Innu of Ekuanitshit launch court appeal

Federal Court decision on Lower Churchill being challenged

Published on May 30, 2013

The Innu Council of Ekuanitshit has filed an appeal to a Federal Court decision stating, despite the court’s finding, its people were not properly consulted on the Lower Churchill hydro development and their concerns of environmental impacts not fairly addressed.

The appeal was filed May 24.

The Innu Council of Ekuanitshit is based in Mingan, Que. and claims for its people traditional territory and land use extending to the Churchill River project area.

In this case, through the council, the Innu of Ekuanitshit have objected to what they characterize as a lack of proper consultation and accommodation of their rights through the findings of the project environmental assessment and specifically of the joint provincial-federal environmental review panel.

They have also objected to the scope of the environmental review, highlighting the inclusion of Gull Island with the proposed dam at Muskrat Falls. With no proposed start date, the group has referred to the Gull Island development as the “sword of Damocles” — able to move ahead without further review.

As The Telegram has previously reported, the written decision dated Apr. 24, Justice André Scott dismissed their case.

"It is clear in the jurisprudence that the duty to consult does not imply a duty to agree," Scott wrote.

He pointed to timelines as a factor in his decision, saying the Innu had been given years to appeal the scope of the environmental review before it was undertaken.

The Innu people were provided a translation of Nalcor's detailed environmental impact statement in a Quebec dialect of Innu-aimun. They were able to directly present their own information to a federal-provincial joint review panel, as hearings made their way through Quebec, having received funding under a Canadian Environmental Assessment Agency participants program.

"In conclusion, this application is dismissed because the applicant was adequately consulted, mitigation measures addressed its concerns with respect to its usage of the territory in the project area and, in any case, the scoping issue is statute barred," Scott stated.

In a written statement on their appeal, the Innu Council of Ekuanitshit have claimed Scott’s ruling “contains errors of fact and law on key issues.”

The group states its concerns were filed with the federal government following the report of the joint provincial-federal review panel and the project was still approved.

“Among other grounds, the Innu of Ekuanitshit criticized the federal for having given a blank cheque to Nalcor when it authorized a dam at Gull Island whose construction has no start date,” the notice reads.

“Justice Scott dismissed this argument because he concluded that the Canadian Environmental Assessment Act requires a new environmental assessment ‘if the construction of Gull Island does not proceed within a reasonable timeframe.’ However, he did not explain how the Act could still have this effect since it was repealed on July 6, 2012 by the omnibus bill that accompanied the federal budget.”

This is the latest court filing in objection to the Lower Churchill development.

A previous Federal Court ruling on Dec. 20, 2012, dismissed an application from the Grand Riverkeeper, Sierra Club of Canada and the NunatuKavut Community Council.

That trio claimed the environmental review panel had not properly assessed alternatives to the Lower Churchill project and had failed to look at cumulative effects of the project.