Last week Nalcor and the NunatuKavut Community Council and their president Todd Russell appeared in the Supreme Court in Happy Valley-Goose Bay with Nalcor seeking an interlocutory Injunction against the NCC and Todd Russell.
The action began after Russell and the NCC held a one-day protest on Oct. 10 at the Caroline Brook Forestry Access Road where protestors stopped vehicles and handed out leaflets, and in some instances refused access to the site.
The NCC claimed that they had not been fully consulted as outlined in the Supreme Court of Canada decision Haida Nation v. British Columbia (Minister of Forests),  3 S.C.R. 511, 2004 SCC 73,
“The government’s duty to consult with Aboriginal peoples and accommodate their interests is grounded in the principle of the honour of the Crown, which must be understood generously. While the asserted but unproven Aboriginal rights and title are insufficiently specific for the honour of the Crown to mandate that the Crown act as a fiduciary, the Crown, acting honourably, cannot cavalierly run roughshod over Aboriginal interests…The duty to consult and accommodate is part of a process of fair dealing and reconciliation that begins with the assertion of sovereignty and continues beyond formal claims resolution,” said the judges in their decision.
In simple terms, the Crown being the province of Newfoundland and Labrador and Nalcor, which is an extension of the province, has a duty to consult with the NCC whether or not the land claim made by the NCC is proven or not, the clear fact that a claim has been exerted, that in itself is enough to open the consultation process.
The interesting facts that came out of the hearing of November 5 and 6 was in 2009 Nalcor and the NCC signed a consultation agreement and Nalco advanced $103,000 to the Joint Review Panel for consultation. In fact, because they are an aboriginal group, they would have had to be part of the process as outlined under section 35 Constitution Act, 1982.
The NCC has had ample opportunity to exert their land rights to the area and has done little in that effort until now. -
Evidence showed that since 2005 up to 2011 there has been several steps by Nalcor to consult with the NCC and that several permits were sent to the NCC in dealing with Muskrat Falls in particular to the access road extension and to work in preconstruction stage.
All of this brings into question the true motives of the NCC. We know that since 2005 up to 2011 there has been numerous consultations between Nalcor, the province, the federal government and the NCC.
The NCC has had ample opportunity to exert their land rights to the area and has done little in that effort until now.
If the NCC is seeking the same deal as the Innu First Nations as outlined in the “New Dawn Agreement,” the NCC should have responded in 2005 when notification letters were sent out to 10 different aboriginal groups notifying them of the proposed Muskrat Falls development and exerted their land right at that time. It is interesting that the only nation who exerted their aboriginal land claim rights was the Innu Nation. All the other groups never responded.
For the NCC to come forward now as this project is due to be sanctioned leaves the impression that the NCC is attempting to seek the same benefit that the Innu Nation received. If that is the case, the NCC should come forward and say they want the same benefit agreement instead of throwing up smoke and mirrors that they have not been fully consulted.