Alton Gas resistance update: NS Government's disturbing legal attack

Robin Tress
3 years ago


People have been organizing against Alton Gas for several years. Photo: Patrick Healy. 

Today Sipekne’katik First Nation goes to the Supreme Court of Nova Scotia to challenge the provincial government’s consultation process regarding the Alton Gas project.

Sipekne’katik’s essential argument is that the band was not adequately consulted about the project, despite the obvious direct impacts it will have on the community. The provincial government’s legal strategy to defend against this claim is deeply troubling.

The province is attempting to win this case by undermining the sovereignty of the Mi’kmaq people, claiming that only “unconquered peoples” are owed a duty of consultation. It argues that Sipekne’katik First Nation ‘submitted’ to the Crown in the 1760 treaty, and is therefore not owed the government’s constitutional duty to consult.

From the Nova Scotia NDP’s press release on the subject:

“The brief argues that the duty to consult only applies in those circumstances where the relationship is between the Crown and “unconquered peoples.” The brief goes on to say that the “The [Sipekne’katik] band’s submission in 1760 negates a claim of sovereignty, and therefore negates a constitutional duty of consultation.”

Last year, the government released its Policy and Guidelines for Consultation with the Mi’kmaq of Nova Scotia, which clearly states that Nova Scotia recognizes a 2004 Supreme Court of Canada ruling that governments have a duty to consult with Aboriginal peoples and accommodate their interests, and that this duty must be “understood generously.”

The government’s attempt to undermine treaty rights and re-interpret existing law is a clear step away from genuine reconciliation. This is a shameful stance for the government to take.

Cheryl Maloney, Mi'kmaq lawyer, professor, and former Sipekne'katik band councilor, told the Local Xpress, “The Nova Scotia government refuses to recognize what has been recognized by the Supreme Court of Canada, the highest law of the land. The Supreme Court of Canada in the Simon decision said that language is no longer acceptable. In 1985, Nova Scotia got a slap on the hands for promoting and putting forth these positions based not in law but in bias and prejudice.”

Naiomi Metallic, also a Mi'kmaq lawyer, told the Local Xpress, "“I find it deeply disconcerting that the government of Nova Scotia formally accepts and adopts these positions, especially when it talks about reconciling and it’s been in negotiations with Mi’kmaq for over a decade. The government comes to Treaty Day and they say really beautiful, nice things about relationships and working together and that we’re all here to stay, and then you get this crap in court.”

How was consultation insufficient?

According to Kukukwes News:

The Kwilmu’kw Maw-klusuaqn Negotiation Office (KMKNO) (a.k.a. the Mi’kmaq Rights Initiative) is through this body that formal consultation on Alton Gas was done. One of the many functions of the KMKNO is to represent the 13 Mi’kmaq bands of Nova Scotia to the provincial and federal governments in consultations and negotiations. Sipekne’katik has not been part of the KMKNO since 2013.

 “In March 2013, the Sipekne’katik Chief and Council passed a Band Council Resolution to withdraw from the Mi’kmaq rights organization. The band left KMKNO because it wanted to develop its own  consultation process in which band members can participate and access information.”

Sipekne’katik is in the process of developing its own consultation process so that the band and its members may be in direct conversation with the provincial and federal governments about issues like this instead of going through an external body.

What now?

Sipekne’katik’s case will be heard today and tomorrow (Nov. 14-15). It has long been a demand of local Mi’kmaq elders that all permits be paused until the court case is heard and a decision is made.

Alton Gas has announced that they will start brining in 2017, however this may be fraught with complications. If the court makes a decision in Sipekne’katik’s favour it could result in a new consultation process, which would mean further project delays.

The project is also facing some technical challenges. Alton Gas cut a ‘mixing channel’ into the bank of the Shubenacadie River in order to dilute the highly-concentrated brine before it enters the main river. Soon after this channel was created, it began to fill with mud from the river, and now the channel is almost entirely blocked off from the river. This is a technical challenge the company will have to overcome in order to proceed with the creation of the salt caverns.

Before: the mixing channel was open and water flowed freely between the river and the channel. Photo: John Ninpo. 


After: the mixing channel is nearly filled with mud. Photo credit: Dale Poulette

To read more about the resistance to Alton Gas and the Treaty Truckhouse at the centre of it all, click here!

For those in Halifax, please join our Truckhouse Fundraiser on December 11!

Join the Treaty Truckhouse Facebook group to follow along, or follow @stopaltongas, @robintress, or @angiles for updates from the courtroom this week.

 

 

 

 

 

 

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