Our Liberal Nova Scotia government recently dismissed appeals of their approval of brine discharge into the Shubenacadie River estuary for the Alton Gas storage project. In announcing the appeal dismissals, Environment Minister Margaret Miller claimed that:
"There's been extensive consultation since 2007. It's all been very well documented.”
“The decision to dismiss the appeals was based on science.”
"Our job is to assess risk and to mitigate that risk," Miller said. "I believe that we have made the right decision and we've considered all potential impacts on the Shubenacadie River."
"I am also satisfied that the scientific reports considered in the application for the industrial approval have appropriately considered the potential effects on the Shubenacadie River."
The project proposes to carve huge natural gas storage caverns out of extensive underground salt beds. Carving the caverns out requires injections of massive amounts of fresh water, with the salt brine discharged into the confluence of the Stewiacke and Shubenacadie Rivers. The river estuary is a fertile home to many species, including the crucial striped bass fish population.
Comparing Government Claims to their Practice
We will take a look at those claims made by Minister Miller, with a particular focus on those highlighted above. The controversy over the government's constitutional “duty to consult” with Sipekne'katik is the topic of a following article.
The required environmental assessment of the project that was completed in 2007. Consultation with the community is a required part of the EA process, and the document makes very vague and non-specific claims of consultation. But the first that was heard about the proposal by neighbours of the future salt caverns in Brentwood, was when the company starting building roads. When neighbours asked, the only thing that was mentioned was the already obvious clearing of trees.
To carve out the salt caverns water is to be pulled from the Shubenacadie River, and the salt loaded brine discharged back through a 12 kilometre pipeline. The first anyone living outside the immediate neighbourhood of the caverns heard about the project was when construction started two years ago on the brine discharge facility at the river.
Brentwood residents Valerie and Colin Hawks have for years been unable to get the provincial government to talk to them, let alone consult. And 'consultation' with Alton Gas has consisted of the occasional leaflet and inconsistent answers to phone inquiries.
The government's claims of basing their decisions in science begins, and at least should be founded on, that 2007 Environmental Assesment. Unfortunately for the people of Nova Scotia, that document is typical of the long established perfunctory process of “assessment” in Nova Scotia.
Unfortunately for the company, they did not seriously begin working on the project until things had changed somewhat in Nova Scotia: the citizens have stopped just accepting what is pushed on them. So, while the government's approval of that perfunctory Environmental Assessment was technically all the proponent needed, and the government continues to stand behind the EA and their 2007 approval of it; in practice, the thinness of the process and the document became a liability for the government and for Alton Gas.
The Mi'kmaq People Do Not Approve. Oops.
The other thing that changed during the five years Alton Gas sat on its approvals, is that Canadian courts put a lot more teeth into the Crown's “duty to consult” with aboriginal peoples over proposed resource projects on their traditional territory. A lot of people fish on the Shubenacadie River- among them people of Sipekne'katik and Millbrook Mi'kmaw communities, who have been doing it for hundreds of years.
If the fishers and river neighbours had “just” been folks from settler communities, the government could have and would have just waved at them the pieces of paper from the approval and “science” processes. “Your government has considered, and is protecting, your interests.” And if this had happened ten years ago, the protests of the Mi'kmaq would also have been in vain.
But now, Mi'kmaw people have recognized treaty and aboriginal rights. And the Alton Gas project did not even have a pretend Mi'kmaq consultation process to point to.
So the summer of 2014 brought a halt in construction and a belated start to a Mi'kmaq consultation process.
The High Water Mark of Science Around the Project
The question and the needs of duty to consult is far broader than scientific assessment of the effects of proposed projects, but the requirements of Mi'kmaq consultation for the first time brought substantive science into the picture- eight years after the province approved the proponents Environmental Assessment.
The need for Mi'kmaq consultation had the effect of forcing the provincial government to go back and do a substantive environmental assessment on the Alton Gas project for the first time- albeit a new de facto EA that only covered issues around discharging massive amounts of brine into the Shubenacadie River.
The “third party review” commissioned by the Mi'kmaq treaty rights organization, Kwilmu’kw Maw-klusuaqn Negotiation Office (KMKNO or KMK as it is known), did not touch on issues around the salt caverns and gas storage themselves, nor inquire into economic benefits, as required of an environmental assessment.
Kwilmu’kw Maw-klusuaqn Negotiation Office, Mi'kmaq Rights Initiative, released the report by Conestoga-Rovers in July 2015.
Two Steps Forward, 1.9 Steps Back
Robin Tress, author of the recently dismissed Ecology Action Centre appeal of the province's Industrial Approval, commented that the consultants' study did not cover all the major questions about the risks of the proposed project, but it was a solid start and a systematic approach to risk assessment. Tress said, “The consultants at least asked many of the right questions. But there was no follow up on the risk assessment questions they raised.”
What KMKNO actually got was the proponent coming up with mitigation strategies only around the risks of the discharge to fish larvae and fry. Among the central questions raised by the third party review and not addressed at all: the completely unknown effects of how the salt brine discharges will effect whether spawning takes place at all. See here the Minister's specious treatment of that key issue in her dismissal of the Ecology Action Centre appeal.
The salt brine discharge facility at the shores of the Stewiacke – Shubenacadie Rivers confluence, were largely completed when construction was halted in 2014. The project still required an “Industrial Approval” to be able to operate the facility. While this is normally one step along the way in a regulatory process- in this case it was in practice the form where for the first time Nova Scotia Environment would review all the new assessment going into the hopper. It is to this process that Minister Miller is referring in her claim that “we've considered all potential impacts on the Shubenacadie River."
Round and Round the Small Circle of "Delegating" Regulation
What the Department of Environment actually considered were documents produced by a Nova Scotia scientist employed by Alton Gas, who addressed only toxicity of the brine to fish larvae and fry, and who drew up plans to mitigate the toxicity. While this toxicity is one central issue in assessing and addressing the risks of brine discharge into the estuary, it is only a slice of the scope of key concerns identified by the KMK consultants.
The monitoring plan in the government's Industrial Approval was itself drawn up by these scientists. Unusually, the government's own monitoring plan is only referred to in the Industrial Approval, and can only be found at the Alton Gas website.
That is already a considerable stretch beyond the common participation of companies in the regulator drawing up their monitoring plans. This might have been mitigated with robust oversight by Nova Scotia Environment. But the oversight was given over in practice to the federal Department of Fisheries and Oceans (DFO).
DFO does have considerably more fisheries expertise available than does the provincial government. But the DFO review was done by a close colleague, and a former student, of Professor Duston of Dalhousie, who had drawn up all the testing and mitigation plans for Alton Gas.
There appears to be no reference by the DFO scientists, or by the province, to considerable DFO work on the “area of interest” that includes the Shubenacadie estuary. That ongoing work has identified endangered species, the uniqueness of the composition of the marshes, as well as the larger picture of the already precarious niche (noted in the KMK “third party review”) of the striped bass and other fish populations.
In the ten years that this project has been on the books, the government of Nova Scotia has been steadily pushed into belatedly requiring more from the project proponents. But the current Liberal government seems to have decided it wants only enough science brought to bear to give the appearance of due dilligence in protecting the public and the environment.
in the Local Xpress