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Voisey's Bay Mine and Mill Environmental Assessment Panel Report

14 Aboriginal Land Use and Historical Resources

14.1 Aboriginal Land Use

In its guidelines, the Panel indicated that it would consider the potential adverse effects of the Project on Aboriginal people's current use of lands and resources for traditional purposes, and also on such activities as tourism, outfitting, commercial harvesting and recreation, including opportunities foregone or precluded as a result of the Project.

Although project-caused changes to Aboriginal people's current use of lands and resources for traditional purposes is part of the definition of "environmental effect" under the Canadian Environmental Assessment Act, the Canadian Environmental Assessment Agency provides no guidance on how to define or document such use. The Panel is aware that "current use" can have a range of meanings. At a minimum, it means use during the last few years, because land use patterns vary and no single year can be considered fully representative. In its broadest sense, it means land use within "living memory" as recorded by the map biography method typically used to establish Aboriginal title or site-specific Aboriginal rights. This method produces a comprehensive record of the last 30 to 40 years and, for more limited purposes, a record as long as 60 to 70 years. The Panel indicated in its guidelines that it would consider land claims documentation for the purposes of establishing current use of lands and resources in the context of this review. To determine possible adverse effects of the Project and ways to remediate them, the Panel decided to focus on land and resource use patterns over approximately the last 20 years, and also on possible future uses.

The Labrador Inuit Association (LIA) referred the Panel to its original documentation of land use and occupancy (Our Footprints are Everywhere). It also submitted a report called From Sina to Sikujaluk: Our Footprint, which updated this information for the period 1977 to 1997. According to these documents, the Voisey's Bay area and virtually all of the Landscape Region has been and continues to be in the core of Labrador Inuit territory, and there is much current and traditional use in the area. Inuit experts and participants at community sessions provided specific evidence of this use to the Panel.

The areas including and adjacent to the Project itself, along with the shipping route, are an important part of Nain's harvesting area for both subsistence harvesting and commercial fishing, and possibly for commercial shellfish harvesting in future as the local fishery diversifies. The Voisey's Bay stock complex accounts for the greatest part of the Nain char fishery. The area around Nain is the most heavily harvested of the entire north coast of Labrador. Peak harvesting periods are in spring (April and May) and fall (September through freeze-up in December), although people go out on the land and sea in every month of the year. In spring, people travel on the sea ice to many important fish and wildlife harvesting areas, including sites in Voisey's Bay for char and rock cod, and an area south of Paul's Island for seals. The latter is among the closest sealing sites to Nain. In fall, people travel to the bays for seals and wood, and to the coastal islands to hunt birds and hares.

While the Project site is on the margin of Innu territory, as indicated by maps provided by the Innu Nation, Innu have frequented the Voisey's Bay area for generations. Several Utshimassits elders told the Panel that they were born and raised in that area, and that they have a profound spiritual attachment to it. Innu use of the Voisey's Bay area appears to have diminished since Utshimassits (Davis Inlet) was established at its present location in 1967. Nonetheless, the area (particularly the Gooselands and the Reid Brook system) is important to several families for subsistence harvesting of a variety of fish, birds, small mammals, berries, black bear and seals. Innu also travel on the sea ice, across the proposed ship track, to hunt caribou inland from Nain via the Fraser River.

The Project, especially the winter shipping route, would potentially affect other communities further south. Inuit and Settlers from other north coast communities, and even from Happy Valley-Goose Bay, travel to Nain along the coast, especially in winter, chiefly to gain access to the interior plateau to hunt caribou. Métis and others from the south coast of Labrador also travel to the Nain area to hunt caribou in some years. People in Cartwright expressed concern about the possible effects of accidental oil spills on birds and marine fisheries.

Other Aboriginal groups, such as Nunavik Inuit, the Naskapis Band of Quebec and Innu of Matimekush-Lac John at Schefferville, do not currently use the area itself. However, they assert interests that could be affected if the Project adversely affected caribou population levels or, for the Nunavik, polar bears or beluga.

Neither Inuit nor Innu provided the Panel with current documentation on harvest quantities, although they stated that country food continues to provide a substantial part of the local diet, and is important for both economic and health reasons.

14.2 Harvest Disruption

14.2.1 VBNC Assessment

VBNC predicts the following residual effects (described in detail in previous chapters) from normal operations:

  • loss or alteration of harvesting areas;
  • reduced access to harvesting areas; and
  • loss of mobility or increased travelling times.

These, along with the sense of loss of control over the site, are rated as minor (not significant) during construction, operation and decommissioning, and negligible during post-decommissioning. The effects of accidents, chiefly through contamination, are rated as moderate (significant), although of low probability.

VBNC indicated that it would designate a buffer area around the Project site as a no-hunting zone for safety reasons, resulting in some loss of access. The actual extent of this zone would be established in consultation with LIA and the Innu Nation.

VBNC proposes a number of mitigation measures, some of which have been discussed in detail in the chapters on fisheries, marine mammals, terrestrial wildlife and contaminants. The Project would be a fly-in/fly-out operation, with no resident population to create additional harvesting pressures. VBNC's policy is that no person working for VBNC or its contractors is permitted to hunt, trap or fish at any time during his or her work term at any VBNC camp or facility. At the end of each two-week shift, employees would be returned to their point of pick-up.

VBNC stated that it would negotiate a wildlife compensation agreement in the context of impact and benefit agreements (IBAs) to deal with residual effects. The company suggested that this fund might provide an agreed-upon amount for anticipated losses, with distribution to be decided by a board of elders or community representatives. It would compensate individuals for specific losses or damages, such as loss of property and equipment, or of harvesting opportunities. It would also compensate the community for general losses. Strict rules of evidence would not be required. A joint board with an independent chair would determine compensation for losses resulting from significant unplanned or accidental events.

14.2.2 Government and Public Concerns

Government and public participants stated concerns about the following potential adverse effects of the Project on lands, on access to resources, and on the abundance and quality of those resources:

  • physical loss and disruption of habitat involving the loss of over 750 ha of habitat, including the lakes used as tailings facilities, as well as possible forest fires and possible adverse effects to the Reid Brook system, which could result in significant losses in the Voisey's Bay char stock;
  • disturbance of wildlife - including the effects of shipping on seals, the effects of air traffic on the Gooselands, disruption of caribou movements on land and on sea ice, and the effects of oil spills on seabirds and marine mammals - which could change wildlife distribution, abundance and accessibility;
  • contamination or tainting of fish, shellfish and wildlife by metals, oil spills or treatment effluent;
  • additional harvesting pressures from workers on site, and kills of problem black bears and polar bears; and
  • reduced access to important harvesting areas, such as the Claim Block itself and the port site at Edward's Cove, and the disruption of travel on the sea ice by winter shipping.

LIA indicated a more general concern that the combined effects of port activities, treatment effluent, oil spills and shipping could lead harvesters to avoid Anaktalak Bay altogether. LIA asserted that Inuit would have limited ability to harvest elsewhere, because the entire harvesting area around Nain is fully used.

LIA proposed that compensation should address effects as perceived by hunters, and should include compensation for dislocation and costs of moving to new areas, on a case by case basis. There should also be provision for compensation for major unplanned outcomes, such as a significant loss of char habitat in Reid Brook or waterfowl habitat in the Gooselands, with no burden of proof. LIA wants an absolute liability scheme that would deal with problems quickly as they arose. The Innu Nation approached compensation as more of a communal matter, involving cultural as well as economic losses. It also suggested VBNC establish a fund to be administered by elders. Both organizations expressed concern about the adequacy of company liability insurance in the case of a major or catastrophic event.

Among other things, the Department of Fisheries and Oceans (DFO) recommended

  • that the no-fishing policy on site be strictly enforced and that adequate resources be devoted to this purpose (DFO emphasized that this is VBNC's responsibility, not DFO's); and
  • that VBNC evaluate the need for a program to monitor shellfish in the Edward's Cove area for metals, bacterial contamination and hydrocarbon tainting.

DFO also expressed concerns about the possible development of a black market involving unauthorized trafficking of country food between Aboriginal harvesters and site employees.

The provincial Forestry and Wildlife Branch recommended that the comprehensive no-hunting policy at the site include egging.

Conclusions and Recommendations

The Panel concludes that there would be a low probability of significant or widespread harvest disruption due to adverse effects on the abundance or quality of fish and wildlife resources in the Landscape Region, if VBNC's proposed mitigation methods succeeded, and if the relevant Panel recommendations in other chapters were adopted. Strict adherence to and enforcement of no-hunting and no-fishing policies would also be required.

Recommendation 69

The Panel recommends that VBNC continue its current no-hunting and no-fishing policy on site, and ensure that it is strictly enforced. The policy should be expanded to include a ban on egging. The policy should also provide for termination of employment in the case of unlawful trafficking in fish and wildlife, and ensure that employees are made aware of these consequences.

Recommendation 70

The Panel recommends that VBNC implement its proposed policy of returning employees to their point of pick-up, to ensure that they cannot use the site as a base for hunting and fishing during their time off.

Nonetheless, the Panel considers that certain localized residual effects on animal abundance and quality might occur. Contamination or tainting of shellfish in the vicinity of the proposed port at Edward's Cove might be unavoidable. The affected area might not be extensive, as DFO advised the Panel that similar ports in the province have not experienced major adverse effects and that shellfish closures were in some cases restricted to about 100 m around the site. Nonetheless, if closures were required they could adversely affect future commercial opportunities as well as subsistence harvesting. The Panel has recommended that shellfish in Edward's Cove be monitored for metals, bacterial contamination and hydrocarbon tainting, as this is the site where such effects would most likely occur during operations (Recommendation 26). It is also possible that marine mammals might avoid at least the Edward's Cove area, if not a larger part of the head of Anaktalak Bay, for an unknown duration as a result of Project activities.

The Project might impair harvester access for long periods of time. Areas affected could include

  • the Edward's Cove area due to port activities, and because harvesters might choose to avoid the area because of noise, industrial activities and the perceived risk of contamination;
  • the areas adjacent to and south of the proposed shipping route during winter shipping, if safe and reliable crossings of the ship track could not be guaranteed; and
  • the Gooselands, if mitigation measures were unsuccessful.

In combination, these effects could significantly displace harvesting efforts, to the disadvantage of individual harvesters and their families. If displacement was more than temporary, it could affect the overall success of harvesting of some species. Because of the potentially long-term and irreversible nature of these effects, the Panel concludes that they should be rated as moderate (significant) because they could affect a portion of the local harvester population for more than a generation. The Panel agrees that accidental events, should they occur, could also have significant adverse effects on harvesting.

The Panel recognizes that many Innu and Inuit might feel a loss of a particularly valued part of their homeland if they were displaced by these effects, and that such a loss would be irreversible from an aesthetic, recreational or spiritual perspective. There would be no mitigation for this. Nonetheless, VBNC would have to provide compensation to the extent possible for any harvest disruption that actually occurred.

Recommendation 71

The Panel recommends that VBNC reach agreement with LIA and the Innu Nation about harvesting compensation regimes before the Project is authorized. These compensation regimes should be negotiated in the context of Impact Benefit Agreements and be in place before construction begins. They should include protocols for compensating Aboriginal people for

  • increased harvesting costs incurred by displacement or impaired access;
  • benefits they might have realized from commercial opportunities that they will not be able to exploit because of the Project;
  • damage to equipment or property; and
  • subsistence and commercial harvests that do not happen because the Project has reduced the abundance or impaired the quality of wildlife.

Liability should be sufficient to cover catastrophic events, and the harvesting compensation regime should apply to VBNC's contractors and subcontractors, including their shippers.

These compensation agreements should apply to both occasional individual losses and large-scale accidental or unforeseen events. VBNC should be assumed liable, unless there is proof to the contrary. Onus of proof of the extent and value of a loss should lie with the claimants, according to protocols established as part of the agreement. More baseline data on harvesting activities and outcomes might be needed to ensure that mitigation was working and to develop and implement an effective compensation program. If so, a program for data collection should be negotiated as part of the compensation agreement.

The Panel observes that Project activities might adversely affect traditional harvesters not covered by IBAs.

Recommendation 72

The Panel recommends that VBNC commit to providing compensation on a case by case basis for traditional harvesters, other than LIA or Innu Nation members, who may be adversely affected by, for example, disruption of travel on the sea ice in winter.

14.3 Effects of Project Employment and Income on Harvesting

Many participants at the public hearings were concerned about the possible effects of Project employment on their ability to harvest. They identified several possible outcomes, both positive and negative, of the trade-off between more income and less time. There were concerns about whether families would continue to get what they need from the land when they need it, and whether families would still be able to spend time in the country together, and to transmit the knowledge, skills and values of harvesting to future generations. Both Innu and Inuit insisted that the Project must not harm their ability to maintain harvesting as a source of income and as a way of life. They also stated that going to the country is much more than an economic activity; it has cultural, spiritual and recreational values that are part of their basic identity. Chapter 16 addresses those concerns more fully.

VBNC asserted that income from Project employment would enable harvesters to better equip themselves. At the same time, the rotational employment period - two weeks on followed by two weeks off - would give people reasonable opportunity to engage in harvesting activities. VBNC also stated that, in other Aboriginal communities, rotational employment has had a positive effect on harvesting, on balance.

With respect to monitoring and follow-up, VBNC indicated a willingness to contribute to research on levels of country food consumption and on harvesting activities. It noted that funds for this could also come from the proposed Social and Cultural Protection Fund, whose mandate would include monitoring the broader social and economic effects of the Project and, where necessary, developing appropriate interventions. This fund could also finance programs to support harvesting.

The Panel considers that the effects of wage employment and income would probably, on balance, be beneficial for harvesting, although how individual harvesters and households respond to or experience these effects would vary. Experience elsewhere in the North suggests that subsistence harvesting economies are resilient in this respect, although the result would not necessarily be the same in northern Labrador. Effects should be monitored as part of a more general program of socio-economic monitoring (see Chapter 16), with a view to adjusting employment conditions, if required.

It is possible that one long-range effect of long-term, full-time employment on North Coast communities would be a shift in economic orientation from a predominantly seasonal mixture of employment and harvesting to year-round wage work, with most people doing only occasional harvesting. It is unlikely that the Project would be the sole cause of such a trend, which not all residents would regard as adverse.

14.4 Historical Resources

14.4.1 VBNC Assessment

VBNC conducted historical resource assessments in 1995, 1996 and 1997 that covered part of the VBNC Claim Block. With the cooperation of LIA and the Innu Nation, VBNC also did an archeological assessment in 1996 that involved Innu and Inuit archeological researchers. While a uniform methodology was not applied to the historical resources assessment area, all areas were subject to a general visual inspection. If assessors felt an area could hold historical resources, they used more intensive methods, such as close surface inspection and subsurface testing. VBNC also considered information gathered from personal interviews, a literature review, air photos, map analyses and a predictive model of archeological potential.

A total of 134 archeological and contemporary sites were identified in the assessment area. Most of these sites were found near the shores of Anaktalak Bay, Edward's Cove, Voisey's Bay and Kangeklualuk Bay, and in the Reid Brook Valley. Precise site locations were not published for resource protection reasons but the information was provided to the provincial government, LIA and the Innu Nation.

VBNC recognized that mining activity could destroy or alter some of the historical resources the company identified during its assessment. To mitigate these effects, VBNC developed the historical resources contingency plan, which will address protection during all phases of the Project. This plan includes a policy statement on protecting historical resources, standard operating procedures to be followed if an historical resource is discovered and specific mitigation measures to protect known historical resources.

Archeological sites and artifacts are protected under the provincial Historical Resources Act. This legislation ensures that developments such as the Voisey's Bay Mine and Mill Project, which are likely to alter, damage or destroy heritage resources, are regulated and monitored through archeological impact assessment before development begins. The Culture and Heritage Division of the provincial Department of Tourism, Culture and Recreation told the Panel in its submission that it would manage these matters if the Project is approved.

14.4.2 Government and Public Concerns

The Culture and Heritage Division found VBNC's approach to historical resources satisfactory. It did suggest that VBNC's 1995 historical resource contingency plan be updated to reflect the current status of known archeological and historical resources, and to reflect potential within the historical resources assessment area.

LIA is seeking to secure Labrador Inuit rights to Inuit historical resources and to participate in the governance of their distribution. LIA has also included this issue in negotiations on the social and cultural provisions of its IBA.

LIA questioned the accuracy of VBNC's predictive model for historical resources because it feels it is not possible to predict the location of historical sites across a broad region based on what has already been found on a local scale. LIA also believes the provincial government's Cultural and Heritage Division lacks the resources to adequately monitor sites and compliance with the Historical Resources Act.

Conclusions and Recommendations

The Panel agrees that a comprehensive plan to preserve historical resources is needed so that all sites would be identified and preserved appropriately. The cooperation shown by VBNC to date is encouraging but all parties must continue to be diligent in this area.

Recommendation 73

The Panel recommends that VBNC, as part of its environmental protection plan, reach agreement with LIA and the Innu Nation on the provisions of an historical resources protection and management plan, based on a revision of the existing historical resources contingency plan, before the Project is authorized. This plan should be negotiated in the context of Impact Benefit Agreements and be in place before construction begins.