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Pictou Landing First Nation must be consulted on new Northern Pulp treatment plant: judge


The Northern Pulp facility in Pictou County. The province contention that because any new effluent treatment facility would have to undergo an environmental assessment, the province and the mill would have to consult with the First Nation before its construction, but a Supreme court judge said this argument “misses the mark.” - File
The Northern Pulp facility in Pictou County. The province contention that because any new effluent treatment facility would have to undergo an environmental assessment, the province and the mill would have to consult with the First Nation before its construction, but a Supreme court judge said this argument “misses the mark.” - File

A Nova Scotia Supreme Court judge has ordered the province to consult with the Pictou Landing First Nation band on its funding of Northern Pulp’s new effluent treatment facility.

The province built and owns the existing treatment plant used by Northern Pulp.

It is also contractually obligated to provide an effluent treatment facility to Northern Pulp until 2030 – well past the Jan. 31 deadline by which the 2015 Boat Harbor Act demands the existing facility be shut down.

So far the province has refused to release any details on who will pay for the new treatment facility, which needs to be operating by the day of Boat Harbour’s closure. Correspondence between the mill and provincial staff puts the estimated price tag at well over $100 million.

In July, the Pictou Landing First Nation petitioned the Supreme Court to force the government to consult with the band on its funding of the new effluent treatment facility.

The band argued that because the mill would likely shut down without provincial funding for the new effluent treatment facility, the government, by providing tax dollars, was contributing to continued pollution of the air breathed in by Pictou Landing First Nation residents.

The province countered that because any new effluent treatment facility would have to undergo an environmental assessment, the province and the mill would have to consult with the First Nation before its construction.

“This argument misses the mark, in my respectful view, for a number of reasons,” Justice Timothy Gabriel wrote in a ruling released by the court Monday.

Gabriel found that because the govenment is both the funder and regulator of the new effluent treatment facility, the “honour of the Crown” could be questioned.

"... it would essentially boil down to the Crown (wearing one hat) being called upon to determine whether a project which the Crown (wearing another hat) has funded passes muster. This will do nothing to assuage whatever cynicism has been engendered in the past."

            - Justice Timothy Gabriel

“Does the potential involvement of the Crown in the funding of the new ETF make it more or less likely that the required Environmental Act approval will ultimately be granted?” reads Gabriel’s decision.

“While (as the respondent points out) it would be a different ‘department’ of the Crown involved in the approval process, it would essentially boil down to the Crown (wearing one hat) being called upon to determine whether a project which the Crown (wearing another hat) has funded passes muster. This will do nothing to assuage whatever cynicism has been engendered in the past by the already significant environmental impact which has been visited upon treaty lands and environs by the mill and its facilities to date.“

The 28-page ruling does mean, however, that the province will have to disclose to the First Nation how much government funding goes toward the proposed effluent treatment facility – for which the mill plans to register an environmental assessment in January.

“What it means (is) there is a duty to consult,” said Brian Hebert, who represented Pictou Landing in the application for judicial review.

“As part of that duty, the province is required to provide some information to the Pictou Landing First Nation regarding its decision (to fund the new treatment facility).”

With that information, the First Nation government will provide a response to the province government that the latter is obligated to take into consideration.

For its part, the Office of Aboriginal Affairs provided a written response to The Chronicle Herald.

“We are continuing to review the judge’s decision and considering the direction from the court as we look at next steps in the ongoing consultation with Pictou Landing First Nation,” spokesman Gary Andrea wrote.

“Justice Gabriel’s decision did dismiss the First Nation’s claims of procedural unfairness and noted the novel nature of the issue raised, and that both parties sought guidance from the court in good faith.

“As such, no costs to either party was awarded. Government will continue to consult with the Pictou Landing First Nation on Northern Pulp’s effluent treatment facility.”

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