The Muskrat Falls Fiasco: Indigenous Exclusion in Natural Resource Projects and the ABS Imperative
Chidi Oguamanam and Sarah O’Flaherty
On February 14th 2022, Newfoundland and Labrador Premier Andrew Furey announced the signing of term sheets for a $1-billion federal investment and a $1-billion federal loan guarantee for the Muskrat Falls Project. This is the third such guarantee the federal government has backed in respect of the project. It marks the completion of the negotiation process for the deal. Premier Furey labelled the deal “the next step for all of us to emerge from under the dark shadow of Muskrat Falls.”
In a news release on the same date, the Innu Nation expressed frustration that the federal and provincial governments proceeded with the financing deal without reaching an agreement to mitigate potential financial impacts on the Innu of Labrador. This was yet another instance of the chronic exclusion of Indigenous people by the two governments throughout the life of the project. The provincial and federal governments’ attitude perpetuates the status quo by rejecting legal pluralism while embracing colonial legal architecture. For over 150 years, Indigenous laws and legal traditions have consistently received less recognition than their English common law and French civil law counterparts. During a time of national consciousness for reconciliation, perpetuating this systemic behaviour is worrisome.
Background
The Muskrat Falls project is a hydroelectric power generation and transmission development that Nalcor Energy, a provincial Crown corporation, sanctioned and built with the authorization of the government of Newfoundland and Labrador. The project is located on traditional Innu land - the Churchill River flows through central Labrador to Lake Melville. This site is an ecosystem of extreme importance to Innu of Sheshatshiu and Inuit of the Upper Lake Melville and Rigolet, and other Indigenous people in the region. Environmental concerns have plagued the project throughout its lifetime and many Indigenous peoples are relentless in expressing serious concerns regarding the potential current and future impact of the project on land and wildlife, in addition to other considerations crucial to Indigenous rights.
Methylmercury Poisoning Concerns
A serious concern was the downstream impact of the project and the risk of exposure to methylmercury. When a hydroelectric reservoir is flooded, levels of methylmercury increase in fish and other seafood. Methylmercury is a dangerous neurotoxin passed to humans through fish, marine mammals, wild birds, and shellfish; all of which are core aspects of the traditional Inuit diet. Across Labrador, conventionally procured food is scarce and often comes at inflated prices that drive many out of grocery stores. Consequently, reliance on traditional or directly sourced food is critical to food security of the Innu, and other Indigenous peoples of Labrador.
The Nunatsiavut Government, a self-governing Inuit regional government, requested funding from the province to conduct its own research regarding methylmercury risks involved in the project, and to engage in a water-monitoring program. This request was denied. They funded the study themselves and found that methylmercury levels would be 25% to 200% higher, and would extend farther into Lake Melville, than Nalcor estimates had shown. As the Nunatsiavut Government wrote in Lake Melville: Avativut, Kanuittailinnivut (Our Environment, Our Health)Summary for Policy Makers, Lake Melville is an ecologically and culturally significant subarctic estuary located mostly within Labrador Inuit territory. It is central to Inuit subsistence and well-being and has supported a thriving Inuit society for centuries.
In response, Nalcor argued that there was no feasible way to substantially reduce the amount of methylmercury that would form in the reservoir. Nalcor insisted that any potential health effects resulting from the project could be addressed with consumption advisories, and that no effects would be seen as far downstream as Lake Melville. This response gave no attention to the interrelated issues of food insecurity, adherence to traditional diets, and Indigenous ways of life. Neither did it address the potential dangers of methylmercury to both Indigenous people and the genetic resources found within Lake Melville.
When ingested, methylmercury travels through the body and enters the brain. Methylmercury can enter the fetus if ingested by pregnant women, building up in the fetal brain and other tissues and can be passed to infants through breastmilk. If a child is exposed to methylmercury, the effects can include a decrease in I.Q., developmental delays, lack of coordination, blindness, and seizures. Adults may experience personality changes, tremors, changes in vision, deafness, loss of muscle coordination and sensation, memory loss, intellectual impairment, and even death.
A study published in the journal Environmental Research that examined the trade-offs between a diet higher in methylmercury and one lower in traditional food (often referred to as ‘country’ or ‘local’ food), estimated that methylmercury consumption will double because of the project. Doubling methylmercury intake would still be within the limits Health Canada considers safe for most people. Any increase in methylmercury translates into increased risk. However, compared with a diet that includes less country food, the doubled methylmercury intake is the ‘lesser of two evils’ for most people. For the small population of people who already have very high methylmercury exposures at present day, (those who eat a lot of local foods), there might be some appreciable risks.
The NL Government’s Repeated Failure to Act and Consult
For years, the provincial government either refused or dragged its feet on requests from Indigenous people to address their concerns over the project. For instance, in November 2015, the Nunatsiavut Government wrote to the province requesting that their concerns regarding methylmercury be addressed. After seven months of silence, there was no outcome from the request. In 2017, the Independent Expert Advisory Committee (IEAC) made recommendations for mitigation measures, including wetland capping. There were numerous missed opportunities to understand and manage the urgency of the wetland capping timelines. The province did not respond to the recommendations for several months. By the time the province provided its approval, the window to implement the wetland capping process had passed and it was too late. To date, none of the promised mitigation measures has been implemented.
However, the provincial government does conduct monitoring for methylmercury in the Lower Churchill River area, as outlined in the Methylmercury Monitoring Plan. The plan monitors the water quality of the Muskrat Falls Reservoir, portions of the Churchill River, Goose Bay, and Lake Melville and involves the assessment of changes in the level of methylmercury in water and sediment due to the creation of the reservoir. The government publishes the results monthly, although the raw data is difficult for a layperson to meaningfully review as there are no guidelines on the site to assist in the interpretation of the results.
Ultimately, the Muskrat Falls Inquiry found that the provincial government failed to ensure that, along with Nalcor, it acted fairly in its consultations related to Indigenous Peoples and environmental matters. Both the government and Nalcor created an environment of mistrust and suspicion by not allowing all Indigenous Peoples to engage in a meaningful and transparent consultation process, which has resulted in delays and significant cost overruns.
Need for Implementating of an ABS Framework
There is currently no single, comprehensive template for an access and benefit-sharing (ABS) system in Canada to govern access to genetic resources and associated traditional knowledge, or to facilitate the sharing of benefits arising from their use. At best, every Indigenous community or authority is left on its own to navigate a complex legal terrain, which perpetuates inequity not only in the use of genetic resources and Indigenous traditional knowledge, but also in managing associated hazards. The resulting situation is detrimental to Indigenous peoples in Canada and has negative ramifications for reconciliation.
ABS policies have been recognized as a key component of sustainable development, which remains a priority for the Canadian government and the international community. Pressing development issues, such as promoting food security, eradicating poverty, supporting the green economy, and other aspects of the Sustainable Development Goals depend in part on equitable ABS policies to ensure innovative and sustainable use of resources in culturally inclusive sensitive ways and contexts.
Equitable ABS policies have a role in promoting reconciliation between Indigenous peoples in Canada and the Canadian governments. ABS policies ensure that Indigenous peoples are involved through Free, Prior, and Informed Consent and adequately participate in the use of their resources — building trust and accountability with the government. However, ABS policies can best be achieved through a shift in national consciousness toward embracing legal plurality and recognizing the legitimacy of Indigenous laws, legal traditions, and rights. Genuine respect and meaningful inclusion for Indigenous peoples is the only way forward. In undertaking a nation-to-nation approach in future natural resource projects, and in establishing equitable ABS policies, Canada will be able to build confidence that facilitates reconciliation. In return, improved relationships with Indigenous peoples may increase the efficacy of resource extraction and utilization, as both partners share knowledge and capacity. In reforming a system based historically on exploiting and undermining Indigenous peoples, Canada will support its reconciliation process by holding itself, and corporations, accountable to equitable standards.
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