December 3, 2020 the Canada Energy Regulator Suite 210, 517
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Nancy Kleer [email protected] T: 416.981.9336 F: 416.981.9350 73353 December 3, 2020 The Canada Energy Regulator Suite 210, 517 Tenth Avenue SW Calgary, Alberta T2R 0A8 Mr. Stéphane Talbot Director – Planning Hydro-Québec TransÉnergie 2, Complexe Desjardins East Tower, 9th floor C.P. 10000, succ. Desjardins Montréal, QC H5B 1H7 [email protected] The Honourable Seamus O’Regan Minister of Natural Resources Natural Resources Canada 580 Booth Street, 21st Floor Ottawa, ON K1A 0E4 [email protected] Dear Sirs/Mesdames: Re: Comments of Innu Nation Inc. on Hydro-Québec TransÉnergie Application for the Appalaches-Maine Interconnection Power Line Project, Application No. C01914 I write on behalf of the Innu Nation of Labrador (“Innu Nation”) to comment on Hydro- Québec’s application for a permit (the “Permit”) to build the Appalaches-Maine Interconnection Power Line Project (the “Project”). The Project is a proposed direct current transmission line approximately 103 kilometers long between the Appalaches substation in the municipality of Saint-Adrien-d’Irlande, and a crossing point on the Canada-US border in the municipality of Frontenac. The Project will permit Hydro-Québec to further profit from the Churchill Falls Generating Station (“CFGS”) by selling electricity generated at that facility into U.S. markets. 250 UNIVERSITY AVE., 8TH FLOOR, TORONTO, ON, M5H 3 E 5 T E L : 4 1 6 - 9 8 1 - 9 3 3 0 F A X : 4 1 6 - 981- 9 3 5 0 WWW.OKTLAW.COM Page 2 CFGS was built, without their consent, on the Innu of Labrador’s traditional territory. This territory is coextensive with the Innu of Labrador’s land claim area that was accepted for negotiation by Canada, and the Innu of Labrador have never given up their aboriginal rights and title to it. CFGS has caused untold and ongoing damage to the Innu of Labrador’s territory and way of life. Hydro-Québec – which played a critical role in the design and construction of the CFGS and now takes most of the electricity generated by that facility – has made no effort to compensate the Innu for those damages. It has not even taken the symbolic step of acknowledging CFGS’ impacts on the Innu. Instead, while the Innu continue to live every day with the legacy of environmental degradation and damage caused by CFGS, Hydro-Québec continues to reap extraordinary profits from that project (estimated at up to $80 billion to date). Hydro-Québec’s actions have breached several of the Innu people’s rights under the United Nations Declaration on the Rights of Indigenous Peoples. These include their right to their traditional territory and the resources derived from it. They also include their right to not have development proceed on their traditional territory without first providing their free, prior, and informed consent to that development. And they include their right to compensation for these and other past and ongoing breaches of their rights. In the context of Hydro-Québec’s application for the Permit, the Innu Nation submits that it would not be in the public interest to allow the Project to proceed while these breaches of UNDRIP remain unaddressed. Similarly, it would not be in the public interest to permit Hydro- Québec to develop new mechanisms to profit from conduct that clearly breaches several the Innu’s rights under UNDRIP. Accordingly, the Innu Nation respectfully request that: a) the Commission exercise its broad public interest jurisdiction in s. 32(1) of the Canadian Energy Regulator Act to impose a condition in the Permit that states: “Prior to the start of construction, Hydro-Québec must submit to the Commission documentation of permission to use Innu Territory for the CFGS that includes the signature of a duly authorized representative of the Innu Nation;” or b) in the alternative, if the Commission is unprepared to do so, that the Governor in Council designate the Project under s. 258(1)(a) of the Canadian Energy Regulator Act as a project requiring a certificate; and c) the Commission hold a public hearing to determine whether the Project is and will be required by the present and future public convenience and necessity in accordance with the factors set out in s. 262(2) of the Canadian Energy Regulator Act. The Commission and the Governor in Council have the jurisdiction to grant these remedies. The Innu respectfully submit that these are appropriate circumstances in which to grant them. The Innu of Labrador, their territory, and Innu Nation The Innu of Labrador have a population of approximately 3,200 who now reside primarily in two separate communities: the reserves set aside for their people at Natuashish and 250 UNIVERSITY AVE., 8TH FLOOR, TORONTO, ON, M5H 3 E 5 T E L : 4 1 6 - 9 8 1 - 9 3 3 0 F A X : 4 1 6 - 981- 9 3 5 0 WWW.OKTLAW.COM Page 3 Sheshatshiu. Both are First Nations having the capacity of Bands under the Indian Act. The Innu are an Aboriginal people within the meaning of s. 35 of the Constitution Act, 1982, and an Indigenous people within the meaning of the United Nations Declaration on the Rights of Indigenous Peoples. The Innu have, since time immemorial, lived in their territory, which they call “Nitassinan” (which means “Our Land” in Innu-aimun). The Innu are hunters who have travelled over these lands in family groups, using timeworn travelling routes to hunt, fish, gather and trade. Travelling was and is central to the Innu identity, since through travel they maintained their social and ceremonial connections with other Innu, neighbouring peoples, and the land. Innu gatherings at central locations for trade and cultural events, including near Churchill Falls, have been integral to their way of life. Nitassinan includes much of present-day Labrador and parts of eastern Quebec. Nitassinan is where the Innu hunt and trap wildlife, fish, and collect plants and other natural resources, for food, clothing, shelter, medicine, tools, trade, and ceremonial purposes. The Innu use its rivers, streams and water bodies for transportation, food, and cultural purposes. They use specific sites in Nitassinan to exercise spiritual and cultural practices. And they transmit traditional knowledge about the history, uses and values of Nitassinan, including the animals, flora, lands, resources, and the Innu’s way of life in it and as part of it, to subsequent generations of Innu. The Innu were able to resist the forces of colonization and maintain their way of life until resource developers started looking in earnest to exploit their lands starting in the 1950s, at which point they were forced into settled communities by the Government of Newfoundland and Labrador. The Innu now reside primarily in two communities: Sheshatshiu and Natuashish. In the 1980s Canada accepted their land claim for negotiation under Canada’s comprehensive land claims policy, which includes the area damaged by the CFGS. Formal negotiations began in the 1990s. Newfoundland and Labrador and Canada have recognized and acknowledged that the Innu of Labrador have a legitimate and unresolved Aboriginal title and Aboriginal rights claim to a significant area of Labrador (the area the Innu call Nitassinan). Those parties are participating in negotiations to resolve this outstanding land claim. On November 18, 2011, they signed an Agreement-in-Principle with Canada and the Province with respect to the Innu claim to lands in Labrador, confirming the intention of the parties to enter into a final agreement to settle the land claim. Negotiations are ongoing. Innu Nation Inc. is a corporation incorporated under the laws of Newfoundland and Labrador to represent the rights and interests of the Innu. Innu Nation Inc. represents the Innu, including in land claim and self-government negotiations with Canada and Newfoundland and Labrador. Its mandate is to speak as one voice to protect the interests of the Innu people in relation to their land. 250 UNIVERSITY AVE., 8TH FLOOR, TORONTO, ON, M5H 3 E 5 T E L : 4 1 6 - 9 8 1 - 9 3 3 0 F A X : 4 1 6 - 981- 9 3 5 0 WWW.OKTLAW.COM Page 4 Churchill Falls Generating Station CFGS is a massive hydro-electric project located in western Labrador. CFGS is owned and operated by Churchill Fall (Labrador) Corporation (“CF(L)Co”). Nalcor Energy – Newfoundland and Labrador’s provincially owned electricity utility – and Hydro-Quebec are CF(L)Co’s sole shareholders. Nalcor is the majority shareholder. The main works that comprise the CFGS include a series of dikes and control structures along a 64 kilometer stretch of waterways in the watershed of Mishtashipu, a river that drains an area of over 90,000 kilometers, which comprises a large portion of Nitassinan. The Innu call Mishtashipu the “Great River.” It is also known as the “Churchill River.” The dikes and control structures on Mishtashipu result in the diversion or drainage of an area of approximately 72,000 square kilometers. The main works of CFGS also include a reservoir called the “Smallwood Reservoir”, which covers an area of over 6,500 square kilometers to contain the water diverted by the dikes, and a power generation station that uses water from the Smallwood reservoir and another reservoir (the Ossokamanuan Reservoir) to generate electricity. The massive scale of the Smallwood Reservoir is shown on this map: Before the reservoir was created by flooding, this area was a gathering place for the Innu from across the Québec-Labrador Peninsula. It was known to the Innu as the Meshikamau area, named for Lake Meshikamau. The area was rich in fish and wildlife and was on the migration 250 UNIVERSITY AVE., 8TH FLOOR, TORONTO, ON, M5H 3 E 5 T E L : 4 1 6 - 9 8 1 - 9 3 3 0 F A X : 4 1 6 - 981- 9 3 5 0 WWW.OKTLAW.COM Page 5 path of two herds of caribou, which are integral to the Innu diet and cultural and spiritual identity.