Sipekne'katik v. Nova Scotia (Minister of Environment) et al., 2016 NSSC 178

• Judge: Wood, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: June 22, 2016
• Jurisdiction: Nova Scotia
• Citations: 2016 NSSC 178;(2016), 375 N.S.R.(2d) 265 (SC)

Sipekne'katik v. N.S. (2016), 375 N.S.R.(2d) 265 (SC);

    1182 A.P.R. 265

MLB headnote and full text

Temp. Cite: [2016] N.S.R.(2d) TBEd. JL.007

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

(Hfx. No. 450765; 2016 NSSC 178)

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

Nova Scotia Supreme Court

Wood, J.

July 13, 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. The Minister of Environment dismissed the appeal. Sipekne'katik appealed and applied for a stay of the approval pending the appeal.

The Nova Scotia Supreme Court dismissed the application.

Practice - Topic 8954

Appeals - Stay of proceedings pending appeal - What constitutes "irreparable harm" - 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 underground facility was to be built in a salt formation using a technique whereby water was pumped into the structure to dissolve the salt thereby creating a cavern - The water was to come from the Shubenacadie River - Once the water was removed from the underground excavation, it would contain a significant level of dissolved salt - That brine would be kept in the brine storage pond until it was diluted and returned to the River - The Sipekne'katik, who claimed aboriginal and treaty rights over hunting and fishing in Nova Scotia, and particularly in the area of the Shubenacadie River estuary, appealed the approval - The Minister of Environment dismissed the appeal - Sipekne'katik appealed and applied for a stay of the approval pending the appeal - The Nova Scotia Supreme Court denied a stay - There was a serious question respecting the Province's obligation of consultation and accommodation and whether the Minister denied Sipekne'katik procedural fairness with respect to the Ministerial appeal - However, Sipekne'katik had not established irreparable harm - If the decision was ultimately in Sipekne'katik's favour and the approval was set aside, Sipekne'katik would still have time to engage in meaningful consultation - Sipekne'katik had not established exceptional circumstances that justified a stay in the absence of such harm.

Practice - Topic 8959

Appeals - Stay of proceedings pending appeal - Considerations - [See Practice - Topic 8954 ].

Counsel:

Raymond F. Larkin, Q.C., and Balraj Dosanjh, for the appellant, Sipekne'katik;

Alexander Cameron, for the respondent, Nova Scotia (Minister of Environment);

Robert Grant, Q.C., Daniela Bassan, and Laura Rhodes, for the respondent, Alton Natural Gas Storage LP.

This application was heard at Halifax, Nova Scotia, on June 22, 2016, by Wood, J., of the Nova Scotia Supreme Court, who delivered the following judgment on July 13, 2016.