Ontario Muskrat
Solidarity Coalition
PO Box 2121, 57
Foster Street
Perth, ON K7H
1R0
Submission to the Commission of Inquiry
Respecting the Muskrat Falls Project and the interpretation of Terms of Reference
February 14, 2018
Commissioner Richard LeBlanc
5th Floor, Suite 502, Beothuk
Building
20 Crosbie Place
St. John’s, NL A1B 3Y8
Dear Commissioner LeBlanc,
The Ontario
Muskrat Solidarity Coalition is a network of individuals and groups who, in
working closely with the Labrador Land Protectors and the Grand Riverkeeper,
engages in educational outreach and pubic advocacy regarding the major concerns
that have been raised regarding the Muskrat Falls megaproject.
By way of
introduction, our membership is composed of individuals who have developed
close ties over many years with members of Nunatsiavut, Nunatukavut and the
Innu Nation, as well as individuals who are members of those nations currently
living outside of Labrador. While many Coalition members have long been
involved in prioritizing Indigenous rights, newer members come to this work
inspired by the Calls to Action of the Truth and Reconciliation Commission to
seek right relations, as well as the legislative attempts to adopt and
implement the United Nations Declaration on the Rights of Indigenous Peoples,
UNDRIP (Private Member’s Bill C-262, currently before Parliament).
Framework of the Inquiry and Multi-Lens
Approach: UNDRIP, the Democratic Deficit, Consideration of a Terms of Reference
Re-Set, and Grass Roots Voices
We wish to
state at the outset our disappointment at the extremely limited terms of
reference for this Inquiry, which appear slanted towards largely financial and
technical considerations. While important inasmuch as the impact of the Muskrat
Falls megaproject will be borne most by the poorest residents of the province,
the terms of reference as currently written fail to incorporate the very human
concerns raised by members of Indigenous nations, from the disappearance of
sacred sites and the very real potential for destruction of a traditional food
web that has existed since time immemorial to the well-established risk of mass
drowning via catastrophic dam break.
While
non-Indigenous Labradorians share similar concerns as well, our focus here is
to urge this Inquiry to view its mandate through an UNDRIP lens. As a result,
we urge this Inquiry to determine at the outset that its terms of reference
require a complete re-set given the failure to properly consult Indigenous
peoples about the terms of reference in an open, transparent fashion whereby
all Indigenous peoples affected by the project would have been consulted prior to the Inquiry’s announcement. It
would serve this Inquiry well to consider a re-set of the terms of reference
following a consultation with Indigenous peoples from the grass roots Labrador
Land Protectors and traditional decisionmakers to elected leadership. Nothing
less is acceptable when a commitment to truth and reconciliation is supposed to
be the basis of respectful nation-to-nation relationships. Failure by the NL
government to properly consult Indigenous peoples regarding the terms of
reference does not absolve the Commissioner of the same responsibility. Indeed,
engaging in this consultation would not only show good faith on the part of the
Inquiry, but also build some much-needed trust (and possibly avoid the delay
caused by litigation challenging a failure to consult).
We also
believe that the Inquiry must take note of and be informed by another lens, the
democratic deficit which led to its creation in the first place. Throughout the
history of the Muskrat Falls megaproject, issues of accountability,
transparency, democratic decisionmaking – where they exist at all – have only
come about as a result of intensive grass roots actions that have been met with
draconian measures, from the criminalization and jailing of Labrador Land
Protectors to the ongoing enforcement of a broad injunction. Indeed, the
Independent Expert Advisory Committee (IEAC) exploring the issue of
methylmercury poisoning, for example, only arose out of a painful hunger strike
and peaceful occupation of the work site, among many other public actions. This
proposed Inquiry needs to address the issues that have been raised by bloggers,
land defenders, and concerned residents through tireless advocacy efforts. In
addition, it is only as a result of proactive truth-seeking by individuals and
non-governmental organizations that some of the documents that should be
considered by this Inquiry – especially the engineering analyses by Stig
Bernander on North Spur instability and methylmercury poisoning by Harvard
University – were commissioned to assist in filling in the information gaps
that the project proponents (Nalcor, government of Newfoundland and
Labrador) refused to adequately address.
In the above
context, this Inquiry must prioritize those grass roots voices whose dedicated,
persistent advocacy has made the Muskrat Falls megaproject the subject of an
Inquiry in the first place: Indigenous Elders, Mud Lake flood victims,
criminalized Land Protectors, concerned citizens fearful for their lives, and
low-income individuals facing eviction in light of doubled or tripled hydro
rates.
An Inquiry in a Vacuum
We are also
disappointed that even though the language of some of the Terms of Reference
clearly outlines some significant and urgent concerns raised by the Muskrat
Falls megaproject, the Inquiry will be proceeding without a suspension of the
project. We feel that the only way to build confidence in the Inquiry is to
have construction halted pending the outcome of the Inquiry. While we
understand it is beyond the Inquiry’s current mandate to call for a suspension
of the project, we believe it is critical for the Inquiry to have as a core
operating assumption that something is very wrong with a study whose
recommendations will only likely be delivered at the completion of a project,
despite the many risks still unaddressed by Nalcor and the provincial and
federal governments. Those risks are real and pressing, from Indigenous people
reliant on country food who are now fearful of being poisoned to Mud Lake
residents fearful of another round of flash floods to anyone downstream who
fails to comprehend how last week’s significant landslide can be dismissed by
Nalcor as having no effect on or relation to the project.
How can this
Inquiry proceed with confidence that its time is well-spent and its
recommendations will be heeded if the project being studied continues to barrel
ahead full steam, despite, among many, many unresolved issues, the
uncontradicted findings of the Harvard methylmercury study, and the absence of
a truly independent study on the instability of the North Spur?
To use an
analogy that puts the Inquiry’s position into proper perspective: a train is
racing down the track towards a cliff. Any objective observer can see the
cliff, and the train’s driver is ignoring all the scientific evidence,
engineering reports, and internal documents that predicted the train would run
off the cliff if it were not stopped. One can either pull the brakes on the
train to prevent the potential for catastrophe, or one can initiate a study on
whether certain financial issues and decisionmaking that put the train in such
peril in the first place was done without proper authorization or due diligence
(as the train drives over the cliff).
The Muskrat
Falls megadam is that train racing down the tracks. The human cost of this
potential train wreck is beyond measure. The cloud of that uncertainty, that
fear, that despair, hangs over this Inquiry as long as the project being
studied does not apply the brakes pending your findings. The failure of the
government of Newfoundland and Labrador to exercise the precautionary principle
in this instance (applying the brakes) when the mounting evidence screams out
for it, creates a metaphoric framework of futility for the Inquiry that could
very much discourage participation from those who see no point in taking part
when it would appear the outcome of the project is now a fait accompli and the work of this Inquiry mere window dressing
that may be useful for future scholars of poor decisionmaking.
Critically,
if the Terms of Reference are indeed subject to the much-needed re-set through
an UNDRIP lens as stated above, part of that new mandate could very well
consider the need for a suspension of operations based on compelling evidence
and justified by the much-needed application of the precautionary principle.
In any event,
another lens through which this Inquiry must interpret its terms in as broad
and generous a fashion as possible is that of the precautionary principle, a
touchstone of environmental law and a norm of customary international law, as
recognized by the Supreme Court of Canada (114957 Canada Ltée (Spraytech, Société d'arrosage) v. Hudson
(Town), [2001] 2 SCR 241), in which it referenced the Bergen
Ministerial Declaration on Sustainable Development (1990) and declared:
Scholars have documented the precautionary principle’s
inclusion “in virtually every recently adopted treaty and policy document
related to the protection and preservation of the environment” (D. Freestone
and E. Hey, “Origins and Development of the Precautionary Principle”, in D.
Freestone and E. Hey, eds., The Precautionary Principle and International
Law (1996), at p. 41. As a result, there may be “currently sufficient state
practice to allow a good argument that the precautionary principle is a
principle of customary international law” (J. Cameron and J. Abouchar, “The
Status of the Precautionary Principle in International Law”, in ibid.,
at p. 52). See also O. McIntyre and T. Mosedale, “The Precautionary Principle
as a Norm of Customary International Law” (1997), 9 J. Env. L. 221, at
p. 241 (“the precautionary principle has indeed crystallised into a norm of
customary international law”).
In order to achieve sustainable development,
policies must be based on the precautionary principle. Environmental measures
must anticipate, prevent and attack the causes of environmental degradation. Where
there are threats of serious or irreversible damage, lack of full scientific
certainty should not be used as a reason for postponing measures to prevent
environmental degradation.” (emphasis added)
The threat of
serious and/or irreversible damage is already well-documented with respect to
methylmercury poisoning and North Spur instability, from the original joint
provincial/federal panel through the Harvard and Bernander studies. The Inquiry
cannot proceed without a serious recognition of this threat, which is why our
call for a re-set for the Terms of Reference following proper consultation with
all affected Indigenous peoples, and a subsequent suspension of operations at
the Muskrat Falls megaproject pending a re-set Inquiry’s findings, would make
the most sense, and dovetail with the need to respect the precautionary
principle.
Lack of Proper, Ongoing Consultation
In addition, NL and Nalcor’s consultation with Indigenous peoples appears
to have been based on an impoverished definition of “consult” ( see The Government of Newfoundland and
Labrador’s Aboriginal Consultation Policy on Land and Resource Development
Decisions, April, 2013) that fails the well-established test of the UN
Declaration on the Rights of Indigenous Peoples (UNDRIP) in seeking free,
prior, and informed consent, and in recognizing that consent is not a fait accompli, but rather part of a
process of ongoing dialogue and negotiation that allows for change of
circumstances, introduction of new information, and the ability of Indigenous
people to withdraw consent.
The provincial government’s
policy statement declares “NL desires a practical consultation process that helps to ensure that land
and resource development decisions minimize or, where reasonably practicable,
eliminate potentially adverse impacts on asserted rights. NL also aims to
maintain, foster and improve effective working relationships among Aboriginal
organizations, project proponents and NL.” The
experiences of Indigenous-led groups such as the Labrador Land Protectors can
attest to the fact that this policy statement has been consistently violated
over the past half decade, whether through a persistent refusal to meet and
meaningfully address concerns, the criminalization of peaceful acts of land
protection, the judicial stifling of voices of opposition, and policies that
fail to eliminate adverse impacts.
Critically, among NL’s guiding principles, #10 states:
“This Policy and any form of Aboriginal consultation
conducted by NL or its delegates, does not constitute acceptance or recognition
of asserted rights. The process of consultation does not create any Aboriginal
or treaty rights.”
The provincial government’s consultation is not meant
to achieve consent and a harmonious working relationship; it is simply to take
into consideration certain views without providing Indigenous people a say in
the final outcome of the project. This Inquiry, in dealing with Indigenous
issues, must employ the broader and more generous lens of consultation and
consent as provided by UNDRIP.
Recommendations
Given the
manner in which this Inquiry has been limited in terms of scope, as well as the
questionable utility of its findings given that there has been no suspension of
construction pending tour conclusions, we are calling upon you to interpret the
terms of reference in as broad and generous a manner as possible to allow for
the inclusion of voices that appear to have been excluded from the Terms of
Reference. Toward that end, we are calling on you to re-set the Terms of
Reference after engaging in a proper, UNDRIP-informed consultation with those
Indigenous voices who have clearly not been heard, as evidenced by the limited
consideration they are given under the current framework. As currently set out,
the Terms of Reference appear to be flawed by an apparent apprehension of bias
that favours and limits the potential liability of the government which called
the Inquiry and set those terms absent proper consultation with all affected
parties.
Recommendation 1: We believe the Commissioner
must agree to a re-set of the terms of Reference, and should engage in a
process of UNDRIP-informed deep consultations with Indigenous peoples at all
levels (from elected leadership to grass roots land defenders, elders and
traditional decisionmakers) to ensure that concerns specific to their lives
(and the serious, multiple threats posed to their lives by the Muskrat Falls
megaproject) are included in the Terms of Reference for this Inquiry. The lens
of UNDRIP (as elucidated in part below) will be of assistance in this regard,
as will current Canadian and international jurisprudence with respect to the
duty to consult and to seek free, prior, and informed consent.
Recommendation 2: We believe the Commissioner
should broadly and generously interpret Section 5 (“participation in the Inquiry by the established
leadership of Indigenous people, whose settled or asserted Aboriginal or treaty
rights to areas in Labrador may have been adversely affected by the Muskrat
Falls Project”) to include any and all members of Indigenous
nations affected by the project, and not simply those who hold elected
positions. We also believe that this same principle of inclusion should be extended
to the voices of non-Indigenous Labrador residents affected by this project.
This recommendation may well inform the Commissioner’s response to
Recommendation #1.
Such consideration must include a view of all aspects
of the Muskrat Falls megaproject through an UNDRIP lens. This should include
consulting experts on UNDRIP, as well as exploring the failure of the NL
government, the federal government, and NALCOR to recognize the obvious trigger
points for deep consultation not just with Indigenous government leaders, but
with traditional decisionmakers as well as those voices of the Labrador Land
Protectors whose views have not been properly represented by their governments.
The Commissioner must question whether all Indigenous people affected were allowed
an open, transparent process to achieve free, prior and informed consent not
only at the project’s outset, but throughout its development as it continues to
proceed through the life of the Inquiry.
The Commissioner must hear from the voices of Indigenous
people who feel that their voices have not been properly consulted not only by
the NL and NALCOR, but by their own leadership as well. It should also consider
the very real possibility that the effects of the Muskrat Falls megaproject
could result in an act of genocide, as defined by the Convention on the
Prevention and Punishment of the Crime of Genocide (Article 2b, “Causing
serious bodily or mental harm to members of the group”; 2c, “Deliberately
inflicting on the group conditions of life calculated to bring about its
physical destruction in whole or in part”; 2d, “(d) Imposing measures intended
to prevent births within the group”.) While the Genocide Convention speaks of
deliberate action, an argument could well be made that willful blindness to the
effects and consequences of one’s actions, especially in light of compelling
evidence of impending harm, does not provide immunity from liability.
The Inquiry should also consider how the longstanding
legacies of colonialism and settler-state divide-and-rule policies have been
used to silence particular voices in communities that would otherwise be
speaking out.
Where
the potential infringement of asserted Indigenous rights is high and the risk
of non-compensable damage is similarly significant, deep consultation aimed at
finding a satisfactory interim solution is required. Consultation must be a
meaningful dialogue. But neither should Indigenous people be obliged to
participate in a process that does not allow for a good faith attempt for the
parties to understand one another's concerns. Deep consultation includes the
opportunity to make submissions, formal participation in the decision-making
process and the provision of written reasons to show that Indigenous concerns
were considered and the impact they had on the decision. Responsiveness is a
key requirement of both consultation and accommodation.
Despite
the legal obligation for the Crown to consult with Indigenous peoples when
contemplating or undertaking activities that may affect their rights, Nalcor,
NL and the federal government have
specifically excluded certain groups of Indigenous people from any ongoing
consultation, even though they are owed the duty to consult in good faith.
The
Inquiry must hear directly from witnesses who can attest to the failure of the
provincial government of NL, NALCOR, and the federal government to engage in
deep, ongoing consultation.
As
a means of helping answer some of these probing questions, the Inquiry needs to
respect the underlying purposes of UNDRIP, including, but not limited to:
Recognizing
the urgent need to respect and promote the inherent
rights of Indigenous peoples which derive from their
political, economic
and social structures and from their cultures,
spiritual traditions,
histories and philosophies, especially their rights to
their lands,
territories
and resources,
Convinced that control by Indigenous peoples over
developments
affecting them and their lands, territories and
resources will enable
them to maintain and strengthen their institutions,
cultures and traditions,
and to promote their development in accordance with
their
aspirations
and needs.
The Commissioner also needs to hear from affected individuals to determine
how the following, non-exhaustive articles of UNDRIP have been violated by NL,
Nalcor (and, by extension, the federal government, the biggest financial player
in Muskrat Falls). Should the Inquiry consider the use of an UNDRIP lens,
further assistance can be provided with expert witnesses to explore issues of
consent through Canadian and international jurisprudential contexts for which
space considerations here do not presently allow.
Article 7: Indigenous individuals have the rights to
life, physical and mental integrity, liberty and security of person.
Article 8: (1) Indigenous peoples and individuals have
the right not to be subjected to forced assimilation or destruction of their
culture. (2.) States shall provide effective mechanisms for prevention of, and
redress for: (a) Any action which has the aim or effect of depriving them of
their integrity as distinct peoples, or of their cultural values or ethnic
identities.”
Article 11 (1.) Indigenous peoples have the right to
practise and revitalize their cultural traditions and customs. This includes
the right to maintain, protect and develop the past, present and future
manifestations of their cultures, such as archaeological and historical sites,
artefacts, designs, ceremonies, technologies and visual and performing arts and
literature.”
Article 18: Indigenous peoples have the right to
participate in decision-making in matters which would affect their rights,
through representatives chosen by themselves in accordance with their own
procedures, as well as to maintain and develop their own indigenous
decisionmaking institutions.
Article 25: Indigenous peoples have the right to
maintain and strengthen their distinctive spiritual relationship with their
traditionally owned or otherwise occupied and used lands, territories, waters
and coastal seas and other resources and to uphold their responsibilities to
future generations in this regard.
Article 32: States shall consult and
cooperate in good faith with the indigenous peoples concerned through their own
representative institutions in order to obtain their free and informed consent
prior to the approval of any project affecting their lands or territories and
other resources, particularly in connection with the development, utilization
or exploitation of mineral, water or other resources.
Recommendation 3
The whole of this Inquiry must
ask why the precautionary principle did not seem to be applied as the project
was approved and went forth, especially in light of the NL government and
Nalcor’s collective failure to institute the findings and recommendations of
the joint provincial panel, SNC-Lavalin’s own internal analysis, the Harvard
and Bernander studies, and other assorted reports that were inevitably
commissioned by citizens themselves when the proponent and its supporters
failed to provide proper analysis and justification for key decisions. The
Inquiry must determine whether this failure to apply the precautionary
principle has unnecessarily placed Indigenous and non-Indigenous lives in
jeopardy.
Conclusion
As
noted above, the Inquiry must undertake a re-set of the Terms of Reference that
includes a proper, UNDRIP-informed consultation with all Indigenous peoples
affected by the Muskrat Falls megaproject.
As part of a re-set, this Inquiry must consider the need to press for a
suspension of construction at the Muskrat Falls megaproject pending the outcome
of the Inquiry’s findings, whose utility becomes questionable should
constructed not be halted.
The
Inquiry must approach all of the issues within its current (and hopefully re-set)
mandate – and also provide a generous and broad interpretation of those terms –
with a multi-lens approach that incorporates questions about compliance with
UNDRIP principles and the failure to proceed with the precautionary principle
as a foundational operating guide; that considers expanding as widely as
possible to include the Indigenous and non-Indigenous grass roots voices who
have been ignored and cast aside as a result of the NL government’s and NALCOR’s
democratic deficit; and that considers seriously and, where possible, acts upon
the political conundrum in which it finds itself studying a project that is
likely to reach a completion stage that, absent a suspension of operations,
will mean the Inquiry’s recommendations may have no beneficial effect or
positive impact.
Submitted
by
Matthew
Behrens
Ontario
Muskrat Solidarity Coalition
