Membertou's role in cleanup has yet to be determined

By Tanya Collier Macdonald
Cape Breton Post
Fri., May 12, 2006

Sydney - Full consultation and possibly aboriginal consent is necessary before Sydney's cleanup plan should go ahead, says a Cape Breton First Nation's leader.

"Membertou was not consulted," said Bernd Christmas, the community's chief executive officer. "The greater the impact, the greater the duty to consult."

Christmas referred to case law from 2004 that supports the community's legal right for consultation, in particular, the Haida case. In that court challenge, the Supreme Court ruled that the Government of British Columbia must consult with the Haida Nation and accommodate their interests when renewing tree farm licenses issued in an area claimed as aboriginal title lands.

But, there's no need for panel participants to start squirming, said Christmas.

"All of this can be overcome by allowing us to have an active role in the cleanup," he said. "We're extending an olive branch of co-operation."

Christmas said Membertou did formally request $1.8 million in funding from Environment Canada in the late 1990s to conduct an independent study of the sites and to review possible cleanup technologies. That funding wasn't granted. Membertou was also asked to participate in a community liaison committee, but declined because it didn't represent the level of consultation legally required, said Christmas.

There was some movement on the business side of the cleanup when federal government, the province and the island's First Nation communities signed a protocol agreement in 2005. The document guides discussions on economic opportunities from the project and limits bidding to firms with majority First Nations ownership and control. If a bidding company has six or more employees, at least one-third must be aboriginal. There are also rules for subcontractors and joint ventures. First Nations communities across Canada can apply. The first tender is for the remediation of a cooling pond on the sites.

Christmas's recent appointment to Bennett Environmental Inc.'s board of directors was noted during the hearing. The company has constructed a hazardous waste incinerator in Belledune, NB. It was asked if the appointment meant that Christmas was in favour of incineration.

Christmas said he isn't familiar with the inner workings of incinerators. He said the board asked him to participate because of the company's ongoing activities with aboriginal lands across Canada.

"We don't know the pros and cons of incineration," he said. "We have no position on incineration."

Lesley Griffiths, joint review panel chairperson, asked Christmas to describe how adverse impacts from the planned project could impact Membertou if implemented.

Christmas said that it would be difficult for him to respond because the community wasn't asked to participate in a formal presentation of the Sydney Tar Ponds Agency's environmental impact statement. It can be assumed, however, that the community's treaty rights, land-use and fishing rights could be affected by the cleanup.

Following Christmas's presentation, representatives from the Sydney Tar Ponds Agency were quick to arrange a future meeting with Christmas to discuss what the community would consider a full consultation process and ways to implement it.

During Thursday's hearing, the agency was queried on Mullin's Bank off Vulcan Avenue. In the agency's current plan, the property is excluded from cleanup work.

However, when future site use is considered, panel members asked what would be required to include it in the effort. The agency said the amount of remediation would be minimal.

"The (Cape Breton Regional Municipality) might want to know that," said chairperson Lesley Griffiths. The municipality's Master Port Development Committee recently got funding from the agency to study future site use. The study is expected to get underway within the next two months.

Griffiths said the focus on future site use is a welcome change from the agency's position in the beginning of panel hearings.

Cleanup in a click
Web sites that provide information on the joint panel process and the remediation plan include:

Picture not available for caption below:
Bernd Christmas, chief executive officer of Membertou, said the First Nation community is legally entitled to full consultation on potential health and environmental impacts from Sydney's cleanup plans. How that process could be implemented will be discussed during a meeting Wednesday with the Sydney Tar Ponds Agency.