Closed-Door Negotiations Underway to End Boat Harbour Controversy

Crucial negotiations are under way that could decide the future of a paper mill in Pictou County, and lead to Nova Scotia finally making amends for a toxic mess it unleashed on the area`s residents more than 40 years ago. At stake are the more than 1,200 jobs that rely on the mill, and a cleanup and restoration that could cost more than $100 million.

A six-week investigation by journalism students at the University of King`s College reveals in unprecedented detail the behind-the-scenes dealings that led to the fateful decision by the Nova Scotia Water Authority to turn an idyllic coastal inlet into an industrial waste treatment lagoon. It`s the most comprehensive look ever at one of Nova Scotia`s saddest episodes, one that profoundly affected not only the residents of the First Nations reserve that borders the lagoon, but a wider community of residents and cottagers in picturesque Pictou County.

And for the first time, the investigation tells Nova Scotians about the critical negotiations underway now that could finally bring the story to a close. The Pictou Landing First Nation, backed by the province’s Mi’kmaq chiefs, has bluntly told the province it wants the lagoon shut down and the waste put somewhere else.

It was clear that things were very wrong with Boat Harbour soon after Scott Maritimes opened the mill in 1967. As now, the mill’s waste flowed through a pipeline under the East River and into Boat Harbour. “Initially this was certainly pretty crude,” said Chris Moir, the provincial engineer tasked with finally cleaning up the lagoon. At first, there weren’t even aerators to add oxygen to the water to help break down organic matter.

Since then, the consulting studies have piled up . The first report dates back to 1970, and most have gathered dust. In 1993, the first nation won a $35 million settlement from Ottawa for its failure to protect the band’s interests when the waste-treatment lagoon was created. But fixing the environmental mess was left for the future.

A series of cleanup proposals has come and gone since, the most recent within the past five years. But while the waste is much cleaner than it once was, some of the most toxic chemicals known to science are embedded in the fine sediments at the bottom of the 142 hectare settling lagoon. Just dredging them out will cost Nova Scotia taxpayers $7 to $12 million. A replacement treatment plant is estimated at $100 million.

In December, the province made its latest promise to clean up Boat Harbour, this time saying it would shut down the treatment plant completely. It is now trying to negotiate a deal with the band and persuade it that this time it`s serious, while at the same time finding a way for the mill’s current owner, Northern Pulp Nova Scotia Corporation, to continue operating and producing waste. The province recently gave the mill a $15 million loan to keep it going through tough economic times.

“Obviously, the first goal is to find a solution to the current situation, so that the good people of Pictou Landing (First Nation) would not have to put up with this any longer, put up with the treatment plant and the effluent any longer,” said Brooke Taylor, who took over as minister of transportation and infrastructure renewal in January 2009. “The long term goal is to find a solution that is to their satisfaction.” Taylor’s department is responsible for Boat Harbour.

But the band`s patience has worn thin. It has informed the province that any further discharge of waste into the lagoon, without its consent, is a violation of the band’s collective constitutional rights.

Twila Gaudet is a consultation liaison officer with the Mi’kmaq Rights Initiative. She is assisting the first nation with its case. “For 42 years this effluent has been continuously pumped in,” she said. The band was “under the impression that this is going to get cleaned up in a fairly timely fashion and it still hasn’t been done.

“To be honest with you, they’ve said ‘enough is enough, our community has suffered enough.’”

The current showdown has its roots in events dating back almost a decade.

According to the band’s lawyer, Brian Hebert, the three companies that have owned the mill since 2002, have made payments to the band as part of a memorandum of understanding (MOU) that was supposed to see the waste plant shut down, first by 2005, then by 2008.

The band originally signed that deal with Kimberly Clark. Under it, the first nation was to get almost a million dollars (actually paid some years later) and payments of $200,000 a year, increasing to $220,000 in 2008. Four-thousand hectares of paper company land was also supposed to be transferred to the band, and discussions over that continue.

Dan MacDonald, a band employee since 1977, said when the band signed its deal to receive what he called “consideration” from the paper mill, it knew it had no say in whether the lagoon could continue to be used because the province had lowered the water level in 2005 so it didn’t encroach on reserve lands.

But MacDonald said the band wanted to maximize the advantage to the community of having the lagoon there. “We are trying to make a silk purse out of a sow’s ear.”

Shortly after the band ratified its MOU with the mill in 2002, the province and the company extended the company’s lease of Boat Harbour for 25 years to 2030.

Underlying the MOU was the understanding that the 142 hectare lagoon would no longer be used by 2005. The waste was to be discharged directly into the strait after treatment in the smaller, aerated lagoon, and the large lagoon was to be opened to the sea once more. Boat Harbour has been dammed off since the waste started pouring in. “The idea was to keep the (smaller) aeration lagoon functional and discharge the mill effluent between tides, discharging on the receding tides,” MacDonald said. “Like flushing the toilet.”

But the province put that plan on ice when it realized it could make the situation worse by causing excessive marine plant growth, sucking all of the oxygen out of the lagoon. (link to sidebar). Now, the province has no plan.

“Typically there is a solution. This is one for which we didn’t see one,” Moir said.

The province hired new consultants, but they, too, have yet to come up with an answer. The mill looked at options, but none could eliminate the problem, Moir.

In 2006, the band extended the deal with the paper company, allowing the province and mill to get the job done by 2008. But when the 2008 deadline approached, Boat Harbour was still operating much as it had for years.

And that didn`t sit well with some band members who were never happy the band took money as part of MOU in exchange for consenting to the continued use of Boat Harbour

“The question is, why does council continue to let the mill operate? Why does it continue to take the province’s half-assed promises,” said Patrick Egan, a lawyer representing a group of concerned band members. “The MOU is basically a license to pollute.”

Hebert said the band council was prepared to work with the province and the mill, so long as it appeared a solution could be found that would allow the large Boat Harbour lagoon to be opened to the tides. But in the fall of 2008, the new consultants hired by the province reported back they couldn’t find a way to make it work, and the December 2008 deadline was fast approaching. “So the chief and council decided to go back to what always wanted, close the treatment facility and get it out of there,” Hebert said.

That set the stage for two dramatic meetings with provincial cabinet ministers in November and early December, when the band made its position clear. After the meetings, on December 4, then Minister of Transportation and Infrastructure Renewal Murray Scott wrote to band Chief Anne Francis-Muise. In his letter, he repeated the longstanding and unfulfilled provincial promise to close Boat Harbour. Scott quoted then Aboriginal Affairs Minister Michael Baker, who died March 2, as saying, “to say that the band has been long suffering would be a masterful understatement of the obvious.”

Scott went on to write, “it is our unwavering intention to end that suffering as quickly as possible. It should have been done long ago.”

Scott then went further than had ever been promised before, committing to close Boat Harbour down altogether. He said the province wished to make a “contribution to the community recognizing the negative impact of delay in closing the facility from the intended completion date of December 31, 2008, to the final completion of this major task.” The form of the “contribution” was to be defined later.

The stage was set for the high stakes talks that hold the mill’s future in the balance. A committee made up of the chief and one cabinet minister was to oversee the work.

Right now, the mill pumps out waste under a provincial license that can be cancelled on a month’s notice. And the band has refused to renew its arrangement with the mill, saying it is now void. In a newsletter to the band in February 2009, the chief and band council wrote that they would “fight to protect our collective right to be free from the Boat Harbour treatment facility….The negotiation process will not be smooth and will take time. However our position is strong.”

Meantime, the mill proposed an interim agreement to keep the waste flowing until January 31. That led to a bizarre exchange of money between Northern Pulp and the band. The company sent a cheque for $110,000–the amount that would have been owing at that time under the 2001 MOU. Hebert sent the money back.

“There were payments that were happening all along,” Hebert said. “They sent the regular payment that they would have otherwise made but we sent it back because there was no agreement that had been reached. We didn’t want to take money and they could say that we had agreed to extend the agreement. We want to make it clear to the mil it’s a whole different ball game. We’re starting from scratch. That’s what negotiations are for now.”

The province is responsible for everything dumped into Boat Harbour prior to a 1995 agreement that handed over operation of the treatment plant to the mill. That means that at some point, Nova Scotians will have to clean it up. Moir said it would be easier to clean up the mess if the lagoon could be partly. drained.

As for the future disposal of mill waste, MacDonald favours a plan floated in the early 1990s that would have seen treated waste pumped two kilometres out into Northumberland Strait, then diffused into the seawater. He sees it as the scientifically proven approach. The plan was killed by opposition from fishermen in 1995, but Moir confirms the pumping plan is still one possibility.

For now, Taylor said the province is looking for a new place to discharge waste, somewhere other than Boat Harbour. “We looked at various locations. One had been rejected by a, I guess you could call it, a potential host community. We’re looking at one maybe two other sites, (but) we haven’t communicated those sites publicly yet,” Taylor said. “You have to make sure that the host facility is in the right location relative to the tides and the currents and that type of good stuff. Even though it’s treated, it’s in everybody’s best interests to see it go out to sea and be further dissipated.”

Meantime, some of a $15 million loan announced last month will help Northern Pulp replace a section of fibreglass pipeline that carries waste from the mill to Boat Harbour. It has had ongoing problems with leakage, Taylor said. Leaks resulted in 21 lost production days from November to January. The company filed a proposal to the federal fisheries department to do the work on an emergency basis, Hebert said, and hence bypass the normal environmental screening. The band is concerned about the possible impact on the fishery, and discussions are underway.

Keith Johnson, general manager and chief operating officer of Northern Pulp, refused to speak to this investigation, saying he was bound by an agreement with the band and the province to stay silent. And while Hebert, the band’s lawyer, did speak with us, Pictou Landing Chief Francis-Muise did not respond to requests, including a written request. She offered several curt “no comment(s)” when approached after a band council meeting in early April.

For Moir, the provincial engineer responsible for the cleanup, the job now is to find a way to fix a 42-year-problem that has frustrated so many others and is putting the very future of the paper mill in doubt. “We need to make sure that if we come forward with any kind of solution that it is going to work. We don’t want to repeat the, ‘we thought we had a solution and it’s not going to work.’”

Whatever the province comes up with will be closely scrutinized by the band.

“Everybody in the community will be looking at this very carefully and they’ll want to see the province demonstrate that it is serious,” Hebert said.

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