Contempt, constitutional cases set for 2020
Proceedings related to the Alton Gas project continue to move at glacial speed through the courts.
On Monday, a Mi'kmaq lawyer from the Sipekne'katik Band was told to get his filed documents in order before returning to the Nova Scotia Supreme Court.
“I don't want to see the claim impaired or impeded,” Justice Timothy Gabriel said of lawyer Michael McDonald's intent to argue that the Alton Gas brining project at the Shubenacadie River estuary at Fort Ellis, Colchester County, can't proceed because the land was never ceded or sold by the Mi'kmaq people.
“You are a lawyer and an officer of the court and you know what the rules are and I expect you to follow them so that your clients can get to court and make their argument,” Gabriel told McDonald. “You've been in court three times now and three times judges have given you instructions in terms of what you have to do to get to court in order to make this argument, which everybody wants to see you have an opportunity to do.
“The civil procedure is there.” Daniela Bassan, an Alton Gas lawyer, kicked off Monday's court proceedings by arguing that McDonald's materials were procedurally and substantively improper.
“The documents don't actually distinguish among pleadings, evidence or arguments and secondly they are noncompliant with the rules of civil procedure as well as directions given by the court,” Bassan said. “Based on those two broad criteria, we say in the motion that those materials constitute an abuse of process.”
If not an abuse of process, “they are irregular and ought to be struck,” she said.
McDonald had sought an injunction against any work continuing at the Alton site until his constitutional and treaty argument is heard.
But Gabriel ordered the previously filed materials struck and for McDonald to start from Square 1.
“You want to get to court and argue the main meat and potatoes of your claim and I get that but the problem is that they (Alton) are saying, ‘I got these documents and they don't look like they are supposed to look like …'
“That's the roadblock. Nobody is here saying that they are not going to let you argue your main case.”
After a short recess in which the lawyers conferred, McDonald was given a
Feb. 6, 2020, date to file new or replacement materials. Alton was given until March 5 to respond.
Meanwhile, the only new court dates set were April 27 and 28 for a contempt motion, filed in May against Madonna Bernard, Darlene Gilbert and Paula Isaac. The three women, who describe themselves as grassroots grandmothers and water protectors, refused to move from the front gate of the Alton river site as was stipulated in a March order from the Nova Scotia Supreme Court against Dale Andrew Poulette, Rachael GreenlandSmith and others.
The three, who were arrested April 10, were in court Monday and McDonald said his clients had acted under Mi'kmaq law.
“They didn't argue the fact that they entered those lands but they were in the belief under Mi'kmaw law that they had a right to,” McDonald told the court. “That's the whole purpose of the constitutional argument.”
In yet another Alton Gas case before the courts, a decision from Justice John Bodurthias is still pending from a September
hearing on whether to admit an August affidavit in a three-year-old Sipekne'katik appeal of the provincial Environment Department's approval of the Alton project.
The department issued the industrial approval in January 2016 to Alton, a subsidiary of AltaGas, to operate a brine storage pond. Six groups, including the Sipekne'katik band, who primarily reside in nearby Indian Brook, appealed the permit decision.
The Environment Department denied all six appeals three months later. The Sipekne'katik band then took the department's denial of the appeal to the Nova Scotia Supreme Court and in January 2017, Justice Suzanne Hood released a decision overturning the denial of the appeal.
More than two years later, thenenvironment minister Margaret Miller in April again upheld the department's industrial approval for the Alton Gas project.
Raymond Larkin, co-counsel for Sipekne'katik who had argued the appeal before Justice Hood, argued in September that an affidavit from Jennifer Copage, who was the consultation co-ordinator for Sipekne'katik at the time, is relevant to an inadequate consultation argument.
Bassan told the court in September that the Copage affidavit is just a new spin on old evidence and that it amounts to relitigation, which is unfair to the process.
The Bodurthias decision is expected before the sheduled Nova Scotia Court of Appeal dates of Feb. 18 and 19 for the Sipekne'katik application.