The remarks came in a May 11, 2016 sentencing decision in R. v. Northern Pulp Nova Scotia Corporation in which the pulp mill owner was fined $225,000 for discharging 4 million litres of raw wastewater into the East River of Pictou County, Nova Scotia. The wastewater leaked from an aging pipeline which runs from the 50 year old pulp mill to a treatment facility located at Boat Harbour, located next to the Pictou Landing First Nation community. Since 1967, the toxic wastewater has contaminated Boat Harbour, once a beloved gathering place for the Mi’kmaq of Nova Scotia, and has led to intolerable air conditions on the rural First Nation reserve.
The judge ordered that $75,000 of the fine, which is payable by June 30, 2016, be used to fund Pictou Landing First Nation fish habitat restoration and protection projects under Canada’s Environmental Defence Fund.
The judge had earlier adjourned the sentencing hearing in January, 2016 when he learned that the Federal Crown had not given Pictou Landing First Nation a chance to file a victim impact statement. In his decision Judge Atwood found that the court itself had a Constitutional duty to consult with Pictou Landing First Nation in the sentencing process: “Consistent with its obligation inherent in the honour of the Crown, and recognizing the importance of rebuilding the Crown’s relationship with Aboriginal peoples in Canada, the prosecution undertook, at the request of the court, a consultation with the Pictou Landing First Nation as to the impact of this very serious environmental offence upon that community. As a separate and equal branch of government, the court shares the obligation to consult; given the limited resources available to it, the court depends upon the executive branch of government to provide the resources necessary to allow the court to fulfil its various constitutional roles in a manner consistent with an independent judiciary.”
Northern Pulp had objected to some of the evidence in the First Nation’s victim impact statement, but Judge Atwood found that the adverse impact of Boat Harbour on Pictou Landing First Nation was indisputable:
“In my view, while the historical account in Chief Paul’s statement might extend beyond what counsel assert is admissible, the truth of the damaging impact that the pulp mill at Abercrombie Point and its toxic effluent-treatment site at Boat Harbour has had on the well-being of the Pictou Landing First Nation—and continues to have— is so conspicuous and notorious as to be beyond dispute. Even if certain particular points of that history might not fall within the scope of what the court might notice judicially, there is no doubt in my mind about the impact this offence had upon the Pictou Landing First Nation community”.
After learning of the court’s request, Chief and Council organized a community meeting to document the impact of the effluent spill on the community and filed a detailed victim impact statement with the court.
The judge accepted the truth of Chief Andrea Paul’s evidence from the victim impact statement:
“This was not a victimless offence. The discharge of effluent from a leak in the 50-year-old pipeline on June 10, 2014 was simply the latest environmental insult to the traditional territory of the Pictou Landing First Nation.”
Judge Del Atwood’s decision is the first judicial pronouncement on the sad history of Boat Harbour and comes at a crucial time, as the Province of Nova Scotia and Northern Pulp discuss the construction of a new treatment facility to replace the one at Boat Harbour, which must be abandoned by January 30, 2020 under the Boat Harbour Act. Judge Atwood’s decision may signal that the courts will have little sympathy for a request to extend the January 30, 2020 deadline to close the existing treatment facility, should the Province and the mill owner fail to build a new one in time.
One thing is sure, Judge Atwood’s decision is welcome news for the Pictou Landing First Nation and means much more than the $75,000 in project funding that will come from the fine. It will reassure the community should they need to turn to the courts for help once again.