Court fight over access to Alton Gas site focuses on Indigenous rights

Indigenous rights were at the centre of an intense courtroom debate Tuesday as a Nova Scotia company asked a judge to order the RCMP to remove protesters camped on the firm's property.

The company, Alton Natural Gas Storage, is behind a plan to store natural gas in huge underground caverns north of Halifax, but the project has been delayed for years because of ongoing protests.

Alton, a subsidiary of Calgary-based Alta Gas, says the injunction is necessary because workers have been prevented from moving in heavy equipment to maintain and repair its facilities near the Shubenacadie River.

Robert Grant, a lawyer representing Alton Gas, said the camp established in 2016 has led to a "combustible situation."

"This is a simple case of trespassing on property," he told the court.

'Repeated incidents of impeding ... access'

He said the main access road to the company's pumphouse and control centre has been blocked by makeshift structures, including a two-storey mud-and-straw hut, a teepee, a garden and some large rocks.

"There have been repeated incidents of impeding ... access," said Grant, noting that Mi'kmawprotester Dale Poulette has occupied the hut for about two years.

Grant alleged that Poulette, a member of the Eskasoni First Nation in Cape Breton, is an erratic, unpredictable person who has repeatedly threatened an Alton Gas employee at the site.

"He yelled at him and swore at him and physically tried to stop him," Grant said. "The profanity is part of the aggressiveness in these encounters."

The lawyer said the facilities have been damaged by a recent power outage, but Grant did not say who may have been responsible.

As for Aboriginal and treaty rights, Grant cited case law suggesting those rights only apply to groups and not to individuals.

"Mr. Poulette does not speak on behalf of the Sipekne'katik First Nation," he told the court, which was packed with about 100 spectators. "Mr. Poulette has no authority on his own to assert treaty rights."

Asserting treaty rights

Court heard that Poulette has been adopted by the nearby band's elders, and was asked to become a "water protector" by a group of "grassroots grandmothers."

Alton Gas has argued its representatives have attempted "engagement and discussion" with the protesters, but they say those talks have gone nowhere.

James Gunvaldsen Klaassen, a lawyer representing Poulette and protester Rachael Greenland-Smith, argued that Poulette can assert his treaty and Aboriginal rights on behalf of the Sipekne'katik First Nation.

While it's true Aboriginal rights are collective rights, there are times when individuals must exercise those rights on behalf of a larger community, he said.

"These rights are central to my clients," he said.

Nova Scotia Supreme Court Justice Gerald Moir seemed to acknowledge the point, citing the Supreme Court of Canada case in 1999 involving Donald Marshall Jr.

The Mi'kmawfisherman's court challenge established that First Nations people on the East Coast had a right to hunt, gather and fish to earn "a moderate livelihood."

'Respondents ... are water protectors'

Gunvaldsen Klaassen said Poulette is exercising collective rights on behalf of the local community and with its consent. The lawyer stressed that the protest has been non-violent.

"This is not a blockade with guns," he said. "And it is not a simple trespass case ... The respondents are not trespassers, they are water protectors appointed by the community."

Gunvaldsen Klaassen also argued that Alton Gas workers have not been denied access to the site, and he brushed off suggestions Poulette is erratic and unpredictable.

"It is not against the law to swear ... or to express oneself forcefully," he said, adding the company has not suffered irreparable harm.

"Alton is not going to be put out of business if this injunction is not granted."

Decision expected March 18

Moir reserved his decision until March 18 after hearing more than two hours of arguments.

Outside the court, protest leader Dorene Bernard said the land in question remains unceded Mi'kmawterritory, and she insisted the protesters have sacred duty to protect the 73-kilometre tidal river.

"This is our unceded[Mi'kmaw]land," said Bernard, a social worker, academic and member of the Sipekne'katik First Nation in nearby Indian Brook, N.S.

"You are welcome here, but that doesn't mean that you can destroy our water and land ... You cannot put your hand out in reconciliation and then turn around and take something away or destroy something."