Earlier this month Nalcor asked the Supreme Court of Newfoundland and Labrador for an Interlocutory Injunction, preventing NunatuKavut Community Council and it’s president, Todd Russell, from holding further protests at the Caroline Brook Access Road.
Nalcor’s lawyers claimed in court that the NCC has had plenty of opportunity to raise their concerns about the Muskrat falls project. According to the company, they’ve been in consultation with the NCC since 2005.
In an interview with the Labradorian, former NCC president Chris Montague gave his take on the consultation process between the NCC and Nalcor. Montague, who was president between 2005-2012, says Nalcor’s efforts at consultation were just smoke and mirrors.
“I can’t really say there was any meaningful discussion, or any meaningful consultation,” says Montague. “What’s consultation?” According to the Supreme Court of Canada, consultation without accommodation is meaningless. So was it adequate consultation?”
“They viewed consultation as only a means to give us an idea of what was going on,” Montague claims.
During the injunction hearing, Nalcor Lawyer Maureen Killoran said that Nalcor sent a communication about the project to 10 different aboriginal groups, including the NCC. According to Killoran, the NCC was one of the nine groups that chose not to respond.
Montague admits that, early in his tenure, the NCC (or Labrador Metis Nation as it was called back then), refused to talk with Nalcor. But Montague says his hands were tied in those earlier days. The previous Labrador Metis Nation leaders drafted a resolution on the Lower Churchill. Montague says the resolution stated that LMN would not consult with the provincial government until the province agreed with the Metis on certain key points.
“In the very beginning of my presidency we were advised by a senior member of our staff not to talk directly with Nalcor because it was feared that it would be considered consultation. He especially referred to a resolution; we inherited from our previous LMN administration, which laid the parameters for discussion with the Government of NL concerning the Project. Neither Nalcor nor the province considered those criteria and they made no attempt to discuss them with LMN.”
But Montague still contends that Nalcor and the provincial government were the most uncommunicative during his time as LMN president.
“We were not being responded to. An employee of Nalcor, who was responsible for aboriginal affairs, walked in and asked us if we were interested in talking about the lower Churchill. Of course we did. He was told (by Nalcor) that we would not discuss anything with them.”
During the injunction hearing, Nalcor furthered their argument by saying that they gave NCC an estimated $100,000 for the consultation process. But Montague contends that the money was used to travel around Labrador and give information sessions to the Metis people about the project.
“Nalcor used the funding to give their own spin on the project,” claims Montague.
What the NCC really wanted, during Montague’s time as president, was grants for a Metis land-use study of the Muskrat Falls area. Montague says that never happened.
“We were negotiating to get some land use study grants. There was some progress being made there…all of a sudden the talks stopped. They weren’t going to even fund any land use studies.”
According to Montague, the province repeatedly told the NCC that there would be no Muskrat Falls discussion between the two parties, until the federal government recognized the NCC’s land claim. But Montague believes that province wanted to avoid the complications of dealing with another aboriginal group.
“It’s much easier to work with one aboriginal group, then having to deal with two,” says Montague. “For a time we were blacklisted, as far as I can see, by Nalcor.”
But Gilbert Bennett, Vice President of the Lower Churchill project, denies such allegations.
“It’s categorically untrue,” says Bennett. “We were consulting with 10 aboriginal groups as part of our environmental assessments…those consultation requirements are clearly defined in the environmental assessment guidelines and were complying with those guidelines.”
Todd Russell, the current President of the NCC, agrees that the provincial government has been using the land claim argument to avoid meaningful discussion.
“I would say that’s a fair observation (by Chris Montague),” says Russell. “It’s been said by Premier Dunderdale on more than one occasion.”
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“In terms of relationship…the province was never genuine about consultation.”
Although the injunction against the NCC has been frustrating, Russell says it hasn’t drained the fight out of his people or himself. They will not give up, until they believe the province has respected their rights in regards to Muskrat Falls.
“We will continue with our on the ground activity…that’s a fact,” says Russell. “I’ve got people who are willing to lay down their lives…is that far enough? I hope we don’t come to that point, but that’s the government’s call, not mine.”
If the court rules in favor of Nalcor in the injunction hearing, Russell says he will respect that decision. But he can not imagine any Métis advocate using the “safe zone”, which Nalcor constructed more than 100 yards away from the access road for protestors.
“At this moment, we have no intention of being relegated and pushed aside…being told to be nice natives and go over there,” says Russell.
No matter what happens at the end of the injunction hearing, Russell believes the NCC will be playing a huge role in deciding the outcome of the Muskrat Falls project. Russell says those who believe Muskrat Falls is a done deal might be surprised.
“I don’t see a Muskrat Falls in the future, if they don’t respect the rights of the Metis people,” he warns. “It’s a damn long ways away. Anyone who underestimates us will do so at their own discredit.”
The road to consultation
Former NCC president Chris Montague and current president Todd Russell both say that there has been little consultation by Nalcor when it comes to the Muskrat Falls project. Nalcor records paint a much different picture. Even though consultation began in 2005 Nalcor released a record of correspondence between NunatuKavut Community Council and Nalcor in a document titled “NunatuKavut Community Council Consultation Labrador Island Transmission Link”. The document lists approximately 594 instances of emails, letters and meetings between NCC members and representatives of Nalcor.
Nalcor did not provide the correspondence between the NCC and Nalcor sighting confidentiality.
The process of consultation began February 2, 2009 with Nalcor sending correspondence to Chris Montague, then president of the NCC.
Records show that Montague did not respond to the letter and in April 23, 2009, Nalcor sent a second letter to Montague.
June 11, 2009 Nalcor representatives met with Montague but details of the meeting were not released.
June 17, 2009 to July 2, 2009 there were email exchanges between Nalcor, Montague and Dorothy Earle, general manager for NunatuKavut and a meeting later on July 2 between Nalcor, Montague, Earle, and Bruce Clarke, legal counsel.
After the meeting on July 2nd there were seven email exchanges between Nalcor, Bruce Clarke, Earle, and Tammy Lambourne, with correspondence to Montague.
Those emails and correspondence lead to Meetings on December 11, 2009 with Montague and a second meeting on January 20, 2010 with Montague, George Russell and Tammy Lambourne.
A third meeting was held on January 26, 2010 with Lambourne, George Russell and Roland Kemuksigak.
From January 27, 2010 to February 26, 2010 there were 10 email exchanges between Nalcor, Lambourne, George Russell, Glynes Penny, Lisa Dempster, Earle and Billie Dyson, this lead to a meeting with Chris Montague and 70 NCC members from February 28, 2010 to March 4, 2010.
Over the next two years there had been countless emails, letters, telephone calls and meetings between Nalcor representatives, the NCC and community members.
Fast forward to April 20, 2012 Nalcor sent correspondence to NCC elections candidate Todd Russell and, on May 4, 2012 a second letter was sent to him after he was elected. Russell responded on May 11, 2012.
From May 14, 2012 to June 14, 2012 there were 13 emails between Nalcor, George Mitchell, Research and Natural Resources Manager,and Greg Mitchell, NCC Senior Researcher. There was also a fax from Todd Russell and a letter from Nalcor to Todd Russell in response to the fax.
On June 25, 2012 there was a meeting with Todd Russell; there is no indication whether the meeting was in person or a conference call.
On July 5, 2012 Nalcor received a package from George Russell, Research and Natural Resources Manager, which was followed up by an email from him on July 30, 2012. Nalcor responded on July 30, 2012.
I don’t see a Muskrat Falls in the future, if they don’t respect the rights of the Metis people NCC president Todd Russell
On August 24, 2012 Nalcor sent a letter to George Russell, which Russell responded on September 24, 2012.
Then on September 25, 2012 Nalcor sent an email George Russell; there is no indication whether Russell responded.
Nalcor also released the Aboriginal Consultation Assessment report that lists nine Aboriginal Nations that were consulted as required by the Joint Review Panel (JRP) and the requirements as set out in the Environmental Impact Statement (EIS).
The 442 page document lays out Nalcor's effort to address the concerns of aboriginals and the issues they are facing.
The assessment says Nalcor considered the aboriginal communities in planning and carrying out the Lower Churchill Hydroelectric Generation Project.
Nine Aboriginal nations and groups that would be effected by the project are: in Newfoundland and Labrador, Innu Nation, NunatuKavut (formerly known as Labrador Metis Nation), and the Nunatsiavut Government, in Québec, the Innu communities of Pakua Shipi, Unamen Shipu, Nutashkuan, Ekuanitshit, Uashatmak Mani‐Utenam, and Matimekush‐Lac John. Subsequently, the Naskapi Nation of Kawawachikamach were all notified of the project.
The assessment said that Nalcor began consultation with NunatuKavut on the Muskrat Falls project in April 2007. Two years later in December 2009, Nalcor and NunatuKavut entered into an agreement to consultations for the Muskrat Falls project. The agreement provided money to NunatuKavut to assist the NCC in the consultation and to provide feedback to Nalcor regarding NunatuKavut’s concerns about the Project.
As a result of the monies provided, NunatuKavut hired a full‐time Project Coordinator, who was responsible for the agreement’s consultation and coordination, and acted as the primary point of contact between the two groups.
The agreement expired March 31, 2010.
The Labrador Metis Association was established in 1985, it was later changed to the Labrador Metis in 1998. In 2010, the name of the Labrador Metis Nation was changed to NunatuKavut. The Labrador Metis asserted a land claim in the region in the late 1980s. The area under claim is primarily in the south coast region of Labrador and questions remain to a claim in Northern Labrador. This claim, to date, has not been accepted for negotiation by the federal and provincial governments The asserted traditional territory of NunatuKavut includes southern and central Labrador.
The Aboriginal Consultation Assessment Report dealt with hunting, trails and camps, fishing, trapping , marine mammal harvesting, plant harvesting and territorial use within the Muskrat Falls project.
In the area of hunting a total of 24 big and small game hunting areas were identified by NunatuKavut in 2010. Out of those areas none appeared to be within the project area. In the area of Muskrat Falls, 12 trails were identified and used by NunatuKavut. 17 habitation sites identified by the Provincial Archaeology Office as “Settler” remains all pre-dated 1960. The assessment found, based on information provided by the NCC, that the preferred locations for fishing by the community include the general area of Lake Melville, Rabbit Island, Bob’s Brook, Traverspine River, Mud Lake, Metchin River, Muskrat Falls and Gull Island. Out of that, five are within the Muskrat Falls Project.
In 2010, NunatuKavut identified areas used for trapping. Although none appeared to be in the area of the Project, NunatuKavut made reference to the existence of its members trap lines in the lower Churchill River valley. Nalcor offered to cover the trappers’ losses or damage because of the project. The assessment found that the claim by NunatuKavut for marine mammal harvesting and plant harvesting did not appear to be in the project area.
NunatuKavut expressed concerns about the adverse effects of the Project on Aboriginal Peoples and their rights, titles and interests. They also felt that the archaeological digs led by Nalcor were inadequate and gave an advantage to Nalcor. NunatuKavut said they were not consulted about the origin of artifacts and expressed their interest in gathering, compiling and organizing information about themselves.
Nalcor responded saying they conducted archaeological studies with qualified professionals throughout the Project area.