights must be first assessed before the project's impacts can be considered. The likely effect of this ruling is that the process of discharging the Crown's "duty to consult" will certainly be more intensive and demanding.
This case also shows the Court taking notice of the ongoing COVID-19 crisis. The Court held that its order (requiring the parties to undertake consultations) is effectively suspended until the pandemic crisis is resolved. Furthermore, the Court alluded to the possibility that the parties may agree to alternative "remote" arrangements to commence the consultations earlier.
Alton Natural Gas Storage LP (“Alton Gas”) proposed to construct a natural gas storage facility (the “Project”) which requires the development of underground caverns in salt formations near the Shubenacadie River, NS.
The Court’s decision reviews and analyzes the process undertaken by the Minister of Environment & Labour (the "Minister") during the course of an environmental assessment and industrial approval process. The consultative and review process undertaken by the Minister spanned a period of nine years, commencing in 2007 when Alton Gas registered the Project under the Environment Act (Nova Scotia), and culminating in the issuance of an industrial approval in 2016. As part of the consultation process, the Province negotiated and consulted with the Sipekne’katik Band (the “Band”).
The Band appealed the grant of the industrial approval, claiming that the consultation was inadequate. The Minister rejected the appeal on the ground that there was consultation which had resulted in changes to the industrial approval. The Band appealed the Minister’s decision to the Court who remitted the matter back to the Minister for reconsideration following further submissions from the Band. The Minister again rejected the appeal but, included two additional terms and conditions in the industrial approval. The Band again appealed the Minister’s decision to the Court leading to this decision.
Justice Edwards overturned the decision of the Minister, holding that the Province of Nova Scotia did not fulfil its duty to consult. The main issue with the Province’s consultation was not the content of the consultation and negotiation. In fact, the Court commended the Province on its efforts with respect to the environmental concerns of the Band.
Duty to Consult
Justice Edwards held that undertaking a preliminary assessment of First Nation's claim to title and treaty rights, and providing the First Nation with an opportunity to comment on such preliminary assessment, is a key step in the consultation process. In this instance, the Province did not originally assess the Band’s claim to title over the subject lands. The Court held that in order to properly consult, the Band’s claim to title and treaty rights needs to be initially assessed in order to determine the content of the duty to consult and any necessary accommodation, including avoidance, mitigation, or compensation., The Court held that this preliminary assessment was not done and the Band was not given an opportunity to comment on the same.
The Province focused almost entirely on the environmental impacts of the Project, and not on the potential impacts of the Project on the claims to title and treaty rights of the Band. In concluding that the Province’s process was insufficient, the Court referenced the principle of “deep” consultation, requiring the Province to examine the Project beyond environmental issues.
The Court, however, did clarify that the Band does not have a veto over the process, despite its claim that it intended to hold a referendum on the Project.
COVID-19 Impact on Duty to Consult
The Court allowed the appeal of the Band reversing the Minister's decision on the industrial approval and ordered the parties to resume consultations for a period of 120 days unless they can mutually agree to another time span. Recognizing that the order was issued amidst the current pandemic on March 24, 2020, the Court ordered that:
"Because of the continuing COVID 19 situation, there is no way at this point to designate a start date for the resumption of consultation. That will have to wait for the declaration by the Province's Chief Medical Officer of Health that the COVID 19 crisis is over. The parties are free to agree upon an alternative remote arrangement."
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