Quebec, October 14, 2010 By fax only to 613-957-0941

Panel Manager Project Assessment Canadian Environmental Assessment Agency 22nd Floor, Place Bell Canada 160 Elgin Street Ottawa ON K1A OH3 By fax only to 709-729-5693

Co-Manager Lower Churchill Joint Review Panel Secretariat 33 Pippy Place PO Box 8700 St. John's NL A1B 4J6 By fax only to 613- 957-0935

Daniel Martineau Aboriginal Consultation Coordinator 22nd Floor, Place Bell Canada 160 Elgin Street Ottawa ON K1A OH3 By fax only to 709-737-1859

Todd Burlingame Nalcor Energy, Lower Churchill Project 500 Columbus Drive PO Box 12800 St. John's NL A1B 0C9

Subject: Correction regarding the Unamen Shipu Innu’s comments on the proponent, Nalcor Energy’s consultation report (Nalcor’s 2010 Consultation Assessment Report) in response to file IR# JRP.151.

Maryse Pineau, Tom Graham, Daniel Martineau, Todd Burlingame:

Please note there is an error in the sent version of the Unamun Shipu Innu’s comments regarding the proponent, Nalco Energy’s consultation report (Nalcor’s 2010 Consultation Assessment Report) in response to file IR# JRP.151.

LITIGANTS & ADVISORS 1379 chemin Ste-Foy, Suite 210, Quebec QC G1S 2N2 Telephone: 418-527-9009 Fax: 418-527-9199 Box 199

Item 5 of our comments, titled FILE UPDATE, should read October 21, 2010 instead of October 15, 2010.

Sincerely,

GAUCHER LEVESQUE TABET (François Levesque) Counsel for the Unamen Shipu Innu Quebec City, October 12, 2010

By fax only 613-957-0941

Panel Manager Project Assessment Canadian Environmental Assessment Agency 22nd Floor, Place Bell Canada 160 Elgin Street Ottawa ON K1A OH3 By fax only 709-729-5693

Co-Manager Lower Churchill Joint Review Panel Secretariat 33 Pippy Place PO Box 8700 St. John's NL AlB 4J6 By fax only 613-957-0935

Daniel Martineau Aboriginal Consultation Coordinator 22nd Floor, Place Bell Canada 160 Elgin Street Ottawa ON K1A OH3 By fax only 709-737-1859

Todd Burlingame Nalcor Energy, Lower Churchill Project 500 Columbus Drive PO Box 12800 St. John's NL AlB 0C9

Subject: Comments of the Innu of Unamen Shipu concerning the proponent, Nalcor Energy’s consultation report (Nalcor's 2010 Consultation Assessment Report) in response to file IR# JRP.151.

Maryse Pineau, Tom Graham, Daniel Martineau, Todd Burlingame:

Enclosed you will find a copy of the comments of the Innu of Unamen Shipu concerning the proponent, Nalcor Energy’s consultation report (Nalcor's 2010 Consultation Assessment Report) in response to file IR# JRP.151.

LITIGANTS AND ADVISORS 1379 chemin Ste-Foy, Suite 210, Quebec QC GIS 2N2 Telephone: 418-527-9009 Fax: 418-527-9199 Box 199

These comments are non-limiting and readers are cautioned regarding the fragmentary nature of the information collected by Nalcor as part of its information gathering process.

In addition, owing to the blatant lack of resources available to the Innu of Unamen Shipu and the proponent’s refusal to provide adequate funding for the procedure that the Conseil des Innus de Unamen Shipu intended to initiate with respect to the land use and harvesting plan (Innu-Assi), it was not possible to compile enough information for the use of the Joint Review Panel.

In passing, please note that an Agency employee kindly informed the Conseil des Innus de Unamen Shipu that the Nalcor document had been posted online, rather than Nalcor itself.

Respectfully yours,

GAUCHER LEVESQUE TABET (Francois Levesque) Counsel for the lnnu of Unamen Shipu

LITIGANTS AND ADVISORS 1379 chemin Ste-Foy, Suite 210, Quebec City QC G1S 2N2 Telephone: 418-527-9009 Fax: 418-527-9199 Box 199 CANADIAN ENVIRONMENTAL ASSESSMENT AGENCY

AND

LOWER CHURCHILL JOINT REVIEW PANEL SECRETARIAT

COMMENTS OF THE INNU OF UNAMEN SHIPU CONCERNING THE DOCUMENT “SUPPLEMENTAL INFORMATION TO IR JRP.151 (CONSULTATION ASSESSMENT REPORT)” PRODUCED BY THE PROPONENT, NALCOR ENERGY

Submitted on behalf of the Conseil des Innus de Unamen Shipu by:

GAUCHER LEVESQUE TABET Litigants and Advisors (Francois Levesque) 570 boulevard Charest Est 2nd floor Quebec City, Quebec G1K 9G3 Telephone: 418-527-9009 Fax: 418-527-9199 TABLE OF CONTENTS

1. Background...... 7

2. Information collection by Nalcor on the viewpoints of the Innu of Unamen Shipu concerning the project rationale ...... 7

2.1. Historical overview...... 7

2.2. Selective bibliography ...... 15

3. Nalcor’s approach in relation to the Innu of Quebec and of Unamen Shipu in particular ...... 16

3.1. Selective bibliography ...... 20

4. “Consultation efforts” in relation to the Innu of Unamen Shipu..... 21

4.1. Selective bibliography ...... 27

5. File Update ...... 28

1. Background

On September 30, 2010, the Conseil des Innus de Unamen Shipu received a letter from Lesley Griffiths and Herb Clarke, inviting the Conseil, along with other interested parties, to submit to the Joint Review Panel its comments concerning the supplemental information to information request JRP.151 prepared by Nalcor Energy.

We thank the Joint Review Panel and its collaborators for this opportunity.

The comments below repeat, for the most part, previous comments, in addition to setting out the specific response of the Conseil des lnnus de Unamen Shipu to the proponent’s response (Supplemental Information to Information Request JRP.151).

2. Information collection by Nalcor on the viewpoints of the Innu of Unamen Shipu concerning the project rationale

In point 1.0 INTRODUCTION of the proponent’s document, we were astonished to read the following:

This report [Supplemental Information to IR JRP.151] demonstrates Nalcor's effort to understand the interests, values, concerns, contemporary and historic activities, Aboriginal traditional knowledge and important issues facing aboriginal groups [...]

[Our modifications]

At no time has the proponent, Nalcor Energy, sought to gather the concerns of the Innu of Unamen Shipu regarding the project rationale from the standpoint of the Innu of Unamen Shipu (the interests). We are still trying to identify Nalcor's effort to understand the interests of the Unamen Shipu Nation in connection with the project.

2.1. Historical overview

It should be noted that, owing to efforts made by then-premier of Newfoundland, Joey Smallwood, the British Newfoundland Corporation Limited (hereinafter “Brinco”), a consortium of banks and industrial companies, was established in 1953, and began to promote the construction of a hydroelectric power plant at Hamilton Falls, subsequently renamed Churchill Falls in honour of the former British Prime Minister, Sir Winston Spencer Churchill. In 1958, this corporation entered into a joint venture with Shawinigan Engineering, a subsidiary of the powerful Shawinigan Water and Power Company in Quebec

The joint venture was aimed at working on hydroelectric development at the Hamilton (Churchill) Falls site. However, at the time the site’s potential largely exceeded the requirements of Shawinigan Water and Power, and so there was little interest in pursuing this option.

In 1955, Bill Southam, CEO of Brinco, asked Robert J. Beaumont, President of Shawinigan Water and Power, to try and persuade Quebec Premier Maurice Duplessis and government-owned utility Hydro-Québec to endorse the project. However, Duplessis took the position that it was preferable to develop projects in Quebec rather than import electricity from Newfoundland.1

After Duplessis died, his successor, Paul Sauvé, appeared to be more receptive to the suggestions of the Brinco representatives; he attended a meeting with them in 1959. However, Paul Sauve subsequently passed away too, in 1960. The deaths of the two heads of the Union Nationale coming so close together led to disorganization within the government, which slowed the discussions on the project between the two provinces.

In the general elections held on June 22, 1960, Jean Lesage was elected premier. This event was conducive to a resumption of the negotiations with Brinco (meeting of February 18, 1961). Although Hydro-Québec showed some interest in the project, two years earlier the province had started the construction of the Manic-Outardes project on the North Shore of Québec2, a situation that once again impeded the Newfoundland project.

Brinco then turned to Ontario but owing to the high cost of energy transmission (transmission lines at the time did not cover that aspect of the equation), the price per kWh or TWh was so high that Ontario turned the project down, and Brinco found itself back at square zero.

In 1962, the Diefenbaker government announced its desire to promote electricity exports, opening the door to an agreement with Consolidated Edison, an electricity distributor in the United States.

However, the likelihood of earning profits from a hydroelectric project intended to produce electricity for export to the United States was far from certain in the early 1960s.

1Philip Smith, Brinco: The Story of Churchill Falls, McClelland and Stewart, Toronto, 1975, 392 p. (ISBN 0- 7710-8184-7_ 2 Andre Bolduc, Clarence Hogue et Daniel Larouche, Quebec, l'heritage d'un siecle d'electricite, 1989, page 227 Between 1935 and 1970, electricity prices kept declining, mainly because of the construction of larger and more efficient generating stations that could easily meet the growing market demand.

Discussions were held with the U.S. distributor, but Consolidated Edison set a ceiling price of $0.443 cents per kWh, at the border between Québec and New York State. This price corresponded to the marginal cost of electricity produced by a nuclear power plant, as estimated during the period.

Québec bought Shawinigan Engineering’s stake in the Churchill project in 1963, in the second phase of nationalization of electricity by the province. As a result, Hydro-Québec became a minority shareholder and a key partner in the development of the Churchill Falls site.

Joey Smallwood was furious when he heard the announcement about the acquisition of Shawinigan Engineering by Hydro-Québec.

On April 30, 1963, Lesage announced in the legislative assembly that he was ready to buy all the output from Churchill (Hamilton) Falls if an agreement could be reached between Brinco, Hydro-Québec and Consolidated Edison (New York). At the time, the project was expected to produce 4,500 megawatts and the cost of building the generating station and electricity transmission facilities was estimated at $627 million.

Negotiations between Brinco and the new shareholder began immediately with a view to setting up a long-term supply contract for the electricity to be produced by the generating station, as an essential precondition for the funding of the undertaking. The partners also needed to agree on the terms of the transmission of electricity to a given point, “point A,” located 175 km from the facilities.

However, the matter was complicated by the fact that Québec and Newfoundland could not agree on the border of Labrador, a border that the Innu had never recognized, thereby precluding the use of the word “border” in the documentation.

In November 1963, Brinco proposed ten turbine-generator groups generating electricity at 3 mill/kWh, subject to certain conditions. Furthermore, Hydro- Québec estimated the price of electricity transmission at 1.6 mill/kWh, from the “point of receipt-delivery” to the border with New York State. This price was too high to permit the electricity to be resold on the U.S. market. Brinco decreased its prices at that point, but not enough to satisfy Lesage. The Québec premier talked about the impasse on July 8, 1964 in another speech in the legislative assembly. Smallwood was angry when he also found out that Québec had begun discussions with Atomic Energy Canada Limited regarding the construction of a nuclear power plant in Québec.

The Newfoundland premier stated publicly that he did not need Québec for the transmission of Newfoundland electricity and cited a study showing the technical feasibility of building an underwater power line that would link Labrador, Newfoundland and the Maritimes, which he called the “Anglo-Saxon Route.” No measures were adopted at the time to accommodate Innu concerns or interests.

Brinco referred to this as the “Atlantic Route.” This option was quickly rejected because of the high cost—$941 million—which would have pushed the price per kWh of Churchill Falls electricity delivered to New York or Boston above the half cent mark.

Negotiations broke down in the middle of 1964 but not because of a lack of interest on Hydro-Québec’s part. Premier Smallwood agreed to give Brinco free rein to negotiate an agreement. While technical and financial discussions were under way, the premiers engaged in a polemic debate over the Labrador border—a border that was never recognized by the Innu of Unamen Shipu and regarding which the two governments did not consult the “Indians”.

The Judicial Committee of the Privy Council in London defined the boundary in 1927 in order to settle the dispute over land between Canada and what was then the British Colony of Newfoundland. This decision, which the Innu and Québec never recognized, delineated the boundary between the two territories without taking into account the drainage divide or the traditional territory of the Innu. Some of the drainage basins of Lower North Shore rivers overlap the boundary, a situation that would complicate future development.

Jean Lesage started a confrontation by demanding changes to the border, which Smallwood rejected. The Newfoundland premier made it clear that he did not like the idea of Québec selling “his” electricity to the Americans.

Meanwhile, the negotiations were moving forward. In June 1965, Brinco thought it had an agreement with an offer of 2.55 mills/kWh. Jean Lesage turned it down, because Hydro-Québec did not have a firm agreement with the United States. On July 21, 1965, the federal Minister of Finance, Walter L. Gordon, announced a tax measure benefiting Newfoundland, which allowed the price of electricity to be reduced. Negotiations with potential purchasers in New York and elsewhere in New England stalled.

Robert A. Boyd, the new general manager of Hydro-Québec, was convinced that Hydro-Québec should purchase all the output, even through the growth in Québec demand did not justify purchasing the power generated by the plant in Labrador (32 TWh) considering the estimated generating capacity of the Manic-Outardes plant, which was still under construction.

On February 9, 1966, the commissioners of Hydro-Québec submitted an offer at 2.45 mills/kWh to the president of Brinco and to Premier Lesage. Brinco accepted the offer immediately but the premier was slow in responding. On June 5, Lesage was replaced by Daniel Johnson. The new Québec premier was reluctant to commit to Brinco’s project. Like Duplessis before him, he questioned the need to develop a river in Labrador when there was immense untapped potential at James Bay.

He finally signed an agreement in principle on October 6, 1966.

Arduous negotiations then began on the financial arrangements for the undertaking—expected to cost $666 million—as well as on the technical aspects related to delivering the electricity produced by the generating station.

In March 1967, the parties agreed on the construction of three 735-kilovolt power lines, the same voltage as that used by Hydro-Québec to transmit power from the generating stations of the Manic-Outardes complex to customers in southern Québec.

The cost of building transmission lines on the Québec side amounted to about $200 million.

Churchill Falls Corporation (CFL Co.) raised capital through a share issue in October 1967. The different shareholders’ stakes were as follows: Brinco, 63.3%; Hydro-Québec, 16.3%; Rio Algom, 10.4%; and the Newfoundland government held the remaining 10%.

Funding difficulties nonetheless remained. Major institutional investors— banks and insurance companies—were reluctant to underwrite the US$500 million bond issue—the largest private issue ever at that time—without the assurance that the electricity would be sold and that the Québec government would agree to guarantee, through a giving in payment, that the construction would be completed in the event of default by the proponents. The directors of Churchill Falls Corporation did not wait for a final agreement to be signed; instead they went ahead with the construction of the generating station in 1967, in order to meet the deadline for the initial deliveries in May 1972. They used advances and short-term loans from Canadian banks.

The power contract was signed on May 12, 1969 by Jean-Claude Lessard and Yvon De Guise of Hydro-Québec and by Donald J. McParland and Eric Lambert of Churchill Falls Corporation. The funding agreements for the contract were signed between May 12 and 15 by about 50 lending institutions scattered across North America.

Under the power contract and shareholders’ agreements, over a period of 40 years (renewable for an additional period of 25 years in 2016) Hydro-Québec would purchase all the electricity produced by the generating station, except a 300- megawatt block, for 0.29645 cents (2.9645 mills) per kWh during the first five years, and thereafter at a price that would decline to 0.25426 cents (2.5426 mills), over the last 15 years of the initial agreement. The exact selling price of the electricity generated at Churchill Falls was not set until 1975, once the final cost of construction—approximately CAN $900 million—was determined. The official completion date was set at September 1, 1976.

As part of the terms of the $5 billion power contract, Hydro-Québec agreed to share the risk associated with the undertaking. It would pay all interest exceeding a maximum rate of 5% on the bonds issued by Churchill Falls Corporation (the bonds would bear interest at a rate between 7¾ and 8%), guarantee the loan, assume the Canadian dollar exchange rate risk on the bonds issued in US dollars, and buy $100 million worth of bonds. The agreement gave Hydro-Québec a 34.2% stake in CFL Co., which owned the facility.

Scandalized by the prices set out in the contract and wanting to develop downstream hydroelectric potential at Gull Island (and probably Muskrat Falls), the Newfoundland government bought Brinco’s stake in CFL Co. in June 1974, through Newfoundland and Labrador Hydro, and it sought to renegotiate the power contract with Hydro-Québec. In view of the high rate of inflation prevailing in Canada at the time, the federal government offered some financial assistance, but the Newfoundland government deemed it insufficient, and the Gull Island project was deferred.

Newfoundland then studied the possibility of building a high voltage power line under the Strait of Belle Isle to transmit electricity from Churchill Falls to St. John's. However, the province was entitled to only 300 megawatts under the terms of the 1969 contract, which was deemed insufficient to justify the investment required to build the underwater line. On August 6, 1976, the Minister of Mines and Energy, John Crosbie, asked CFL Co. to purchase 800 megawatts of power subject to the same conditions as Hydro- Québec. However, CFL Co. responded that it could not comply with this request owing to the terms of the contract.

Frustrated by this turn of events, the Newfoundland government then undertook to repeal the water rights that it had granted to Brinco through the Upper Churchill Water Rights Reversion Act.

A legal battle then began which would last a decade and end up before the Supreme Court of Canada twice. The court ruled in favour of Hydro-Québec both times, in 19843 and 1988.

More recently, Nalcor and Hydro-Québec had to reach an agreement in order to allow Newfoundland to use the transmission lines in Québec to sell 130 megawatts of Churchill Falls power on the market in New York State. The agreement, with a five-year term, was supposed to pay CAN $40 million to $80 million to Newfoundland. However, the agreement fell through and Nalcor filed two court applications in Québec against Hydro-Québec. The first application, before the Régie de l’énergie, was denied. In the second application, which is before Québec Superior Court, Montréal, Nalcor is seeking to reopen the 1969 agreement. We believe that this attempt will fail.

It is clear that the proponent, Nalcor Energy, is pursuing the same goal as its predecessors (Brinco, Churchill, etc.), that is, to once and for all remove the burden that Hydro-Québec has imposed on it in the form of energy transmission prices. It is also clear that the Gull Island and Muskrat Falls projects, which have been on the drawing board since the 1970s at least, were not intended to provide power for Newfoundland and Labrador but rather for export purposes, a situation that, according to the Innu of Unamen Shipu, removes all legitimacy and justification for the project. Considering also Newfoundland’s intent dating back to 1974 to build an underwater power line, real consultations should have been held with regard to the route of the undersea cables and overland lines. The absence of consultations on this topic shows that Nalcor was not interested in holding real consultations with the Innu of Unamen Shipu.

From the very beginning of the projects (Hamilton Falls and Lower Churchill), the opinions of the Innu of Unamen Shipu have never truly been considered.

3 Reference re Upper Churchill Water Rights Reversion Act, [1984] 1 S.C.R. 297 and Hydro-Quebec v. Churchill Falls (Labrador) Corp., [1988] 1 S.C.R. 1087 The whole story recounted above amounts to a quest for economic and political benefit, in which Aboriginal rights were only a very minor consideration.

We were dismayed to note that Nalcor stated, in point 1.0 INTRODUCTION of its document, that it had made an effort to understand the interests of the Innu of Unamen Shipu.

Here we have a corporation, a government that since the 1950s has been concerned solely with making profits, as described above, and that has stated in writing that its report “demonstrates Nalcor's effort to understand the interests, values, concerns, contemporary and historic activities, aboriginal traditional knowledge and important issues facing aboriginal groups.”

It would be difficult to prove the contrary, given that Newfoundland has been working on this project for decades. Why then has it not made the necessary efforts to “understand the interests” of the Innu of Unamen Shipu during all these years?

It is against this background that we will seek to comment on the document that the proponent, Nalcor, has submitted to the Joint Review Panel.

2.2. Selective bibliography

Andre Bolduc, Du genie au pouvoir : Robert A. Boyd, a la gouverne d'Hydro- Quebec aux annees glorieuses, Libre Expression, Montreal, 2000, 259 p.

Andre Bolduc, Clarence Hogue et Daniel Larouche, Quebec, /'heritage d'un siècle d'electricite, 1989.

Philip Smith, Brinco: The Story of Churchill Falls, McClelland and Stewart, Toronto, 1975, 392 p.

Jason L. Churchill, “Pragmatic Federalism: The Politics Behind the 1969 Churchill Falls Contract,” in Newfoundland Studies, Vol. 15, No. 2, 1999, p. 215-246.

James Feehan, “The Churchill Falls Contract: What Happened and What's to Come?,” in Newfoundland Quarterly, Vol. 101, No. 4, 2009, p. 35-38.

James P. Feehan and Melvin Baker, “The Origins of a Coming Crisis: Renewal of the Churchill Falls Contract,” in Dalhousie Law Journal, No. 30, 2007, p. 207-257. 3. Nalcor’s approach in relation to the Innu of Quebec and of Unamen Shipu in particular

In point 6.1 of its document, which is entitled “Approach,” the proponent states that it has outlined the written sources upon which the study is based.

The following sources are described:

− The documents drafted by Hydro-Quebec for the La Romaine project

−The demographic and economic statistics

− The generic data in Chapter 6 was mainly taken from Hydro-Quebec's La Romaine Complex impact study; a book by Jean-Paul Lacasse entitled Les Innus et le territoire; the Nitassinan studies conducted by the CAM; and the Web sites of Aboriginal departments and organizations.

None of these documents were prepared with the aim of assessing the real impacts of the project. Furthermore, these documents predate the Panel’s requirement that the proponent provide it with information about the project’s impacts on the Innu of Unamen Shipu.

In its document (Supplemental Information), the proponent draws heavily on documents provided by Hydro-Québec at the Bureau d’audiences publiques sur l’environnement (BAPE) hearings in Québec concerning the La Romaine project to support its claim that the Lower Churchill project will not affect the links between the Innu of Unamen Shipu and caribou herds in Labrador, because the Innu of Quebec, and Unamen Shipu in particular, do not use the project area concerned.

The proponent, which is currently at war with Hydro-Québec as mentioned above, stated before BAPE (page 20 of BAPE report 256, Rapport d'enquete et d'audience publique, DM62, on page 4) that [Translation] “The Newfoundland and Labrador government shares this concern [(“impact on the Caribou”] and foresees impacts on the caribou population of Labrador.” This double talk casts serious doubt on the credibility that the Panel must accord to the proponent’s process and documents. It should be kept in mind that in February 2010, in a letter, the Joint Review Panel asked the Conseil des Innus de Unamen Shipu as well as the other councils affected, in accordance with the terms of reference related to the Aboriginal rights, “to provide information related to the nature and scope of potential or established Aboriginal rights or title in the area of the Project, as well as information on the potential adverse impacts or potential infringement that the Project/undertaking will have on asserted or established Aboriginal rights or title."

As mentioned earlier, none of the documents studied by the proponent are related to the nature and scope of potential or established Aboriginal rights or title in the area of the Project.

At that time, the information provided on this topic by Nalcor was deemed insufficient by the Innu of Unamen Shipu and by the Joint Review Panel. That is why the Joint Review Panel mentioned, in its letter dated February 15, 2010, that in order to help Nalcor obtain information about the use of resources and land for traditional purposes by Aboriginal groups, the Joint Review Panel [Translation] “encourages your community to collaborate in order to make this information available to the proponent in a timely manner.”

To this end, the Conseil des Innus de Unamen Shipu held a meeting back then with the proponent, Nalcor Energy, to find a way for the Innu of Unamen Shipu to provide information to the Joint Review Panel and to help the proponent provide appropriate information to the Panel about the nature and scope of potential or established Aboriginal rights or title in the region covered by the project, as well as information on the potential negative effects or infringement of the project or construction on potential or established Aboriginal rights or title.

The Conseil des Innus de Unamen Shipu moreover delegated two members of the Band Council and their advisors to go to Nalcor’s office in St. John's, to try and find the most effective way of gathering pertinent information of this type (the nature and scope of potential or established Aboriginal rights or title in the region covered by the project, etc.).

After several weeks of negotiations, the proponent proposed to carry out a study in the Unamen Shipu community to determine the current use of the area of the project by the Innu of Unamen Shipu.

According to the Unamen Shipu community, this study was supposed to address a number of elements that would reasonably enable the Band Council to have an idea of the impacts on their Aboriginal rights and free exercise of those rights. For example, the concerns of the Unamen Shipu community regarding the mercury level in the water caused by the project were expected to be reflected in the study by Nalcor.

However, several stages are involved in measuring these levels in a credible manner (theoretical approach in the present case).

First, a baseline level must be determined in the target population through a two-stage process.

A food survey must be conducted to identify the species of fish and waterfowl consumed along with the locations where fishing and hunting is carried out. Also, hair sampling must be done to determine the baseline mercury concentrations existing prior to the project. A table is then prepared to assist in determining the baseline values for the populations affected by the project.

The survey protocols also provide that samples be collected from children, since they belong to a more vulnerable population subgroup.

The proponent must also draw up a table showing the sample size, with the same data for women aged 18 to 39 (vulnerable group), the mean concentration (in ppm), the highest concentration in the population at large and the mean concentration in the vulnerable group. The proponent was also supposed to study, with respect to the Unamen Shipu community, a scenario in which, for example, the total consumption of trout from environments not affected by the project is replaced by species taken from the reservoirs, in order to have an idea of the impact of future exposure (theoretical schema).

In summary, in our view, a study at least exceeding that done by Hydro-Quebec in the La Romaine project should have been carried out to assess the real impacts of the Lower Churchill project.

Similarly, if we look at APPENDIX 4 in the proponent’s document, a serious deficiency is immediately apparent in the methodology employed by Nalcor (study carried out at Pakua Shipi).

Indeed, it is required and traditional in Innu communities to exchange food on a regular basis. For example, at the last meeting between the elected Innu of Unamen Shipu and Pakua Shipi, in July 2010, the Innu of Unamen brought their Pakua brothers some lobster meat and other traditional foods gathered in their region. Of course, the Innu of Pakua prepared for their Unamen Shipu brothers some large salmon that they had caught in the Pakua River (Riviére Saint- Augustin) and elsewhere. These traditional exchanges are documented and take place between Tsheatshit and Pakua Shipi, and Pakua Shipu and Unamen. Thus, caribou from Shefferville makes its way to tables in the south and fish from the south ends up in the north, and so forth, since family members are divided among the different communities.

The proponent does not ask any questions about the nature, frequency or duration of these exchanges. This is a serious deficiency, since there is nothing to guarantee that none of the fish, game or meat consumed at Pakua Shipu comes from the project site, since no questions were asked in this regard.

Throughout the negotiations with the proponent, the proponent imposed the sine qua non condition that the study be done within a three-month period, with a budget well below the minimum amount required to pay the experts helping the Band Council. This created a totally unrealistic situation in light of the specialists needed (anthropologists, biologists, sociologists, etc.) in order to assess the actual and future impacts of the project.

We mentioned the study on exposure to lead but that is merely an extremely fragmented example of the research that must be carried out.

That is why a breakdown in the negotiations occurred between the Unamen Shipu community and the proponent, Nalcor. From the negotiations, it appears that the proponent was more concerned with the deadline set by the Joint Review Panel than with its obligation to provide information to the Panel reflecting the viewpoints of Unamen Shipu.

To sum up the situation, the Band Council of Unamen Shipu does not have the technical or financial means to provide a response to the Panel (information request JRP 151) and the proponent is not willing to provide us with resources we consider adequate. Furthermore, at the time of writing, Nalcor owed money to the Band Council for its trip to St. John's.

The foregoing describes the shaky approach that Nalcor adopted, in relation to the Conseil des Innus de Unamen Shipu, with a view to adequately informing the Panel.

This documentation approach fails to gather all the data that are available or that can readily be obtained by a party that truly wants to demonstrate its effort to understand the interests, values, concerns, contemporary and historic activities, Aboriginal traditional knowledge and important issues facing aboriginal groups over an appropriate time period and with adequate financial resources. 3.1. Selective bibliography

Health Canada (1998). Provisional Tolerable Daily Intake for Methylmercury.. Ottawa, Health Canada Bureau of Chemical Safety, Food Directorate.

INSPQ, 2003. Élude sur I éetablissement de valeurs de référence d’éléments traces et de metaux dans le sang, le sérum et l'urine de la population de la grande région de Québec. Institut national de santé publique du Québec, octobre 2003.

JECFA (2004). Safety Evaluation of Certain Food Additives and Contaminants. Prepared by the Sixty-first meeting of the Joint FAO/WHO Expert Committee on Food Additives. WHO Food Additive Series: 52 World Health Organization, Geneva. JECFA (2007). Safety Evaluation of Certain Food Additives and Contaminants. Prepared by the Sixty-seventh meeting of the Joint FAO/WHO Expert Committee on Food Additives. WHO Food Additive Series: 58. World Health Organization, Geneva.

National Research Council (NRC). Toxicological effects of methylinerczny. Washington DC: National Academy Press; 2000. Rice DC, Schoeny R, Mahaffey K (2003). Methods and rationale for derivation of a Reference Dose for methylmercuty by the US. EPA (2003). Risk Analysis 23(1):107-115. Santé Canada (2008). Questions supplémentaires de Santé Canada – Revue de confomité Complexe hydroélectrique La Romaine. Lettre adressée à la gestionnaire de la commission fédérale d'examen. 25 août 2008.

Santé Canada (2008). Questions et commentaires de Santé Canada – Revue de conformité Complexe hydroélectrigue La Romaine. Lettre adressée à la gestionnaire de la commission federale d'examen. 21 avril 2008.

Santé Canada (2006). Protocole d'étude et questionnaire alimentaire pour les Innus – Complexe de La Romaine. Lettre adressée à Hydro-Québec. 10 novembre 2006. Santé Canada 2007a. Évaluation des risques pour la santé liés au mercure présent dans le poisson et bienfaits pour la santé associés à la consommation de poisson. Rédigé par les scientifiques du Bureau d'innocuité des produits chimiques, Direction des aliments, Direction générale des produits de santé et des aliments, Santé Canada. mars 2007. Intn://www.hc- sc.uc.ctan-an/pubsimercurtmerc fish poisson-fra.php Santé Canada 2007b. Mise à jour de la stratégie de gestion des risques actuelle en matière de présence de mercure dans le poisson vendu au detail. Rédigé par les scientifiques du Bureau d'innocuité des produits chimiques (BIPC), Direction des aliments, Direction générale des produits de santé et des aliments, Santé Canada, mars 2007. httn://www.hc-sc.ac.caffn- an/pubs/mercurfrisk-risque soar-fra.ohn Scientific Advisory Committee on Nutrition and Committee on Toxicology (SACN), (2004). Advice on fish consumption: benefits & risks. United Kingdom Food Standards Agency and Department of Health. Her Majesty's stationary Office. London. Available at: hao://wwwfood.aov.ukimultimedia/pdfs/fishrecort200401.pdf WHO 2008. Guidance for identifying populations at risk from mercury exposure. Issued by UNEP DTIE Chemicals Branch and WHO Department of Food Safety, Zoonoses and Foodborne Diseases. August 2008. httn://www.who.int/foodsafetv/publications/chemfmercurvien/index.htmi 4. Consultation efforts in relation to the Innu of Unamen Shipu

In point 8 of its response document, the proponent states that it consulted the documents listed below in order to inform the Panel about the impacts of the project with regard to the Aboriginal rights of the Innu of Unamen Shipu:

• The environmental impact study for Hydro-Quebec's La Romaine Complex project, Volume 6, Milieu Humain;

• The Web site www.versuntraite.com of the Secretariat aux affaires autochtones;

• The community profiles released by the Department of Indian Affairs and Northern Development;

• The 2009 Indian Register published by the Department of Indian Affairs and Northern Development;

• The 1996, 2001 and 2006 community profiles released by Statistics Canada;

• The 2009 demographic estimates released by Statistics Canada;

• The Ètude sur l'occupation et l'utilisation du territoire par les Montagnais de la Romaine released by the CAM in 1983;

• The book Au pays des lnnus : les gees de Sheshatshit by Jose Mailhot.

• The Les Montagnais et la faune research report by Charest et al. (1990) ;

• The article entitled “150 Innus excercent leur droit ancestral de chasse au caribou” released by Cardinal Communications.

We note, once again, that none of the documentation is devoted exclusively to the project under study.

This serious deficiency in Nalcor’s efforts to adequately fund research and furnish realistic data with regard to Unamen Shipu has resulted in a situation whereby much of the data supplied by the proponent is inaccurate.

For example, on page 8-4 of the Supplemental Information document, in the section on Economic activity sector, the proponent states that:

“Only two private businesses operate on the territory: a hardware store and a Convenience store. “

Note, however, that the Band Council has an outfitting business and a fishing business.

A forest clearing company, Entreprise Musquaro Inc., likewise belongs to the Band Council and operates within the territory. This company is currently performing forest clearing work from Unamen Shipu to Kegaska on behalf of the company Pakatan Meskenau (in which the Band Council is a partner).

The company Société Mukutan Inc., which belongs to the Band Council, also hires silvicultural workers.

Another company belonging to the Innu of Unamen Shipu, Innu Meskanau, does road construction work on the territory. There are other examples as well.

The information provided, which is readily available from the Registraire des entreprises du Quebec, http://www.reoistreentreprises.gouv.qc.ca/fr/default.aspx, is incomplete, to say the least.

We were also astonished but very pleased to read that “the seal skin treatment plant was to be relaunched.”!

In reality, the Band Council’s finances are under co-management owing to the chronic lack of financial support from governments. The statement to the effect that the seal plant will be relaunched is gratuitous as well as unfounded and it shows the limited effort the proponent put into its investigation. It should be kept in mind that the Guidelines (section 4.6.1(1)) require that the proponent provide a description of the mitigation measures aimed at maximizing employment opportunities for the Aboriginal community concerned. By failing to mention the existence of these companies, Nalcor is taking shortcuts, to say the least.

Another example of this blatantly lax approach can be found in table 8-3 (page 8- 8) of the proponent’s document.

In that table, it is mentioned that the Innu of Unamen Shipu eat “Partridge Blanche,” an animal that does not even exist. Did they mean Uapleu, willow ptarmigan (Lagopus lagopus)?

It is therefore not surprising to read, in table 8-4 of the document under consideration, that the proponent states that none of these birds are eaten.

On page 8-9 of the document, the proponent states: “Available data therefore do not show frequent contemporary territory use in the Project area.”

As well, in its document (Supplemental Information), Nalcor states that in general the territory affected by the project is not used by the Innu of Unamen Shipu and it argues that the project will not affect the Innu of Unamen Shipu or of Quebec in general.

This information is inaccurate and, contrary to what Nalcor states, the available data actually indicate the following.

The area of the project and the territory located farther north on the Labrador Highway is covered by a hunting prohibition order. The prohibition zone in question is located between the Metchin River and Goose Bay and covers the area of the project.

Many Innu hunters from Unamen Shipu and Pakua Shipu go there every fall and winter to hunt caribou, and sometimes in the spring, from Churchill Falls to Goose Bay. They hunt caribou as well as ptarmigan, this mysterious “Patridge Blanche” that is considered a treat by the community elders.

The death of an Innu hunter who returned from that area in November 2009 moreover poisoned relations between the five Innu bands in Quebec and the wildlife officers in the Newfoundland government.

Jean-Marc Bellefleur, 47 years old, an Innu from Unamen Shipu, died after falling ill during a hunting trip, in November 2009, in the above-described area. Newfoundland conservation officers detained the Innu group for three hours on the road to the Churchill Fall's hospital, preventing the evacuation of Mr. Bellefleur, who was in a critical state. The hunter died on his arrival at the hospital in St. John’s.

Furthermore, owing to the intransigence of the Newfoundland government in enforcing the laws prohibiting hunting in the part of the area affected by the project, many of the Innu interviewed (for example, Pakua Shipi) omitted to say that they hunted in the project area out of fear of legal reprisals by the Newfoundland authorities, a situation that occurs almost every year (seizure of snowmobiles, hunting weapons, court charges, etc.). Nalcor wants the Panel to think that the Innu do not hunt in the area. Note that two Innu from the Pakua Shipi community currently face charges in Labrador for hunting in the project area last spring (Supreme Court Trial Division Happy Valley-Goose Bay). There are many stories in Unamen Shipu going back decades about hunting gear being confiscated in the project area. A simple discussion between Nalcor and Newfoundland wildlife officers or authorities would have enabled Nalcor to obtain this information. Nalcor could also have consulted the court case docket at Goose Bay, which would have required minimal effort. All the incidents mentioned above are deplorable but they indicate that the Innu of Unamen Shipu still hunt in the project area and that they have never stopped doing so. What is more, the hunting prohibition zone imposed by Newfoundland, combined with the flooding of the area, represent major cumulative effects that will cause a serious prejudice to the Innu of Unamen, and Nalcor’s response document does not make any reference to this.

In the book by Professor Jean-Paul Lacasse, which is cited by Nalcor, there is a section that reads as follows (a la page 54):

[Translation] “We have pointed out that abstract words such as property, possession or property rights do not exist in the Innu language. Other words are used to express their attachment to the land: tipenitam which carries the sense of responsibility, management or control of a thing and kanauenitam which relates to the possession of a thing for safeguarding. Innu discourse related to territory, as we have seen, is chock full of words like this when Aboriginal society’s concept of “ownership” is discussed. This is why Europeans would never have seen signs with expressions like “Do not trespass” or “No hunting allowed” when they reached Innu territory. As Orens Lyon said (1984: 9), such a sign would mean something like “Do not breathe.” This is because the land represents life.”

In summary, the Innu of Unamen Shipu have not stopped hunting on the territory covered by the project. They have simply been declared personae non grata on their own lands, which, in the context of its consultation duty, appears to suit Nalcor, since, by prohibiting access to the territory, Newfoundland has eliminated the traditional activities that took place there thousands of years ago.

Flooding of the territory, combined with these prohibitions in the project area, therefore represents a major cumulative effect on Aboriginal rights and the exercise of those rights in the project area. This effect is not taken into account at all by Nalcor, in spite of the lip service it gives to the matter. For Unamen Shipu, Nalcor's effort to understand can be equated with Nalcor's effort to hide the truth.

Furthermore, not only does the Unamen Shipu community have Aboriginal rights to defend on the territory, but the proponent takes for granted—wrongly—that the patterns of use of the territory will never change. The project will provide easier access to the river, which will definitely have the effect of drawing the population. Consumption of fish is bound to increase, leading to a likely increase in the mercury levels in users of this resource, for which Nalcor has failed to provide baseline values. The same holds true with regard to hunting (Caribou, suitable habitat favourable for waterfowl, etc.).

The most shocking element in this document is table 8-5, where the proponent, in an attempt to summarize the project issues, writes about the concerns of the Innu of Unamen Shipu with regard to hunting, trapping and culture:

“This issue has been addressed. No interaction found between the project and Innu Alitun practices of the Innu of Unamen Shipu.”

Therefore, to the extent that (as some people infer) the project is favourable for waterfowl, consumption of these birds will increase, and will extend throughout the Lower North Shore, in the United States and even in South America. These birds are migratory and will not remain on the reservoir waters later than October, since that is when they undertake their fall migration.

The only difference is that these birds, particularly the piscivorous ones, will exhibit lead exposure levels higher than they had prior to the project.

Consequently, the fact that the proponent does not have tangible indicators of the migration of these birds coupled with indicators or data on the hunting of migratory birds by the Innu of Unamen Shipu throughout the territory, not just in the project area, points up the lack of effort the proponent put into its research and its failure to comply with the Guidelines.

Whether hunting is done at Muskrat Falls, Gull Island or Unamen directly has no bearing on the adverse health effects for the Innu or on the hunting grounds they may have to abandon in order to find new locations where birds affected by lead do not go—assuming that this is even possible, since migratory birds migrate.

Here is what Nalcor writes concerning the impacts on the health of the Innu of Unamen Shipu: Impacts on health: - on dietary practices:

This issue is not related to the project.

Along the same lines, we urge the Panel to note, based on the maps provided by the proponent, that no Innu communities at all frequent the project area, not Matemekush, Nutashkuan, Pakua Shipi or Unamen Shipu. The route shown on the maps steers clear of the project area, which is highly suspect, in light of the frequent use of the project area that is demonstrated above. In conclusion, with regard to this topic, the methodology, the information collected and the results of the supplementary steps taken by Nalcor show the lack of effort the proponent has devoted to the legitimate concerns of the Joint Review Panel and the Innu of Unamen Shipu. In our opinion, Nalcor should be asked to make a real effort to study the project issues.

In our view, the Supplemental Information Report in response to request JRP 151 constitutes a purely cosmetic exercise undertaken in an offhand manner by the proponent, which does not come close to meeting the requirements of the Guidelines. As such, the supplementary information provided by the proponent does not comply with the standards put in place by the Guidelines, from the viewpoint of the Innu of Unamen Shipu.

4.1. Selective bibliography

Armitage, P., and M. Stopp, Labrador Innu Land Use in Relation to the Proposed Trans Labrador Highway, Cartwright Junction to Happy Valley-Goose Bay, and Assessment of Highway Effects on Innu Land Use. 2003.

Cardinal Communications. 2010a. 150 INNUS exercent leur droit ancestral de chasse au caribou. Groupe CNW.

Clément, D., Le Savoir Innu relatif a la Unaman-shipu. Rapport presente a Hydro-Quebec Equipement, 2007.

Hydro-Québec., Étude d'impact sur l'environnement, Complexe de la Romaine. Vol. 6, Milieu Humain –Communautés innues et archéologie, 2007.

Jean-Paul Lacasse, Les Innus et le Territoire, Les Éditions du Septentrion, 2004, 274 pages. 5. File Update

In spite of what Nalcor indicates4, the proponent’s response documents (Supplemental Report) were not sent out to each community. We have discovered that they were sent all mixed up in a box to one of the offices of the Canadian Environmental Assessment Agency. We found out about them on the Internet and we thank the Agency for having kindly informed us about the document and for posting it online.

Since the deadline for responding to the document is October 15, 2010, we deplore the attitude given that some isolated communities do not have consistent Internet access, because of the effect of weather conditions. Therefore, owing to the proponent’s lax approach, the comments of some less fortunate communities may not reach the Panel in due time. For this reason alone, Nalcor should be instructed to do the work over again.

On September 27, 2010, Nalcor held an information session in the community of Unamen Shipu to inform the Innu of Unamen Shipu about the project.

No specialists (biologist, etc.) were on hand to explain the true issues related to the project. Nalcor simply gave an overview.

Negotiations were also held between Nalcor and Unamen Shipu so that Nalcor could provide technical and financial assistance to Unamen Shipu with a view to providing appropriate information to the Joint Review Panel.

To date, the requests that Unamen has made to Nalcor have not been seriously taken into consideration, in our view, whether the request related to the timeframe for studies or the requisite technical and financial assistance.

As the Conseil des Innus de Ekuanitshit indicated in its letter of August 13, 2010 to the Panel, it is fairly difficult for us to accord any credibility to the proponent, since the latter denies that the Innu of Unamen Shipu use the project area, but at the same time it asserts that it can help Unamen demonstrate such use through “a homemade consultation,” impeded by insufficient budgets and timeframe.

“ Distribution of this document is currently underway as per the instructions received from the Panel Secretariat,” letter from Nalcor (Todd Burlingame) dated September 27, 2010. In conclusion, these comments are intended as a brief response to the proponent’s document; they are incomplete owing to the lack of resources and insufficient time allotted. In view of the deficiencies identified above in the Supplemental Report by Nalcor, the Conseil des Innus de Unamen Shipu has no choice but to state that this document does not comply with the Guidelines at all. It is our hope that the Panel will take this into account.

If it is possible to give us more time to round out our comments, we would like to be notified so we can do so.

Respectfully submitted on behalf of the Conseil des Innus de Unamen Shipu,

GAUCHER LEVESQUE TABET (François Levesque) Counsel for the Conseil des Innus de Unamen Shipu 570 boulevard Charest Est 2nd Floor Quebec City QC G1K 9G3

Telephone: 418-527-9009 Fax: 418-527-9199