Case information

Constitutional law — Aboriginal Law — Duty to consult — Provincial funding — Should provincial funding towards replacement of an existing industrial facility (the subject matter and potential adverse physical impacts of which are already under active consultation) trigger a duty to consult regarding the funding itself — Should legislation such as the Boat Harbour Act, passed by the legislative branch of government to support the closure and remediation of an existing treatment facility (and therefore ameliorate adverse impacts of that component of a larger existing industrial facility), be characterized as “Crown conduct” that creates a new adverse impact that resets what is referred to as “the legal baseline” so as to trigger the duty to consult?

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

For over fifty years, the pulp mill at Abercrombie Point in Nova Scotia has discharged fluid effluent and airborne emissions. Since 1967, the effluent has settled in the Boat Harbour Effluent Treatment Facility (the Mill), owned by the Province and leased to the Mill’s operator (currently the Northern Pulp Nova Scotia Corporation). Pictou Landing First Nation, situated nearby, has long complained to the Provincial government that the Mill’s discharges are toxic. In response, and as partial accommodation to Pictou Landing, the Province of Nova Scotia enacted the Boat Harbour Act, SNS 2015, c 4, s. 3, which states amongst other things that after January 30, 2020, the use of the Boat Harbour Treatment Facility must cease. In order to continue operating, the Mill required a new effluent treatment facility and approval from the government. The Province conducted confidential discussions with the Mill about providing funding for the new treatment facility. When Pictou Landing learned of the proposed funding, it applied to the Supreme Court of Nova Scotia for a ruling that accommodation extends not only to the treatment facility but to any potential government funding as well. The Supreme Court of Nova Scotia agreed with Pictou Landing and ordered the Province to consult on the proposed funding. The Court of Appeal for Nova Scotia unanimously agreed that a duty to consult exists given the potential for Provincial funding to extend the life of the Mill beyond the timeline contemplated in the Boat Harbour Act.