Following a decades-long history of broken promises to the Pictou Landing First Nation, the Liberal government in April passed the Boat Harbour Act, setting a definite date for the closure of the waste water treatment facility used by the pulp mill at Abercrombie point. Fifty million dollars to begin remediation was also set aside. 

But first the Boat Harbour facility has to close, and the path to that is anything but clear. While the government guarantees that the facility will close by the Act's 2020 deadline, everybody agrees that the pulp mill will require a replacement facility.

That is all that the government and Northern Pulp agree on. Discussions are on hold, even though timelines for replacing the Boat Harbour facility are challenging.

The Boat Harbour Facility was built by the Nova Scotia government in 1967 as a major enticement for Scott Paper to build the pulp mill. Through multiple changes in ownership of the pulp mill, the government has continued to own the Boat Harbour Facility, and the extensive environmental impact liabilities that go with it.

The Pictou Landing First Nation was told in 1967 that the facility would not have any impact on Boat Harbour, but it was clear from the opening of the pulp mill that this was not true. Over the decades successive provincial governments made many promises to fix the problems, to make specific improvements; and eventually to close the facility.

All of these promises to Pictou Landing were undermined or flatly contradicted by contractual promises successive governments made to mill owners about the continued use of the facility. This culminated in a lease extension until 2030 granted by then Premier John Hamm, who is now the Board Chairman of Northern Pulp.

Company and Government Stake Their Positions

The official position of the government is that notwithstanding all its contractual obligations, Northern Pulp shares the responsibility for replacing the Boat Harbour facility. The official position of Northern Pulp is that they have a contractual right to use the existing facility through 2030- full stop.

Neither of those official positions is tenable as stated. While nothing in the Boat Harbour legal agreements explicitly spells out what happens if the Boat Harbour facility is replaced while the mill has a lease to use it, it is clear that the government is on the hook for replacing it. “How much” on the hook can be debated, but potentially for the entire cost of building a new facility. For its part, Northern Pulp may be able to compel the government to compensate it for closing Boat Harbour, but cannot make the government keep the facility open.

So why not meet in the middle? Indications are that the government would accept sole responsibility for building the replacement facility, if it got some substantial quid pro quo from Northern Pulp. That is how these things normally work: the government accepts what it would probably have to concede anyway, but could fight against for a long time.

The problem is that Northern Pulp appears to be  unwilling to make a comparable concession. The pulp mill is not ready to 'plug into' a new treatment facility that meets current industry and regulatory standards, and Northern Pulp is expressing a complete unwillingness to make the required investments. Hence their official position that they have a lease on the existing facility until 2030- knowing full well that is not a tenable position.

It Gets Murkier

This is where the new Industrial Approval for Northern Pulp comes in.

The company and government have barely begun discussing the replacement for Boat Harbour. Literally, there has been no more than personal introductions at the negotiating table. While publicly complaining that it cannot afford the costs of 'hooking up' to a new treatment facility, Northern Pulp has not officially said that it will not make the required investments. That statement is in practice made by the company’s fight against the substantially increased requirements in the new Industrial Approval [IA] for the pulp mill.

Northern Pulp exercised their right to appeal the terms of the IA to Minister of the Environment Randy Delorey, and the Halifax Media Coop received a copy of the appeal through Freedom of Information. The amount of detail in their appeal, and the application of high-priced expertise, is unprecedented.

The company's appeal devotes considerable and detailed attention to the technical parameters of the Industrial Approval requirements to decrease water usage in waste treatment, and to separate out storm water from the mill site that currently goes to the treatment facility. These changes and investment requirements would also be a big of part of the mill 'hooking up' to a new waste water treatment facility.

Multiple consultants argue for Northern Pulp that these requirements are outside industry norms. They also argue against the findings of previous independent consultants that the existing facility’s older waste water treatment process is incapable of keeping up with evolving regulatory norms.

Push Comes to Shove

Strictly speaking, the appeal is addressed to the Minister. But it reads like a legal brief preparing for a court case. And Northern Pulp has the right to take the Industrial Approval to court if it is not satisfied with the Minister's reply to their appeal. Consistent with that likelihood of legal action, the government has in turn hired specialized consultants to help with the Minister's reply to the Appeal; and has taken the unheard of step of extending by 30 days the deadline for the Minister's reply.

Back to the Boat Harbour Process Itself

Negotiations between Northern Pulp and the government over how to replace the Boat Harbour facility are on hold until it is clarified what the company is required to do. That resolution could come with the Minister's reply to the company's appeal of the Industrial Approval- if Northern Pulp acquiesces to the requirements. But given their extensive positioning for potential legal action over those requirements, this outcome seems unlikely.

If Northern Pulp does not accept the Minister's reply to the appeal, and elects to take the government to court- that is not a short process. And everyone agrees that replacing the Boat Harbour facility before it's 2020 closure requires a design and environmental assessment process that begins immediately.

How this take no prisoners strategy is supposed to work in the end for Northern Pulp is not clear. But their extensive appeal of the Industrial Approval indicates that the company has circled the wagons against accepting any requirements that will require them making significant investments in the mill.