As the New Brunswick government and the Wolastoqey Nation prepare for what could be a decade-long legal battle over Aboriginal title, an alternative approach is continuing to unfold on the eastern edge of Atlantic Canada.
In Labrador this week, the owners of the Voisey’s Bay nickel mine have halted marine shipping to and from the mine, just as they do every year on Dec. 6.
It’s part of an agreement to minimize the breaking up of winter ice by ships so that Inuit and Innu hunters can cross that ice to harvest in their traditional territories.
Two decades ago, “the issue threatened to be a deal breaker,” said a 2008 presentation by two officials with Vale Inco, the mine owner.
But the Inuit and the Innu people, already deep into land claim negotiations with the government of Newfoundland and Labrador, agreed to set up a working group with the company.
“Over a number of years this group established trust and common understanding between the parties on the issue of both open water and winter shipping,” Vale Inco said in 2008.
Now the company halts shipping periodically through the winter to let the water freeze over again so it can be used by the Inuit and the Innu.
That agreement and broader agreements on financial and job benefits for the Inuit and Innu of Labrador are a potential model for other provinces facing seemingly intractable land disputes.
“It was new, different. It was sort of ground-breaking at the time,” said Roger Grimes, who was premier of Newfoundland and Labrador at the time the deals were negotiated.
Fighting it out in court might have doomed the mine and cost the Inuit their five per cent share of provincial royalties from the mine, said Theresa Baikie, the impact and benefits co-ordinator for the Nunatsiavut government.
Nunatsiavut is the self-governing entity of the Inuit people of Labrador established in 2005 as a result of their land claim settlement.
“I don’t know if the project would have proceeded” if there had been a lengthy court fight, Baikie said.
“Either that or we would not have the benefits that we get, whether it be training, employment or royalties or business opportunities.”
Royalties from the mine have helped pay for education, culture and language preservation, youth programs and job training in Nunatsiavut communities.
There are vast differences between the land claim negotiated by the Inuit of Labrador and the legal action filed by six Wolastoqey chiefs in New Brunswick.
The Wolsatoqey chiefs want title to vast tracts of land where industry, mainly forestry companies, are already operating, in some cases since the 19th century. A finding of title would force those companies to negotiate with the chiefs to continue logging.
In Labrador, the nickel deposits in Voisey’s Bay had not been discovered and there was no mine when the Inuit and Innu began negotiating their land claims.
But when prospectors found deposits in 1994, it became a major issue in the land claims negotiations.
“The governments of the day … would suggest to anyone looking to develop in Labrador that they should engage with the Indigenous groups. Otherwise it was going to be almost a fool’s errand,” Grimes said.
“If it was going to be developed in the best interest of the province, getting there was certainly going to require and need the full support of the Indigenous groups.”
Inco’s willingness to directly negotiate benefits agreements with the Inuit and Innu and pay “significant amounts of money” was also key, he said.
In return for those benefits, both nations excluded the nickel deposit from their land claims for the life of the mine.
“Because they were already seeing benefits and real cash from the company directly,” Grimes said, “they were more willing to talk to us about the exclusion.”
The Inuit resolved their claim in 2005 with the creation of the Nunatsiavut government, the only Indigenous self-government in Atlantic Canada.
The territory covers more than 116,000 square kilometres of land and sea, an area larger than New Brunswick, with 2,300 people living in five small communities.
The Inuit voted 82 per cent in favour of the Voisey’s Bay agreement. Their nation received $53 million in royalties from the mine between 2006 and 2014, court documents say.
The Innu’s land claim still hasn’t been resolved, but Inco struck a benefits-sharing agreement with them as well so the mine could go ahead. It received a yes vote of 76 per cent in a referendum.
“It was an opportunity for our young people to train, for our young people to work,” said Peter Penashue, who was the grand chief of the Innu Nation at the time.
Inuit and Innu people and contractors are hired preferentially as long as they are qualified. The minimum is 25 per cent Indigenous employment but the goal is 50 per cent.
“We’ve had people now start out at the mine and retire from it,” Baikie said. “So they’ve had a career, basically.
“I think what one of the things that’s personally rewarding for me is when I see people that had been on social assistance or unemployed for long periods of time get employment.”
While the history and circumstances are different from the Wolastoqey claim in New Brunswick, the spirit of compromise is a good example of how to resolve contentious disputes, Baikie said.
“For the most part, it has been very respectful, fair,” she said of Vale Inco, the company operating the mine. “They know we take it seriously. It’s not just a document sitting on a bookshelf somewhere.”
Penashue said the company was easier to deal with than governments were and has respected the agreements more faithfully.
There have been bumps along the way, including an Inuit lawsuit when the province argued that Vale Inco’s writing off of construction costs for a refinery in Newfoundland reduced its royalties to zero and meant no money for Nunatsiavut starting in 2015.
A judge ruled in favour of the Inuit last year and ordered the province to pay.
No one from Vale Inco responded to an interview request.
But in the 2008 presentation to an international conference on resource projects and Indigenous relationships, the company said its goal was to “establish and maintain an effective relationship based on mutual respect, co-operation, trust and good faith.”
“Affected communities must know that their voice has been heard and that what they have said has been taken into account,” wrote Tom Paddon, the mine’s general manager, and Isabella Pain, the company’s superintendent of Aboriginal affairs.
“The Voisey’s Bay development is a better project today because of the time it took to reach the needed agreements.”
Penashue said industrial players and the government should realize that “the world is changing very quickly” with more and more legal victories for Indigenous people.
“Go to the table and sit down and negotiate the terms and conditions,” he said. “There’s no way you can avoid it. … There is no investor that is going to put money on questionable land.”
In 2014 the Supreme Court of Canada delivered a clear warning to governments in its Tsilhqot’in Nation vs. British Columbia decision.
“If legislation was validly enacted before title was established, such legislation may be rendered inapplicable going forward to the extent it unjustifiably infringes Aboriginal title,” the court said in the decision.
In New Brunswick, Premier Blaine Higgs said recently that having the Wolastoqey claim go to trial was the best way to resolve ambiguities around each side’s legal obligations.
“That makes it very difficult, when the backs are already up, I think,” she said.
“Open and respectful negotiations or discussions, community consultation” is the better approach. “Hear the words of the people.”
Grimes would not comment directly on the Higgs government’s stance.
“That’s the right of any elected government,” he said. “They’re given a mandate and they interpret their mandate as they understand it.”
But in Labrador, he said, a refusal to negotiate would likely have doomed the mine.
“If we had gone that route, I don’t say it would be developed today,” Grimes said. “That was my sense of it. There was an opportunity here, and the opportunity was largely going to be contingent on whether an accommodation was made.”