A prominent Mi’kmaq lawyer who has been following developments at Muskrat Falls says the project is but the latest in a history of extractive industrial practices that constitute a “modern day form of genocide.”
Dr. Pam Palmater is a member of the Eel River Bar First Nation in northern New Brunswick and Associate Professor and Chair in Indigenous Governance at Ryerson University in Toronto. She says it’s “really disappointing that we’re still going through these exact same scenarios every time there’s a contest between the constitutionally protected rights of Indigenous Peoples versus the non-protected privileges of the extractive industry.”
Palmater, who was a key figure in the Idle No More movement and in 2013 was declared one of Canada’s most influential lawyers by Canadian Lawyer Magazine, says the federal government’s silence on Muskrat Falls is deeply troubling, as are the actions of the Government of Newfoundland and Labrador.
“We’ve got an issue here where the federal government has completely abdicated itself of all responsibility about what’s going on at Muskrat Falls. This isn’t just a provincial issue, it’s also a federal one, and this shouldn’t be happening,” she said.
A modern day form of genocide
Palmater has published extensively on Indigenous identity and on the history of genocide against Indigenous Peoples in North America. While some dispute whether the treatment of Indigenous Peoples by settler governments constitutes genocide, Palmater explains the evidence is clear.
“People look at what happened in history and they debate whether or not it was genocide, but you only have to go to the international definition of genocide,” she explains. “There’s five different criteria, and Canada only needs to be involved in one of those to prove genocide. And the forcible transfer of the children from one group to another group is a form of genocide. Think of residential schools.”
Palmater says one problem with the conversation around genocide is that people often only think of it as a past practice. But it’s ongoing today, she argues.
“Think about all the kids that are in foster care, that are sexually abused, that are physically abused, or that don’t make it out alive. There’s more kids in foster care today than there were during residential schools. And if you look across at all of the policies, the exact same things are happening [to Indigenous Peoples].”
Canada’s policy history with regard to Indigenous peoples, she says, had two primary goals: to acquire Indigenous land and resources, and to reduce the financial obligations committed to by the government through treaties and other agreements.
“And the only two ways of doing that was (a), to eliminate Indians, or (b), to assimilate them. And the elimination and assimilation part has never really stopped,” she says. “If you look at all of the deaths in police custody, the overrepresentation in prisons, the kids in foster care, so on and so forth. So Canada’s genocidal and lethal policies have changed in name but not in effect.”
Palmater says those policies manifest in extractive industrial projects like Muskrat Falls, which people often refer to as a form of “environmental racism”.
“The projects are located on Indigenous lands, all of the environmental destruction is on Indigenous lands. The Indigenous people get all the poisoning, but non-Indigenous people get the majority of the benefits, and/or transnational corporations, so that the money actually doesn’t even stay in the country.
“So because the environmental contamination and lack of clean drinking water and all of the violence that’s associated with these extractive industries—like man camps and the increased drugs and alcohol and abuse that goes on with the workers that come in from the industry—you’re talking about a modern day form of genocide,” she says.
“It’s not happening fast, it’s not millions of people a day, but it’s thousands of people a year that are dying premature deaths from all of these things. You only have to look at the crisis of murdered and missing Indigenous women,” she continues. “The problem, on the issue of genocide or environmental racism, is everyone looks at each situation separately as if they’re not connected. People look at Muskrat Falls and think this is just a dispute over a dam, when in fact it’s so much bigger than that.”
The provincial government in Newfoundland has repeatedly asserted there are differing scientific interpretations of the risk of methylmercury poisoning from the project, and that more research needs to be done. Palmater doesn’t buy it.
“It only becomes an issue of conflicting evidence when it comes to Indigenous Peoples,” she says. “Given the human life at stake, wouldn’t you err on the side of caution?
“That’s what we’re talking about. The basic fundamental human rights of Indigenous people are being violated. They are, without comprehensive study or getting their free informed and prior consent, being put at risk for profit. They are not being put at risk for a national emergency. It’s for the profit of corporations. And that’s unacceptable.”
Constitutionally-protected Indigenous rights trump other laws
Early Monday morning, before dawn, RCMP officers arrested several land protectors at the blockade of the Muskrat Falls site, at least one of them violently. Officers stated they were just enforcing the law, given a court injunction obtained by Nalcor. But Palmater, who’s been practicing law for 16 years and is thoroughly familiar with such claims, says the constitutional rights of Indigenous Peoples trumps court orders.
“I am so tired of hearing police say ‘We’re just enforcing the law,’ ‘We’re just enforcing a court injunction,’ ‘We’re just enforcing…’ whatever it is — because the RCMP are the federal police force, first of all. They first and foremost have an obligation to uphold all of the laws in this country including the supreme law of Canada…[and] the constitution trumps every other law in this country,” she explains.
[Indigenous Peoples] are, without comprehensive study or getting their free informed and prior consent, being put at risk for profit. — Pam Palmater
“Aboriginal rights are constitutionally protected. Treaty rights are constitutionally protected. Inherent rights are constitutionally protected. And when have you ever seen in the history of Canada a group of Indigenous people being able to call up the RCMP and say ‘Hey! Our aboriginal and treaty rights…are being violated right now. Can you come in and get rid of these extractive industries until they get our consent?’ Never!”
Palmater says the RCMP “essentially have gone from being impartial enforcers of the law to political pawns for governments and security forces for the extractive industry.”
Hunger striker Billy Gauthier, presently on his eighth day without food, is heading to Ottawa in an effort to bring the issue to the federal government. Palmater, who has appeared as expert witness before parliamentary and United Nations committees, believes very strongly the federal government has an obligation to intervene in Muskrat Falls.
“They have a fiduciary obligation to at all times act in the best interests of Indigenous people, especially where their constitutional rights or their land rights or health and safety are at concern,” she explains.
“Think about it – there’s actually a Minister for Public Safety. Where is that minister? Where’s the Minister of Indian Affairs? Where is the Minister of Health in all of this? The constitutional division of powers between Canada and the provinces are not absolute. Recent Supreme Court of Canada cases said that it’s the Crown that has the responsibility – both the Crown in right of Her Majesty the Queen, and the provinces. And they share those fiduciary obligations. So if the province isn’t stepping up, then of course the federal government should get involved.”
Palmater has been critical of the federal Liberal government under Justin Trudeau, who campaigned on the promise reconciliation, and to build Nation to Nation relationships with Indigenous nations in Canada.
“If Trudeau doesn’t soon start implementing his promises and acting on his statement that there’s no relationship more important than Indigenous peoples, then he’s going to end up nothing more than a red [Stephen] Harper,” Palmater says. “Because Harper did all of these things, the only difference between Harper and Trudeau at this current moment is that Trudeau’s Liberals are nice about it. And they’re friendly. And they do lots of photo-ops.”
Going to court is rarely an option for Indigenous Peoples defending their land, Palmater explains. In addition to the prohibitive costs of seeking justice through the courts, she says that turning to the courts often becomes a political strategy used to undermine Indigenous rights.
“Look at every single court case that’s dealt with Aboriginal treaty rights. [They take] anywhere between 20 and 25 years to get to Supreme Court of Canada. What do you think is going to happen during those intervening 25 years? The dam will be built, the poison will be done, people will be sick, and then we’re talking about compensation. It’s in part political strategy,” she continues.
“Governments are able to delay dealing with any of these issues simply by making it go to court. Even getting a criminal charge could find its way all the way to the Supreme Court of Canada. But 25 years later? The trees are gone, the minerals are gone, the water is poisoned, and people are sick.”
While Palmater says the RCMP should be intervening to protect constitutionally-protected Indigenous rights against Nalcor, she acknowledges the reality is that only sustained pressure of activists on the ground will force political action.
“[W]e know the practical reality—the province, the federal government and the RCMP are not following the law. So, what are your options? Generally the only options are bodies on the ground. Which means land defenders, water defenders, Elders, ceremonial holders, and the whole concept [that] this is our last option,” she explains. “We’re back to the people on the ground being forced with life and death scenarios. Life and death to defend the land, or life and death to live on contaminated land. And Canada and the provinces are giving Indigenous people less and less choices.”
Strength and resilience
Palmater says the spirit of the land defenders and Indigenous Peoples at Muskrat Falls has touched and inspired the entire country.
“Their strength and resilience is really empowering all the other Indigenous Peoples across the country. They may not see it and they may not know it, but all over social media—you know that one picture of the 13-year old girl drumming to stop the truck—it’s literally empowering and inspiring others to keep up with our fight everywhere else.”
If the land defenders keep up their actions at Muskrat Falls, she says, they’re sure to win—history proves it.
“It’s only through the actions of the people on the ground, like what’s happening at Muskrat Falls, that brings about change. In every scenario—every scenario—some kind of change has happened. James Bay Cree wouldn’t have their historic self-government land claims agreement had they not protested for a very long sustained time over the dams in Quebec…the Mohawk communities wouldn’t be at the negotiating tables about returning land had Oka not happened. You wouldn’t have had the Royal Commission on Aboriginal Peoples had Oka not happened,” she says.
“At every single point in history when we have stood up and stayed strong through our protests, we have been able to at different levels defeat what is being forced upon us.
“The people at Muskrat Falls are showing us what has to be done and they’re inspiring us, and we know it’s hard for them and they’re the ones that are being arrested and they’re the ones that are being bullied, but there are so many more people behind them than they will ever know,” says Palmater.
“Hopefully they get that message, just to stay strong and keep thinking about our future generations. Because it’s our kids that are depending on what they do today.”