The Dam is Your Dam, This Dam is My Dam, Part 4: Justice Versus the Law

True, if methylmercury bioaccumulates to unsafe levels in the food chain, government has pledged to provide compensation. But this presumes a lost way of life and sustenance can be redeemed with money

This Dam is Your Dam, This Dam is My Dam, is Greg Hewlett’s 6-part series analyzing aspects of the Muskrat Falls project to date. 

In December 2006, the Standing Senate Committee on Aboriginal Peoples released a special report on the Federal Specific Claims Process, decisively titled “Negotiation or Confrontation: It is Canada’s Choice.”

In the foreword comes a key line, “Currently, everything is done on Canada’s terms and the government is both defendant and judge.” Accurate as that statement is both for Specific Claims and the state of Canada’s relations with Indigenous peoples in general, “currently” suggests a generous temporality, an air of potential flexibility that more than a decade later and to the contrary of reconciliation rhetoric, has not been borne out.

That our federal and provincial governments are “both defendant and judge” is the inextricable context that mainstream media and governments fail to appreciate, convey, or both, in so many briefings and reports of arrested protestors, civil and criminal charges, and other supposedly objective framings of “law breakers.”

These are narratives neglectful of history, up to and including the present, which shows repeatedly that justice and the law are not invariably aligned. More to the point for our purposes: when it comes to colonial settler governments’ relationship to Indigenous peoples, justice and the law are almost never aligned.

Nalcor’s injunction at the Muskrat Falls worksite, the breaking of which in the Fall of 2016 led to multiple arrests and the jailing of three Indigenous elders, is a case in point. Prominent St. John’s defence lawyer Mark Gruchy, currently representing 29 Labrador Land Protectors (LLP), describes the injunction as follows:

“The trouble is, the evolution of the injunction as a remedy taken up by corporations, particularly in a context featuring indigenous issues, does not fit very well into any viable or vital integrated moral philosophy underlying the law. It simply doesn’t. It is perhaps the most glaring example of this in our entire socio-legal order.”

True, if methylmercury bioaccumulates to unsafe levels in the food chain, government has pledged to provide compensation. But this presumes a lost way of life and sustenance can be redeemed with money

That Nalcor and the government employed the injunction as a tool to suppress dissent is evident, as is the underlying implication of immoral behaviour by the accompanying narrative of “protestors breaking the law.”

It seems doubtful though that those in power allowed themselves to consider how responding to valid, non-violent, organized, primarily Indigenous activism with arrests, charges, and detainment so clearly constitutes the continuation of a coercive colonial process, once more shown to be decidedly not behind us.

Still, deliberately or not, the government soon acknowledged the gap between justice and their own application of the law in the forming of the Independent Expert Advisory Committee (IEAC).

The IEAC, “guided by the best available peer-reviewed science and Indigenous knowledge,” was commissioned by government “to recommend measures to protect the health of the Indigenous and local population from the effects of methylmercury.” This committee, which so emphatically should have been a precondition of the project from the outset, was struck during negotiations with members of the LLP—negotiations that took place only in direct response to protests.

In other words, government agreed to properly address their own potential poisoning of an ancient food and water source only after driving those who rely on it to protect it by any means necessary. And then arresting them for doing so. Nothing short of law-breaking and hunger strikes compelled government to even put themselves in a position to do the right thing.

The IEAC’s final recommendations were issued to government on April 10, 2018. Ashley Fitzpatrick of The Telegram summed them up as follows, “The IEAC has recommended the removal of more organic material from the area of what will be the hydro dam’s reservoir.The recommendation is intended to both reduce the amount of the neurotoxin methylmercury released in the reservoir’s creation, and the duration of methylmercury release after full flooding.”

It is important to note, however, that while these recommendations were the majority view, they were not unanimous. The vote on targeted soil removal at the reservoir was split, with Nunatsiavut and NunatuKavut voting in favour, and the Innu Nation against. With limited space and knowledge, and it not being my place to do so, I’ll refrain from venturing into the complex history informing the Innu-Inuit divide represented in this vote. It stands to mention however that it is Peter Penaushue, former MP and key supporter of the Lower Churchill Project, serving for a period as Federal point man, who has been the primary voice of dissent representing the Innu Nation, here.

In any case, the majority view stands: targeted soil removal and the capping of wetlands has been formally recommended by independent experts, vindicating the weight of the concerns brought forth and fought for by the LLP and others. Those recommendations, however, are non-binding. At the time of writing, two months have passed with little word from government on how it intends to respond and proceed. SNC-Lavalin has estimated that targeted soil removal will cost between $409-742 million. Needless to say, it’s a lot of money for an already grossly over-budget project.

But is this where we will choose to draw the line for cost overruns? On the money required to preserve a food and water source at the foundation of Indigenous livelihood and culture in the region?

True, if methylmercury bioaccumulates to unsafe levels in the food chain, government has pledged to provide compensation. But this presumes a lost way of life and sustenance can be redeemed with money.

It’s also a scenario that would force people into buying expensive, imported, often processed foods: another in a long line of obligatory assimilations to the Western Way.

Lastly, the notion of prearranged as opposed to retroactive compensation sets a dangerous precedent. As Steve Crocker notes, “It means that an industrial or extractive project can be planned with full knowledge of future toxic effects. The promise of future compensation protects the state and industry from ethical and legal responsibility for the people and things it harms as it begins to expose the population to harms that are now the condition of completing the project.”

Just because we’re doing a very bad job of it on our own terms doesn’t make the industrialization of an ancient, sustaining water and food source any less a neocolonial act. Let’s do this one part right, save the future compensation dollars, and clear the damn reservoir.

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