The Nunatsiavut government lost in both the Newfoundland Supreme Court and the Federal Court of Canada when it challenged the federal government’s duty to consult and accommodate on the Muskrat Falls hydroelectric project in Labrador. (The Nunatsiavut government is the Inuit government that emerged from the Labrador Inuit Land Claim Agreement in 2005.) The Nunatsiavut government’s focus was on the downstream effects of the project that will result in rising counts of methyl mercury in fish and other animals that the Inuit depend on. A study led by researchers from Harvard University (chapter 6 of this document published by the Nunatsiavut government) concluded that mercury levels in fish would indeed rise as a result of this project.
The proponent, Nalcor Energy — the utility in Newfoundland and Labrador charged with developing the project — appeared to be ignoring Harvard data when it decided to take the risk, regardless of what may happen as a result of increased levels of mercury in the food chain. It reminds one of the “exploding Pintos”: the Pinto was a car made by the Ford Motor Company in the 1970s, whose gas tanks were known to explode when the vehicle was hit from the rear. Ford made a conscious decision to handle the risk by keeping the cars on the road, because it was cheaper to pay out damages in personal injuries than to do a massive recall. Ford eventually did do a recall, however, and the topic has been studied often from the standpoint of business and legal ethics.
Surely Nalcor and the Crown didn’t go down that road during the project assessment stage on the methyl mercury issue, did they? Did Nalcor conclude that the risk of contamination would be cheaper than carrying out mitigation measures proposed by the Inuit — to clear the reservoir of all tress and vegetation before flooding? The Inuit say the clearing of trees and vegetation will “make Muskrat right.”
It is important to remember that the Inuit are not necessarily against a renewable resource development like Muskrat Falls, but they do believe that the proponent’s approach to date has been reckless and that Nalcor has paid little regard to the concerns raised by people who live in the area.
But I think something else is going on here as well. The Inuit have been left out of any impact benefits agreement (IBA) related to the project. While an IBA was reached with the Innu of Labrador as part of the Muskrat Falls deal, no such courtesy was extended to the Inuit. IBAs typically provide for initiatives that give Indigenous people living adjacent to the project the first chance at jobs, training, and supply-chain business opportunities, as well as revenue-sharing. These agreements are meant to be a “good faith” effort on the part of the proponent and the Indigenous groups to work together to ensure benefits are fairly apportioned.
While the project’s footprint may not be on Inuit lands as defined in the land claim agreement, it is still located on land that the Inuit have used for centuries and have never ceded to anyone. Its downstream effects will impact the Inuit.
The federal government is on the hook in a big way in this project through its loan guarantees on the initial investment of the $6 billion or so and, most recently, an additional $2 billion. Construction costs have doubled since the project began.
If the federal government is serious about reconciliation, it should have attached a strict condition to the loan guarantees that the province and Nalcor must come together with the Inuit of Labrador to address the environmental concerns from a sustainability perspective, as well as negotiating an impact benefits agreement with the Inuit.
They should open discussions to do so now. It is never too late to treat people with the respect they deserve.
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