Sipekne'katik v. Nova Scotia (Minister of Environment) et al., (2016) 377 N.S.R.(2d) 355 (SC)

• Judge: Arnold, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: August 17, 2016
• Jurisdiction: Nova Scotia
• Citations: (2016), 377 N.S.R.(2d) 355 (SC);2016 NSSC 260

Sipekne'katik v. N.S. (2016), 377 N.S.R.(2d) 355 (SC);

    1187 A.P.R. 355

MLB headnote and full text

Temp. Cite: [2016] N.S.R.(2d) TBEd. OC.004

Sipekne'katik (appellant) v. Nova Scotia (Minister of Environment) and Alton Natural Gas Storage LP (respondent)

(Hfx. No. 450765; 2016 NSSC 260)

Indexed As: Sipekne'katik v. Nova Scotia (Minister of Environment) et al.

Nova Scotia Supreme Court

Arnold, J.

October 5, 2016.

Summary:

Alton Natural Gas Storage LP obtained an Industrial Approval under the Environment Act to operate a brine storage pond and associated works at Fort Ellis, as part of a larger project involving the construction and operation of an underground storage facility for natural gas. The Sipekne'katik, who claimed aboriginal and treaty rights over hunting and fishing in Nova Scotia, appealed the approval under s. 137 of the Act. The Minister of Environment dismissed the appeal. Sipekne'katik appealed under s. 138 and applied for a stay of the approval pending the appeal.

The Nova Scotia Supreme Court, in a decision reported at 375 N.S.R.(2d) 265; 1182 A.P.R. 265, dismissed the application. Affidavits were filed by all parties on the appeal. Sipekne'katik objected to the affidavits filed by Alton and the Minister. Alton and the Minister objected to some of Sipekne'katik's affidavit.

The Nova Scotia Supreme Court held that all of the affidavits were relevant and admissible, subject to editing, because of the alleged breach of procedural fairness (the breach of the duty to consult and accommodate Sipekne'katik). In addition to addressing the duty to consult, two affidavits were also admitted to allow argument that the Minister did not have credible evidence before her on the s. 137 appeal. The weight to be given to each affidavit was to be determined on the s. 138 appeal.

Pollution Control - Topic 9404

Appeals or judicial review - Evidence - New evidence - Alton Natural Gas Storage LP obtained an Industrial Approval under the Environment Act to operate a brine storage pond and associated works at Fort Ellis, as part of a larger project involving the construction and operation of an underground storage facility for natural gas - The Sipekne'katik, who claimed aboriginal and treaty rights over hunting and fishing in Nova Scotia, appealed the approval under s. 137 of the Act - The Minister of Environment dismissed the appeal - Sipekne'katik appealed under s. 138 of the Act - Affidavits were filed by all parties - Sipekne'katik objected to the affidavits filed by Alton and the Minister - Alton and the Minister objected to some of Sipekne'katik's affidavit - The Nova Scotia Supreme Court stated that s. 138 limited the ability of parties to tender evidence not before the Minister - Evidence beyond the Record was only admitted in exceptional circumstances - Such exceptions came under four headings (1) lack of jurisdiction; (2) reasonable apprehension of bias; (3) breach of procedural fairness and natural justice; and (4) false testimony - All of the affidavits were relevant and admissible, subject to editing, because of the alleged breach of procedural fairness (the breach of the duty to consult and accommodate Sipekne'katik) - In addition to addressing the duty to consult, two affidavits were also admitted to allow argument that the Minister did not have credible evidence before her on the s. 137 appeal - The weight to be given to each affidavit was to be determined on the s. 138 appeal.

Counsel:

Raymond Larkin, for the appellant;

Alexander Cameron, for the respondent, Minister;

Robert Grant, for the respondent, Alton.

This matter was heard at Halifax, Nova Scotia, on August 17, 2016, by Arnold, J., of the Nova Scotia Supreme Court, who delivered the following judgment on October 5, 2016.