This province has an abysmal track record when it comes to court cases. Just think about it. There’s the Water Rights Reversion Act, struck down by the Supreme Court of Canada in 1984.
There’s the Abitibi cleanup challenge, rejected in Québec a couple of years ago.
Then there’s the appeal for a review of the Québec energy regulator’s rulings, rejected by Québec’s Superior Court just last week.
So, when someone launches a court case about anything relating to this province, the knee-jerk reaction is to brace oneself. Then again, the Red Sox did finally break the Curse of the Bambino.
Right now, the Muskrat Falls project is facing legal challenges on at least three fronts. Two aboriginal groups in Labrador — the Nunatsiavut government and the Nunatukavut Community Council — are challenging the project over an alleged lack of consultation. And Hydro-Québec has asked for legal clarity of its contractual rights concerning Churchill Falls, which may affect the feasibility of Muskrat Falls.
Specifically, the native groups are challenging the permit to build the dam issued by the Department of Fisheries and Oceans.
The strength of their arguments may vary in each case, but at least one challenge, namely that of Nunatsiavut, may prove interesting.
The Inuit-based authority claims that its members face environmental challenges if the project goes ahead. For one thing, the dam may cause mercury levels to rise in the Lake Melville area.
But the crux of the argument is that, in any case, they were not consulted.
While the level of consultation between the proponent and other native populations can be debated, the company did not appear to conduct direct consultations with the Nunatsiavut leadership.
This lack of consultation was highlighted in the federal-provincial joint review panel report.
“(In) its submission to the panel, the Nunatsiavut government argued that the proponent has failed to demonstrate an understanding of the interests, values, concerns and issues facing Inuit people, in spite of over 2,300 Inuit living within the Project Assessment Area, of historical and current use of the Churchill River by Inuit, and of Inuit having been the primary users of the Lake Melville ecosystem for a long period of time.”
The panel was doubtful of Nalcor’s assurances that the dam would have no impact further downstream.
“Through the course of the review, the panel concluded that this prediction was less certain, because of new information regarding the downstream extent of mercury impacts from the Churchill Falls project and concerns raised about the lack of baseline information on existing mercury body burdens.”
The panel clearly saw a gap when it came to consultation with native groups — especially Inuit. Whether that lapse is glaring enough to force an injunction remains to be seen.
One should take note, however, that the panel findings overall do not reflect a total rebuff of native concerns.
In its report on the Labrador-Island Transmission Link, the panel noted how aboriginal concerns did spur certain design changes.
“For example,” the report stated, “early project design included a sea electrode in the Lake Melville area. However, further to consultation with aboriginal groups, the electrode was moved to L’Anse au Diable, Labrador, in the Strait of Belle Isle, eliminating the potential for impacts to Lake Melville.”
Nalcor was also credited with rerouting the transmission line to avoid hunting grounds and other sensitive areas.
How much consultation is enough?
Seems that’s up to the courts to decide.