NunatuKavut appealing court decision

Ashley Fitzpatrick
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Aboriginal group says court ruling heavy-handed

Todd Russell

The NunatuKavut Community Council says it is not prepared to back down on its protests against the Muskrat Falls hydroelectric development.

The council is continuing to encourage members to “exercise their aboriginal rights on their traditional lands,” according to a statement issued Monday morning. It is appealing an injunction issued by the Supreme Court of Newfoundland and Labrador Nov. 28, 2012.

That court order stated protest activities were not to come within 50 metres of the Muskrat Falls work site, near Happy Valley-Goose Bay.

It also established a “safety zone” for protesters — an area identified as a safe distance from the worksite where protesters can continue their demonstration in the vicinity without compromising safety.

The NunatuKavut council argues the order was heavy-handed and too broadly worded.

The wording led to questions from senior members of the NunatuKavut Community Council and ultimately, council president Todd Russell told The Telegram, the court amended its ruling just three days after it was issued.

The stipulation that members stay 50 metres from the worksite was to apply to all lands associated with the project, he said, meaning the buffer zone would cross the Trans-Labrador Highway. In consideration of this, it was decided “incidental use” of these highway areas would no longer be covered by the court order.

Yet the permanent order continues to cover too much, Russell argued.

“The action we took (on Oct. 10, 2012 leading to the order) was adjacent to the access road of the (main) worksite,” he said. “The court injunction would now apply or seems to apply to everywhere Nalcor applies for a piece of land in relation to the Muskrat Falls project.”

That will mean, he argued, access is denied to areas used for a broad range of traditional activities, including hunting, trapping, fishing and gathering.

“This is not something that lasts for a month, two months or even two years ... it is in permanent effect,” Russell said.

There has been continuous argument over consultation on Muskrat Falls between the aboriginal group and both the provincial government and project proponent Nalcor Energy. The council has said consultation on the project has not been in good faith or met an acceptable level.

The latest court action comes on the heels of a separate loss for the NunatuKavut council in Federal Court, where the judge tackled the consultation issue.

“The honour of the Crown does not require that the consultation be perfect; it must be conducted in good faith and it must be meaningful. The consultations here have been both,” Justice Robert Stack said.

Meanwhile, Russell said people should expect a combination of further legal action and, on the ground, protests from his membership.

“This is not going to stop because of some so-called sanction decision that was made in mid-December,” he said.

In response to questions, Nalcor Energy provided The Telegram with a statement.

“The injunction allows Nalcor Energy to continue its site construction work at Muskrat Falls without interruption, and enables protesters to continue any demonstration in the vicinity without compromising their safety and the safety of Nalcor’s employees and contractors,” said Lower Churchill project lead Gilbert Bennett.

The statement went on to say the company is aware of the appeal to the November injunction and Nalcor will not comment further as the matter is now before the courts.

afitzpatrick@thetelegram.com

Organizations: NunatuKavut Community Council, Supreme Court, Federal Court

Geographic location: Muskrat Falls, Newfoundland and Labrador, Happy Valley Goose Bay

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Recent comments

  • Molly
    January 12, 2013 - 22:20

    Who is paying for , the tax payers????

  • Maggy Carter
    January 09, 2013 - 11:37

    Why, Marilyn, is that where you are? If so, I hope you're there because you were standing up for a principle, for the environment, for the right to express yourself. Personally I find indifference and apathy more offensive than someone out protesting for a cause - whether you believe in their cause or not. There are a great many things wrong with the delivery of social and economic supports to native peoples in Canada, but those flaws do not negate the underlying principle that the people who occupied this land before us - and who suffered enormously because of it - deserve some special considerations and enjoy some special protections under law. Criticize the mishandling of funds by government and native leaders by all means (I do) but don't begrudge them the means to regain their independence, dignity and sense of purpose.

  • Concerned
    January 08, 2013 - 12:32

    Some more hope, thanks FinTip. It was only last night that I was wondering about that arsehole John Smith, back out of his hole. I have my fingers crossed.

  • FINTIP
    January 08, 2013 - 11:20

    To the group behind the alias John Smith: Your comments which were meant to demean and undermine the NunatuKavuk community of Labrador are not only prejudicial - they are wrong in fact and in law. You assert that the NunatuKavut are not recognized as an aboriginal group and are no different than any other citizen of the province. Indeed Metis people are recognized as aboriginal peoples under Canada's constitution. The only issue that had been outstanding is whether they fell under federal or provincial jurisdiction. If the former, then of course as with other First Nations people, the government of Canada would have to engage the Metis in land claims, treaty rights and resource development impacts. If you look to the headlines of today's Telegram, Globe and Mail, National Post, etc., you will see that that issue has now been resolved by the the Federal Court of Canada. Justice Michael Phelps has just re-affirmed that Métis and other non-status Indians qualify as “Indians” under the 1867 Constitution Act and that responsibility for negotiating with these groups rests with the Government of Canada. You and others will no doubt find this disappointing but - now that it is the law of the land - NALCOR and government will be forced to undertake meaningful consultations with the NunatuKavut before proceeding further with the Muskrat development. The decision will also weigh heavily on the NunatuKavut appeal regarding its right to protest at the Muskrat Falls site. But look on the bright side John, your job as a paid toad for disseminating disinformation on Muskrat Falls is safe for a while yet.

  • Maggy Carter
    January 08, 2013 - 10:32

    NALCOR has learned the whack-a-mole game very well. As soon as someone whacks it over the head, up pops its puppet mole John Smith. If you whack Smith over the head, then up pops another of his aliases like God Guard Thee NL. This past weekend, Smith was on here protesting that he has no relation with the PC party, no relation with NALCOR, no relation with anyone connected to Muskrat. I'm not sure, but he may have said that he never even had a mother - which would sound about right. Smith disputed the Telegram's story that there was a conspiratorial cabal on the eight floor of Confederation Building trolling all the newspapers and radio stations with the intent of belittling anyone who dared criticize this province's greatest boondoggle ever. But the public are pretty good at smelling a rat - or in this case a muskrat. Look at the timelines of the posts below. Within a couple of minutes of the post from FINTIP, John Smith responds with his rant against Todd Russell and Labrador natives. They should all be thrown in jail as far as Smith is concerned. It is a thinly disguised attempt by NALCOR to invite a public backlash against aboriginal groups who might think they have any say in how, or whether this Muskrat fiasco goes ahead. We owe our thanks to the 'deep-throat' within the PC government who was brave enough to send evidence of the eight floor disinformation conspiracy to the Telegram. We can only hope he will follow-up soon with the identity of John Smith and his handlers.

  • darren
    January 08, 2013 - 10:22

    Why do aboriginal children get free university education and I have to pay $25000 for my child to get his degree? Why do aboriginal children get free braces for their teeth and I have to pay $5800 for my child's braces?

    • GradyGirl
      January 09, 2013 - 10:03

      Darren, before you make such statements, you might want to check your facts. University education is not "paid", even if you qualify for partial subsidy you have to do the work to prove that you deserve "paid education". If you are lucky enough to receive subsidy, guess what, yoiu still have to get students loans, which any subsidy you receive is deducted! As for braces, my husband, who is a full Status Indian, did not gey our childrens braces paid for. It also cost me over $6000 each child. GET YOUR FACT STRAIGHT before you decide to mouth off!!!!!!

  • John Smith
    January 08, 2013 - 08:17

    A group of individuals, with no status, no recognition as an aboriginal group, no different than any other citizen in the province, wants to tresspass on private property.I hope they throw the works of them in jail...as they would with you or me. Why are they different then me? Why are they so special?In the end the project will go ahead, and no one will remember who Todd Russell was...

    • Marilyn Pardy
      January 08, 2013 - 15:09

      Will be seeing a lot of you in jail then I guess!

  • FINTIP
    January 08, 2013 - 08:15

    Having read the text of Justice Dymond's decision of October 17, 2012, (Docket: 201201G5232), I must admit that I am underwhelmed by the rigor and strength of his analysis. The Canadian Charter of Rights and Freedoms protects the right of free expression (2b) and the right of peaceful assembly (2c). Whether for native peoples or for other Canadians, the right to be present and to engage in peaceful protest at the main gates leading to the Muskrat site derive from one or both of these charter protections. Inherent in such expression is some element of confrontation - peaceful, non-threatening confrontation to be more precise. (A prerequisite to the act of protest is that there be someone against whom the protest can be directed; otherwise the act is rendered moot.) Also implicit in such rights is that the act of protest may cause some inconvenience, delay or even cost to the persons toward whom the protest is directed. It is interesting that Dymond cited NALCOR's right to be free of inconvenience, disruption and cost as his primary reason for granting the injunction. The safety of workers followed next, and lastly the safety of protestors. Canadian courts are said to have adopted a 'purposive' interpretation of Charter rights - in effect, erring in favour of a generous as opposed to restrictive affirmation of access. This generosity was not evident in Dymond's decision. Moreover, native peoples in Canada enjoy protections that in some cases exceed those contemplated in the Charter. Section 25 of the Charter makes clear that these special rights cannot be over-ridden, diminished or extinguished by the Charter. The precedence of these rights is entrenched under section 35 of the Constitution Act of 1982. Among other things, it invokes a principle known as the 'Honour of the Crown' that imposes a higher standard of duty on government when dealing with native peoples. Section 35 protections, which extend to the NunatuKavut peoples of Labrador, have been cited by Canada's high court in deciding issues relating to resource developments that impact, or might impact, aboriginal lands or lands claimed by aboriginal peoples. (The claim need not be proven.) In the case of Taku River Tlingit First Nation v. British Columbia, for example, Justice Beverly McLachlin upheld the First Nation's appeal ([2004] 3 S.C.R. 550), to wit, "on the spectrum of consultation required by the honour of the Crown, the (First Nations applicant) was entitled to more than minimum consultation under the circumstances, and to a level of responsiveness to its concerns that can be characterized as accommodation." These considerations represent potential avenues of appeal of Dymond’s decision by the NunatuKavut council. (They also have implications for the manner in which government addresses concerns relating to Muskrat by the Nunatsiavut peoples in Labrador.) It is highly likely that the appeal court will at least modify the existing order to render it less restrictive. All that said, one wonders how effective such protests are likely to be in the wilds of Labrador. It would seem that a venue closer to NALCOR’s corporate offices in St. John’s, or the House of Assembly, or even the Parliament of Canada, would better accommodate the objectives of aboriginal groups with respect to the development of Muskrat Falls.