Mi'kmaq chiefs say N.S. government must consult on every archeological dig

Mi'kmaq chiefs are trying to halt the proposed $18-million refurbishment of a hydroelectricity dam in southern Nova Scotia, saying they have not been adequately consulted.

The claim includes an assertion the province has a duty to consult them every time it issues a permit for an archeological excavation.

"We submit that the Crown has a duty to consult when considering and issuing heritage research permits," Chief Sidney Peters and Chief Deborah Robinson wrote in a May 14 submission to regulators.

Peters was representing the Assembly of Nova Scotia Mi'kmaq Chiefs in the submission, while Robinson was representing Acadia First Nation, the closest First Nation to the Tusket dam project.

The permits are required for any excavations that are expected to uncover items of historical significance. There's been an average of 113 a year over the past five years. In the majority of cases, permit applications are processed within 10 days or less, according to Nova Scotia's Office of Aboriginal Affairs. The office said the province can authorize archeological work in a matter of hours, if or when that's needed. 

UARB invited chiefs to comment

The chiefs have not said how they would be able to handle that many consultations, and acknowledge the province rejects their claim.

"The Crown takes the opposing view and did not consult with the Mi'kmaw Nation prior to issuing the heritage research permits for the Tusket dam refurbishment project," the chiefs wrote.

Nova Scotia Power is currently before regulators defending the proposed cost of relocating an old hydro dam at Tusket in Yarmouth County. The surrounding area, however, is a historic Mi'kmaq settlement and relics have been found there in previous digs. 

This is the first time the Nova Scotia Utility and Review Board has invited Mi'kmaq leadership to comment on the adequacy of Crown consultation in a project — the result of recent Supreme Court of Canada rulings that regulatory authorities must consider whether adequate consultation has occurred.

Relationship building not consulting

Nova Scotia Power has engaged directly with the Mi'kmaq on everything from maintaining fish ladders to preserving archeological sites, but the Assembly of Nova Scotia Mi'kmaq Chiefs said that is not enough.

The chiefs said they also should have been consulted before Nova Scotia Environment issued a water course alteration approval to Nova Scotia Power. The chiefs were responding this week to the Nova Scotia government, which rejects their claims the regulator has jurisdiction to weigh in on consultation in this case.

Justice Department lawyer Sean Foreman said the regulator is reviewing whether Nova Scotia Power is spending its money prudently and the board does not have the authority to carry out what amounts to "a judicial review of the project."

The chiefs said the board does have the jurisdiction to consider the adequacy of consultation and ask it to halt the proceeding.