Cascading fifteen meters and once surrounded by thick expanses of coniferous wood, Muskrat Falls is a natural waterfall located on the lower Churchill River west of Happy Valley-Goose Bay, Labrador. In 2013, Nalcor Energy, a Newfoundland and Labrador corporation headquartered in St. John’s, began its construction project on the Muskrat Falls Generation Facility, which Nalcor planned to complete over five years. The facility is part of Nalcor’s effort to extract power from the Lower Churchill River, which Nalcor calls “the best undeveloped hydroelectric source in North America.”
Muskrat Falls has been the site of considerable controversy since Nalcor began its project. Indigenous groups, local community members and environmental activists such as the Labrador Land Protector’s group allege that peer reviewed scientific research predicts that the flooding of the facility’s reservoir may precipitate a rise in methyl mercury levels downstream. The flooding of the reservoir began approximately on schedule in November, 2016.
A rise in methyl mercury levels could pose serious risks including the contamination of traditional indigenous food sources and ecologically significant areas. Opponents say that Nalcor failed to appropriately recognize or respond to the possibility of contamination, while Nalcor persistently maintains that the dam will not have substantial downstream impacts. On May 19th, 2017, fifty residents of Mud Lake, Labrador were air-lifted from their village due to severe floods that some attributed to the Muskrat Falls project. In keeping with it’s past position, Nalcor holds that the project has done nothing that would have impacted water flow so as to contribute to floods.
According to the Labrador Land Project, operating the Muskrat Falls facility without taking appropriate precautions regarding the risk of contamination is an infringement of the UN Declaration on the Rights of Indigenous People, which Canada has signed. The Nunatsiavut government, of the nearby autonomous Inuit Nunatsiavut region of Labrador protests, “THE MUSKRAT FALLS HYDRO DAM WILL HARM INUIT HEALTH AND VIOLATE INDIGENOUS AND HUMAN RIGHTS.” Concerned groups have been demonstrating at the Muskrat site since October of last year, demanding that Nalcor “MAKE MUSKRAT RIGHT” by taking measures to prevent to the alleged risk of methyl mercury contamination from manifesting in human and environmental harms. The Nunatsiavut government suggested such seemingly low-burden precautions as clearing trees and soil prior to flooding the reservoir.
On May 20th and 21st, 2017, Beatrice Hunter joined protesters across from the Muskrat Falls site’s main gate. She was later arrested alongside four others on the grounds that her presence within one kilometre of the site constituted a breach of an undertaking she made last fall. Hunter signed her undertaking around the same time as the Supreme Court of Newfoundland and Labrador issued the sweeping injunction of October 24th, 2016, applying to anyone “unlawfully occupying” the Muskrat Falls site. These judicial acts responded to the growing presence of protesters at the Muskrat facility as the scheduled time for flooding the reservoir approached. Attendance swelled to 200, arrests were made and protesters undertook hunger strikes and cut the locks on the main gate to the Muskrat Falls facility.
When Hunter was brought before the Court on charges of breaching her undertaking, she refused to affirm it or to obey the order requiring she keep a one kilometre distance from the Nalcor facility. She was consequently incarcerated in St. John’s for contempt of court and released today following ten days of detention. Hunter defended her refusal as an assertion of her rights, saying “there’s only so long people can be suppressed until you have to do something about it” and contending that, as an indigenous woman, she should not be subject to settler or colonial law. Hunter’s is a significant proposition given that indigenous women are the fastest growing demographic in the Canadian prison system, constituting around forty percent of incarcerated women.
In a letter to Hon. Dwight Ball, Newfoundland and Labrador Premier and Minister of Intergovernmental and Indigenous and Labrador Affairs who has met with indigenous leaders concerning the Muskrat Falls project in the past, the Nunatsiavut government called the incarceration of Hunter “unnecessary and immoral.” Hunter, a 48 year old Inuk grandmother from Happy Valley-Goose Bay, was not alone in her civil disobedience. By March of this year, the RCMP had brought 58 criminal charges against 27 protesters who blockaded and occupied the Muskrat Falls site, many of whom already had civil contempt of court charges and most of whom were indigenous. A coalition of journalist groups such as Canadian Journalists for Free Expression denounced mischief charges brought against a journalist who attended the Nalcor site “in the strongest possible terms.” And while Hunter was in prison, over a hundred people showed on the steps of the St. John’s Colonial Building and at Her Majesty’s Penitentiary, to protest her confinement.
Fanfare attended Hunter’s release today after Justice George Murphy of the Supreme Court of Newfoundland and Labrador changed his decision and modified the conditions of Hunter’s release.The town of Happy Valley Goose Bay, where Hunter has returned, lies about forty-five kilometres from the Muskrat Falls project. According to 2011 census figures, Hunter is one of over half of the Happy Valley Goose Bay population who are aboriginal. She is now allowed within the one kilometre radius set out in the Court’s injunctions, provided she not block access to the site. Beatrice is the lone exception to the restrictions placed on those charged in the Muskrat Falls demonstrations. She can legally cross the boundary to stand in protest at Nalcor’s gate as the development of the Muskrat Falls site, with its possible consequences for her culture, health, and home, unfolds.
The Muskrat Falls quandary boils down to a confrontation between marginalized indigenous interests as represented by individuals who are ill-positioned to pay legal fees and a large provincial corporation that earns many billions of dollars a year and climbing. Further, according to the Independent, citing Dr. Pam Palmater, Mi’kmaw lawyer and Ryerson University’s Associate Professor and Chair in Indigenous Governance, indigenous protesting is increasingly criminalized “despite the fact the protests themselves are an effort to guard constitutionally-protected rights”. A complex but not unfamiliar stew of civil liberties issues is brewing in the ongoing events surrounding the Muskrat Falls project. Claims to free expression, assembly, and press and to equal access to justice interact with promises of reconciliation, of aboriginal or indigenous, minority, and human rights. These claims converge with considerations of property, rule of law, safety, and economic and resource development.
This blog post was written by a Legal Volunteer. Views expressed do not necessarily reflect the view of the CCLA.