On an early morning in late September, Denise Cole led a group of land protectors to Nalcor Energy’s head office in St. John’s to keep workers out – to send a message to the corporation and the province.
“To Dwight Ball, the premier of Newfoundland and Labrador, as well as to Nalcor CEO Stan Marshall,” said Cole, standing at Nalcor’s doors, drum in hand. “It’s not okay to poison people downstream with methylmercury.
“It’s not okay to try and bankrupt this province, and it’s certainly not ok to put people in fear of drowning downstream.”
Nalcor Energy is the provincially-owned corporation in charge of the Lower Churchill hydro project – a controversial dam under construction at Muskrat Falls in Labrador.
Famously called a “boondoggle” by Marshall, the cost of the project has doubled to $12 billion.
The land protectors blocked the building’s entrances for a couple of hours.
Cole wanted to talk with Stan Marshall.
That didn’t happen.
Nalcor called the police instead – no one was charged.
Nalcor communications manager promised Cole a future meeting with the CEO and after several weeks, she was given a date.
On November 29, Marshall will join a sharing circle with the Labrador Land Protectors.
Before the group left, Cole read a statement from the land protectors – a sample of what she wanted to say to Marshall face to face.
“Drop the court injunction peaceful protectors in Labrador,” said Cole. “Stop acting like you cannot.”
Nalcor Energy was granted the injunction in October 2016.
It was an attempt to quell the rising momentum of Indigenous-led resistance to the Muskrat Falls project.
Innu and Inuit wanted key concerns around health and safety addressed.
One of the safety concerns is Methylmercury – a naturally occurring toxin that is created when trees and topsoil decompose in the reservoir when flooded.
A Harvard study in 2015 predicted the impacts would reach further downstream than first thought.
Another fear focused on an area of the dam called the North Spur.
The soil in the area consists of what’s called quick clay and many in Labrador worry it won’t support the weight of a full reservoir and could flood communities downstream if the dam gives way.
“This issue was and still is way too important to be swayed by a court injunction,” said Marjorie Flowers.
The Inuk woman is among dozens facing criminal and civil charges for breaking the injunction.
Flowers is one of four land protectors who spent several days in jail after refusing to promise a judge they would obey the court order to stay away from Muskrat Falls.
“I am an Inuit woman that lived off the land and continue to live off the land and my lifestyle that sustains me is now threatened. And I’m not allowed to speak,” said Flowers. “And it’s so frustrating. It is so hurtful. It is so painful. It is so despairing.”
(Pictured here on July 31, 2017, the three Labrador land protectors had just been released from jail.)
Over the last year, it’s been a seemingly endless series of court dates for land protectors in Labrador.
Cole, who is also facing charges for breaking the court order, called the injunction “a very heavy-handed tactic to get us back under control.
“It says basically that the interests of a crown corporation are way more important than any Indigenous rights,” said Cole. “A right to traditional foods in a safe way. A right to our sacred spaces.”
Marshall only came on as Nalcor Energy CEO in April of 2016.
Premier Dwight Ball was in opposition when Muskrat Falls was approved and has pointed out numerous times that he voted against the project. In September, he announced a public inquiry to look into the Muskrat Falls fiasco.
But the 2016 court injunction happened under the leadership of both Marshall and Ball.
(The interim court injunction obtained by Nalcor Energy in October 2016 is still in place a year later. Dozens of people in Labrador have been charged with breaking it during ongoing protests last year.)
“I haven’t seen a lot of proof, I suppose, that the government is really into reconciling with Indigenous people,” said Flowers.
“In fact, it’s the very opposite. It’s the very antithesis of what reconciliation is.”
Bill Gallagher, a lawyer and author of Resource Rulers; Fortune & Folly on Canada’s Road to Resources, agrees.
“If you are relying on lawyers and their legal toolbox to put everyone back in their place you’re going in the opposite direction of reconciliation,” he said.
Gallagher has a long history of work as a strategist and legal expert in the resource sector, from Voisey’s Bay mine in Labrador to Alberta’s oil patch.
He’s been paying close attention to the Lower Churchill project.
“You don’t have to speculate on what went wrong with Muskrat Falls,” said Gallagher. “Nalcor is relying on lawyers to do it the hard way. And that makes sense. No schedule. No budget. Lots of lawyers. That’s a perfect formula for a boondoggle.”
Gallagher said the resource sector can be the easiest place for reconciliation, as long as governments and corporations follow the right road map; one that includes consent, Indigenous rights, and revenue-sharing.
And not addressing Indigenous rights is a big mistake.
“[First Nations] have amassed the biggest legal winning streak in Canadian legal history,” said Gallagher. “At the time we’re doing this interview, they’ve won 247 high-level court cases in the resources sector. And so I call them resource rulers.
“Because if you’re trying to bring a megaproject online in Canada today in the face of native opposition, it’s probably not going to happen.”
He points to Rexton, New Brunswick and the Mi’kmaq-led fight against fracking near Elsipogtog in 2013.
“Keep doing it the hard way and you’ll lose every time. All sorts of injunctions get won by corporations. South Western Resources. SWN won all its injunctions in Rexton,” said Gallagher.
“You see any projects happening in Rexton?”
U.S. energy giant SWN Resources may have packed up and left New Brunswick, but the Government of Newfoundland and Labrador has said the billions of dollars tied up in contracts make Muskrat Falls unstoppable.
(The Lower Churchill project at Muskrat Falls is still under construction. The dam will be up and running in 2020. It will produce 834 megawatts of power.)
The federal government has backed the project with close to $8 billion, with $2.9 billion of the federal loan guarantees coming from Trudeau’s Liberals in 2016.
“The federal interest in this is pretty significant when they are trying to use a project like Muskrat Falls to try and justify a green energy plan,” said Cole. “So in helping the provincial government in a financial way is to hurt Indigenous people in a healthy way, and in a cultural way.”
Cole said money talks louder than buzzwords around reconciliation. And that the work of the Truth and Reconciliation Commission goes much deeper than residential schools.
“We’re talking about the justice system. We’re talking about how communities are treated. We’re talking about how resources projects are handled,” said Cole. “And Muskrat Falls for me is the biggest example of that because, of course, it’s right in my backyard.”
Gallagher said Canada has been a “slow learner” when it comes to incorporating Indigenous rights and interests in the resource sector. And he said Indigenous leaders called the decade of Harper’s Conservatives ‘dark days’ for good reason.
“But [Harper] sets the stage for Trudeau’s so-called ‘sunny ways,’” said Gallagher. “Which obviously are a lot of platitudes. But that heartfelt sentiment he brought in in his first two years had to happen. First Nation leaders had to hear a prime minister say those things as they’re starting to acknowledge and factor in the empowerment of First Nations through these court cases.
“They still have a long way to go – but that’s the unfinished business on the road to resources.”