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Margaree Environmental Association Addresses Nova Scotia Chiefs; Questions Role of Mi'kmaq Consultation Group

Province pays for KMKNO-issued report, then uses report to help defeat court challenge to Lake Ainslie drill

by Miles Howe

Despite strong resistance to the Lake Ainslie drill project, and risks of uranium being in the flowback, the KMKNO was duly consulted in the Lake Ainslie drill project. [Photo: Miles Howe]
Despite strong resistance to the Lake Ainslie drill project, and risks of uranium being in the flowback, the KMKNO was duly consulted in the Lake Ainslie drill project. [Photo: Miles Howe]

K'jipuktuk (Halifax) -- The information sessions that are currently taking place on First Nations reserves across Nova Scotia have seen organizers from Idle No More and representatives from the Kwilmuk Maw-klusuaqn Negotiating Office (KMKNO) deliver presentations related to the 'Made In Nova Scotia Process,'  the name given to the negotiating table involving the federal and provincial governments, and the Assembly of Nova Scotia Mi'kmaq Chiefs.

With all eyes fixed on the long-term survival of the treaties, it is important to note that the KMKNO is not simply a negotiating body mandated with representing the Indian Act Chiefs in the 'Made in Nova Scotia Process.' It is also, according to their website: “the only officially sanctioned Mi’kmaq Negotiation and Consultation service in Nova Scotia.” The website also notes that the KMKNO is involved in over 100 consultations currently underway in Nova Scotia.

Since 2004, as a result of 'The Haida Decision,' projects that involve resources or potential environmental impacts are legally obligated to involve consultation between the province – in this case Nova Scotia – and First Nations peoples. Provided that the consultants share the desires of the Indigenous communities they claim to represent, the Haida Decision is a means by which these communities can have representation – and compensation - in the decisions that stand to affect the shared landscape.

When the consulting body does not share the vision of the grassroots, however, the community risks becoming split into factions. The consulting body also carries behind it the weight of the industrial partners and levels of Canadian government, who both consider it to be the official – and legally valid - voice of the Indigenous populace. This can present great difficulty for the grassroots, who now are forced to attempt to reverse the decisions of the consultants who are supposed to be working on their behalf.

In 2011, the KMKNO was involved in a consultation over the proposed exploratory gas well on the shores of Lake Ainslie. One of the key documents to come out of this consultation process was the 'Lake Ainslie Oil Exploration Drilling Program', a 32 page environmental briefing document prepared for the KMKNO by 'Exp Services Inc.' The document was finalized in July 2011.

The briefing document contains numerous environmentally-related warnings, including one that states: “The risks associated with the exploration program are qualitatively high because of the value placed on [the] natural resources by the Mi'kmaq of Nova Scotia, local residents, the provincial government and the Canadian Heritage River System.”

The report also notes that flowback water coming back up the potential drill hole will: “consist of drilling mud and chip samples of the bedrock being drilled through and groundwater entering the hole. The latter maybe saline and include mineralized waters, including uranium (with decay products) and hydrocarbons (oil/gas). Petroworth plans to store all return waters in a standard drilling fluid tank.” (italics added)

Despite the clear warning to the environment, including the plan to store potentially radioactive flowback water in a standard drilling fluid tank, and despite the strong opposition to the drilling project from local populations - both Indigenous and non-Indigenous alike - it was not the KMKNO, but the threat of physical grassroots resistance, that caused investors to withdraw from the project.

The importance that the provincial government eventually placed on this KMKNO-commissioned briefing document also deserves some scrutiny.

In the summer of 2012, the Margaree Environmental Association took the Minister of the Environment to court under an appeal to the Environmental Act to try to get the permit to drill on the shores of Lake Ainslie quashed. An appeal to the Environment Act does not allow for the introduction of new evidence, and can only be based upon what the Minister considered when he gave out the permit.

Neal Livingston, of the Margaree Environmental Association, notes that throughout the court battle it was the KMKNO report that provided the brunt of the province's justification for issuing the drill permit.

“What the government introduced - which completely blindsided our group – was this KMKNO report,” Livingston told The Halifax Media Co-op. “We had seen the report before and it just seemed to be your typical report that a conventional engineer would do depending on what the terms of reference were [that were] given to them.

“Suddenly in court here was the lawyer defending the permit the Minister gave out by using this KMKNO report. If we would have known that we would wind up in court where it would have been nice to have a report, we could have hired an engineering firm to write a report too. And it could have been before the Minister before he made his decision. But as far as the court case went, the last thing we would have thought is that the report would have been used by the government to support its case, and the judge basically quoted extensively from it in his decision.”

Livingston, who has subsequently written a letter to the Assembly of Nova Scotia Mi'kmaq Chiefs, notes that the situation becomes even more complicated when one considers that both the KMKNO and the province of Nova Scotia have verified that the report - while commissioned by the KMKNO - was paid for by the province (whose Department of Energy website is unabashedly pro-gas development).

“Our group is dismayed that the KMK[NO] study essentially helped the Government of Nova Scotia to support oil and gas exploration at Lake Ainslie, and that KMK[NO] procured this report with government funds. We are concerned about the apparent lack of due caution regarding the implications of taking funds from the Province, and regarding how this report might be used by the Province to force oil and gas exploration on communities and in inappropriate locations,” writes Livingston.

To Livingston, the apparent lack of communication and shared vision between the KMKNO and the grassroots people it claims to represent, and the potential of complicity between themselves and the province, isn't necessarily restricted to the example of the Lake Ainslie drilling project.

“If [Shelley Young and Jean Sock's] hunger strike was essentially about problems in representation from the grassroots [Mi'kmaq] to the decision-makers relative to the treaty process, our group has an example of the Native community strongly opposing oil and gas development, and here's this study being used by the province to say 'Everything's OK',” says Livingston. “Here's a very sophisticated use of a study by the government, to support its position, while the Native leaders in the Native communities don't really understand that this study is being done to be used to support oil and gas exploration.”

As of press time, no one from the KMKNO was available for comment.

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