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Industry Canada knocked by Mi'kmaqs.

Industry Canada Minister John Manley signed permits on March 17 that will allow a $4.7 billion trans-Atlantic fibre optic cable project linking Halifax with Dublin, Ireland to get underway. But the Mi'kmaq Grand Council says Manley trampled their people's constitutional and treaty rights in the process.

Mi'kmaq lawyer Bernd Christmas, the director of operations for the Membertou First Nation, N.S. and a lead negotiator for the Mi'kmaq chiefs, says the issue is the right of his people to be consulted regarding developments that affect their constitutional-protected rights, including the right to fish.

Christmas told members of the Indigenous Bar Association of the situation during a presentation he made at its annual meeting in Edmonton on March 18.

"This is a company that's out of Vancouver and just changed its name from Worldwide Telecom, Inc. to 360 Net Works," he said. "A company that's president is the former chief financial officer of Microsoft and there's also heavy play -- 10 per cent ownership -- by guys like Bill Gates. Shaw Cable just purchased $400 million in it. It goes on and on and on."

The undersea cable will connect with the mainland in a small, natural harbor on the Nova Scotia coast that is a traditional Mi'kmaq fishing area.

A draft environmental assessment report dealing with the impact of the cable in the region was made available to the chiefs in December. Technical people working for the Mi'kmaqs were still analyzing the report when, Christmas said, the company approached the chiefs with a request that they agree to allow the project to go ahead.

"For a year-and-a-half they've been deciding this, designing routes, seeking permits, permission from fishing groups, government," he said. "And then not last week but the week before [March 9] they came and met with the Assembly of Nova Scotia Chiefs' technical team, which includes a variety of advisors to the chiefs, and said `we want to build this trans-Atlantic cable. We're quite well aware that you have rights, however, we don't have time. Will you just give us the approval right now `-- at 3:30 Thursday afternoon -- `and forget about reading the environmental screening report, the assessments, etc.' Well, we said `we'd like to help you but we think we should be able to read the thing and get some input from consultants.' So they said, `OK we'll set up another meeting and talk about how the parameters should go.' So we did and again they begged for pre-approval."

Christmas said the company promised me cruets to return to continue the discussions if the chiefs would give their consent and allow the permits to be issued, but the chiefs responded by saying they couldn't agree to just trust them, given the history of the Mi'kmaq people in dealing with outsiders.

"And sure enough, they didn't return," Christmas said. "What happened was, that Friday was the meeting, five business days passed, the file was moved from the Atlantic headquarters of Industry Canada to Ottawa and at 5:30 on Friday afternoon [March 17] the permits were issued by the Industry Canada minister. The Mi'kmaq had no input into the environmental decisions."

The Environmental Assessment Agency's Atlantic regional director, Bill Coulter, said he was surprised the permits were signed.

"I was surprised because there were what I thought were ongoing discussions with the Mi'kmaq at that point and those hadn't concluded. So there were some things which were left unfinished and I guess I was simply surprised that it had occurred that quickly without concluding those items."

Coulter said the government and the company should have approached the Mi'kmaq chiefs earlier but he suggested the chiefs also made mistakes.

"Quite frankly, I think there have been errors made on both sides. We should have engaged the Mi'kmaq earlier, and when I say earlier it should have been at the stage when the project was first made known as opposed to when an impact statement was provided in draft form. So we erred there" he said. "I think the error on the Mi'kmaq side was not getting engaged in looking at these documents when they had a period of three months in which to do that. I know there are political issues and issues with respect to Aboriginal right and entitlement that are key issues for the Mi'kmaq people in Nova Scotia. These are issues that are outside the environmental process."

Christmas said Coulter's comment reveals government officials still haven't come to an understanding of what court decisions like Delgamuukw and Marshall have created in terms of a responsibility to deal with Aboriginal leaders.

"The whole country heard about our treaty right being affirmed [in Marshall] and then -- lo and behold -- one department, Industry Canada, with one stroke of a pen, said, `We don't think it's important enough to warrant disruption of a $4.7 billion project ...'

"We ask for the rule of law to be upheld and, for whatever reason, it seems to not be dealt with appropriately."
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Author:Barnsley, Paul
Publication:Wind Speaker
Date:May 1, 2000
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