Conseil de la Nation Innu Matimekush–Lac John

PO Box 1390, Schefferville, Quebec G0G 2T0 • Tel.: 418-585-2601 • Fax: 418-585-3856

Matimekush–Lac John, April 13, 2011

BY EMAIL

“Without prejudice”

Nalcor (to be completed)

Subject: Comments of the Conseil de la Nation Innu Matimekush–Lac John concerning the Lower Churchill Hydroelectric Generation Project

Dear Sir or Madam:

The following are the comments of the Conseil de la Nation Innu Matimekush–Lac John concerning the Lower Churchill Hydroelectric Generation Project as presented by the proponent, Nalcor.

BACKGROUND

The Matimekush–Lac John Innu (hereafter the “MLJ”) are descendants of the Aboriginal people who have continuously occupied, used and controlled the traditional land that is today called Labrador since time immemorial.

1. Historical evolution of the traditional Labrador land of the Matimekush–Lac John Innu

The MLJ have been occupying their traditional land long before contact with the French and other European nations in 1608, and possibly 1670 in Rupert’s Land, as will be further discussed below.

a. Rupert’s Land

• In 1670, King Charles II of England granted the land designated as “Rupert’s Land” to the Hudson Bay Company. This vast land corresponded to the Hudson Bay hydrographic basin. In particular, under the terms of the royal charter, the Hudson Bay Company was given monopoly over the fur trade in that land. Over the period it controlled Rupert’s Land, the Hudson Bay Company made no attempt to colonize the land and simply established a few trading posts on the shores of James Bay and Hudson Bay. It was only at the end of the 18th century that it established posts in the interior of this vast land. 2.

• Now known as the Constitution Act, 1867, the British North America Act was sanctioned on July 1, 1867.1 Under this law, the British Crown transferred to the Government of Canada all its obligations towards the First Nations. Under subsection 91(24), jurisdiction over the “Indians and Indian reserves” was given to the federal Parliament.

• On July 15, 1870, Rupert’s Land was admitted to the Canadian federation according to the terms and conditions approved and stated in the Order in Council Admitting Rupert’s Land and the North-Western Territory.2 It did not, however, specify the borders of the transferred land. This decree constituted the first constitutional protection of Aboriginal rights. As for Rupert’s Land, the decree set the following condition:

Any claims of Indians to compensation for lands required for purposes of settlement shall be disposed of by the Canadian Government in communication with the Imperial Government; and the Company shall be relieved of all responsibility in respect of them.3

• By virtue of Quebec and federal laws of 1898, the northern borders of the province of Quebec were defined4 as extending to the Eastmain River.

• In 1912, Canada and Quebec further extended Quebec’s land over part of Rupert’s Land under the terms and conditions set out in the Quebec Boundaries Extension Act of 1912.5 From then on, the province of Quebec reached the shores of Hudson Bay and Hudson Strait, including the Ungava Peninsula.

• This Act sets out specific provisions regarding relations with First Nations living on the land annexed to the province of Quebec. Section 2 of the Act included the following stipulations:

c) That the province of Quebec will recognize the rights of the Indian inhabitants in the land above described to the same extent, and will obtain surrenders of such rights in the same manner, as the Government of Canada has heretofore recognized such rights and has obtained surrender thereof, and the said province shall bear and satisfy all charges and expenditure in connection with or arising out of such surrenders;

d) That no such surrender shall be made or obtained except with the approval of the Governor in Council;

e) That the trusteeship of the Indians in the said land, and the management of any lands now or hereafter reserved for their use, shall remain in the Government of Canada subject to the control of Parliament.

1 30-31 Victoria, c. 3 (U.K.) 2 Rupert’s Land and North-Western Territory Order R.S.C. 1985, appx. II 3 Ibid. 4 An Act respecting the delimitation of the north-western, northern and north-eastern boundaries of the Province of Quebec, Que. 61, Vict., c. 6 (1998) et S.C. 1898, c. 3 5 S.C. 1912 c. 45 3.

b. Origins of Labrador

• In 1809, the British Crown adopted the Newfoundland Act of 1809,6 according to which the “Labrador coast,” Saint-Jean River to the Hudson Strait as well as Anticosti Island and islands adjacent to Labrador were cut back from Quebec and annexed to Newfoundland.

• In 1825, following protests by Quebec fishermen, the British Crown decided to adopt the British North America Act of 1825,7 returning to Quebec the land at the 52nd parallel, including Anticosti Island and other islands adjacent to this part of the coast.

• Neither acts of 1809 or 1825 specified the border between Quebec and Newfoundland.

• In 1902, conflict erupted between the province of Quebec and Newfoundland concerning the location and delimitation of the border between Quebec and Newfoundland. The Province of Quebec contested the issuance by Newfoundland of a forest harvesting permit in the Hamilton River area. The disputes regarding the location and delimitation of the border between Quebec and Newfoundland resulted in a ruling by the Privy Council in 1927, which favoured Newfoundland’s position in that its Labrador land would cut deeply into Quebec and set the border in the location it is today.

• In 1949, pursuant to the Newfoundland Act,8 Newfoundland joined the Canadian federation, stipulating the confirmation of the Quebec–Newfoundland border as a condition of the union.

• When Newfoundland joined Canada, Innu ended up under the jurisdiction of the Province of Newfoundland and Labrador, therefore legally separating them from Quebec bands and excluding them from the Indian Act9 because Canada and Newfoundland had neglected to extend application of the legislation to the new province. Innu were therefore thrust into a special federally financed “regime” administered by the Province.

• Never were Innu consulted on the creation of Labrador or have they ever consented to it.

2. Land claims

Supreme Court of Canada decision in Calder

• In Calder,10 the Nishgas initiated legal proceedings against the Attorney General of British Columbia, declaring that their Aboriginal title over traditional land had never been legally extinguished. Despite their differences of opinion on the survival of the Nishga Aboriginal title, the six judges agreed that First Nations held rights over the

6 49 Geo. III, c. 27. 7 6 Geo. IV, c. 59. 8 9 1985, R.S.C., c. 1-5. 10 Calder v. British Columbia [1973] S.C.R. 313 4.

land, provided that they occupied their traditional lands before the arrival of the Europeans and on condition that their rights had not been expressly extinguished by the Crown. The Calder ruling therefore confirmed the existence of Aboriginal rights and Aboriginal title held by First Nations over the lands they occupy since time immemorial. The underpinnings of the Calder decision were then confirmed by the Supreme Court of Canada in Delgamuuhv.11

Policy on land claims

• As a result of the Calder case, the federal government adopted a comprehensive land claims policy in 1973.

• The policy stated that a comprehensive land claim could be made by a First Nation holding Aboriginal title that had never been legally extinguished. The purpose of the policy was to enable the negotiation of treaty rights in exchange for relinquishing all other Aboriginal rights and interests.

• The policy was amended over the years but still essentially provides legal certainty as to the exchange of an Aboriginal people’s traditional rights against rights established in a final agreement.

Innu claims

• In 1975, the Innu and Atikamekw Nations created the Conseil des Atikamekw et des Montagnais (the CAM). The CAM’s main mandate was to represent the Innu and Atikamekw Nations in comprehensive land claim negotiations.

• In 1979, the CAM submitted a comprehensive land claim entitled “Nishastanan Nitassinan” on behalf of the nine Quebec Innu communities and three Atikamekw communities under the governments concerned. This claim included all Nitassinan Innu, both in Quebec and Labrador. The land in question covered 700 000 square kilometres.

• The Government of Canada agreed to the claim the same year and Quebec did the same in 1980. The Government of Newfoundland and Labrador never responded.

• CAM-member First Nation band councils gradually developed negotiation teams. In particular, First Nations at the centre, i.e., the Matimekush–Lac John, Pessamit, Essipit and Mashteuiast, formed the Mamuitun Tribal Council.

• In 1988, discussions led to the signing of a framework agreement between the CAM and the federal and Quebec governments that determined a work plan as well as timeline for pursuing negotiations and arriving at an agreement. The Government of Newfoundland and Labrador was not party to this framework agreement.

• In 1994, the Government of Quebec presented a comprehensive offer to settle CAM land claims and, the same year, that offer was rejected by the Atikamekw and Innu Nations.

11 [1997]4 S.C.R. 5.

• Given the divergence of CAM-member community objectives, the association was dissolved in 1994.

• On the other hand, the Mamuitun Tribal Council, which represented the Mashteuiatsh, Essipit, Pessamit and Uashat mak Mani-utenam communities, continued negotiating. However, the Uashat mak Mani-utenam community withdrew from negotiations in 1998.

• In 2004, an agreement in principle was signed between the Mamuitun Tribal Council and the governments of Canada and Quebec. It was expressly mentioned, however, that the land to which the agreement applied did not include Labrador.

• In 2005, the Uashat mak Mani-utenam and Matimekush–Lac John communities agreed to jointly participate in comprehensive land negotiations. They mandated the Ashuanipi Corporation to negotiate, on behalf of their communities, Aboriginal rights over their traditional land, including the part covered by the James Bay and Northern Quebec Agreement and that in Labrador.

• As part of land claim negotiations, meetings were held between the Ashuanipi Corporation and the Innu Nation to settle land overlap between the two.

• However, land claim negotiations for the Uashat mak Mani-utenam and Matimekush– Lac John communities were suspended in 2008.

• At the same time, the Uashat mak Mani-utenam Innu initiated legal proceedings in Federal Court, the Vollant case, which specifically concerned the rights and interests of that group on Labrador land. This case is currently before Newfoundland’s Superior Court.

• In 2008–2009, the Government of Newfoundland threatened to destroy cottages owned by Innu on Labrador land if owners did not hold permits for the cottages.

• Over several years, land conflicts have also arisen between Newfoundland authorities and Innu community members who hunt caribou in their traditional land in Labrador.

• Generally speaking, it appears that the Government of Newfoundland refuses to recognize the rights of a number of Innu communities, including MLJ, on Labrador land and also refuses to begin negotiations with these communities.

Innu Nation claims

• The Innu Nation is the political organization that represents the Sheshatshiu and Natuashish communities in comprehensive land claims. The members of these communities were known as Montagnais and Naskapi.

• The Innu Nation presented a comprehensive land claim that was conditionally accepted by the federal government in 1978, and in 1990, the Innu Nation submitted a study on the occupation and use of their traditional land. 6.

• In 1996, a framework agreement was signed between the federal and Newfoundland and Labrador governments and the Innu Nation, stipulating the rules for land negotiations. Since then, land negotiations have been progressing towards an agreement in principle.

• In 1997, Canada and Newfoundland and Labrador, the Innu Nation and the Labrador Inuit Association signed a memorandum of understanding concerning the environmental effects of the Voisey’s Bay mining and milling facility project.

• On July 22, 2002, the Innu Nation and Newfoundland and Labrador signed a memorandum of agreement on the Voysey’s Bay project. In summary, the agreement provided for the following:

i. Newfoundland and Labrador will pay an annual amount of 5% of the net revenues from the project.

ii. Land overlaps between the Innu Nation and the Labrador Inuit Association concerned by the project will be the subject of an agreement.

iii. Newfoundland and Labrador will consult the Innu Nation when a request for approval, authorization, licence or permit required by provincial law is submitted concerning the Voisey’s Bay project.

• On July 29, 2002, the Voisey Bay Nickel Company, Inco and the Innu Nation signed an agreement on the effects and advantages of the Voisey Bay, Labrador, nickel mine project. The agreement set out business, employment and training opportunities for members of the Innu Nation communities.

• On September 26, 2008, the Tshash Petapen agreement between the Innu Nation and the Government of Newfoundland and Labrador was signed, setting out the effects and advantages of the Churchill Falls Hydroelectric Generation Project on the upper section of Churchill River and the future hydroelectric generation project on the lower section of the river. The main points of the agreement are as follows:

i. Parties to the Tshash Petapen agreement are Newfoundland and Labrador, the Energy Corporation of Newfoundland and Labrador, and the Innu Nation.

ii. With regard to the “Upper Churchill” project, Newfoundland and Labrador will pay the Innu Nation an annual amount of $2 million plus an annual amount of 3% of revenues generated by the project provided that the Innu Nation waives past, present and future claims relating to constraints on the practice of their Aboriginal rights as a result of the Upper Churchill project.

iii. With regard to the “Lower Churchill” project, Energy Corporation of Newfoundland agrees to pay an annual amount of $5 million until commercial energy production begins; thereafter, Energy Corporation of Newfoundland and Labrador will pay the Innu Nation an annual amount of 3% of the net revenues from the project; in addition, it is provided that the objective of Innu company participation will be $400 million. 7.

• In February 2010, the final Tshash Petapen agreement between the Innu Nation and Newfoundland and Labrador was signed. However, ratification by the members of the Innu Nation communities and additional negotiations are required before the agreement may come into force.

Inuit

• In 1977, the Labrador Inuit Association was created. Its mandate included, in particular, the representation of Inuit in territorial land claims.

• In 1978, Canada agreed to territorial land claims made by the Labrador Inuit Association, and in 1990, a framework agreement between Canada and the Labrador Inuit Association was signed on the land negotiation process.

• On June 25, 2001, an agreement in principle between Canada, Newfoundland and Labrador and the Labrador Inuit Association was signed.

• In 2002, the Labrador Inuit Association and Newfoundland and Labrador signed an agreement on interim measures concerning the Voisey’s Bay project. In particular, this agreement provided for the payment by Newfoundland and Labrador of an annual 5% of net revenues from the Voisey’s Bay project.

• In 2002, an agreement on the effects and advantages of the project was signed by the Labrador Inuit Association, the Voisey’s Bay Nickel Company and Inco. The agreement set out business, employment and training opportunities. With regard to jobs reserved for Inuit, the agreement stated that opportunities would be maximized.

• In July 2002, Canada and Newfoundland and Labrador, the Innu Nation and the Labrador Inuit Association signed an agreement on environmental protection measures relating to the Voisey’s Bay mining and milling facility project.

• In 2005, an agreement on land overlaps was initialled by the Innu Nation and the Labrador Inuit Association. The basis for this agreement had been established in 1997.

• In 2005, a definitive agreement on land claims by Labrador Inuit was signed by the chief negotiators of the Labrador Inuit Association, the province of Newfoundland and Labrador, and the Government of Canada. The agreement set out the following specific points:

i. In exchange for the rights and advantages stated in the final agreement, Inuit waive and relinquish in favour of Canada and the Province all their Aboriginal rights over the lands located outside those selected by Labrador Inuit, as well as their Aboriginal rights over subsurface resources of “Labrador Inuit Lands.”

ii. Two categories of lands were created: the region concerned by the Labrador Inuit Settlement Area and the region called “Labrador Inuit Lands.” 8.

iii. The settlement area covers 72 520 square kilometres of land and 48 690 square kilometres of water; within the settlement region, Inuit own 15 800 square kilometres of lands designated as Labrador Inuit Lands.

iv. On Labrador Inuit Lands, Inuit will have, among others rights, exclusive ownership title to 3950 square kilometres of quarry production and 25% participatory rights in subsurface resource development.

v. Proponents and Inuit will negotiate agreements on the effects and advantages of the project before it may go forward on Labrador Inuit Lands and before any major project is carried out in the area of settlement land located outside Labrador Inuit Lands.

vi. Inuit are entitled to 25% of provincial revenue from projects to develop subsurface resources of Labrador Inuit Lands. Inuit will receive 50% of the first $2 million from 5% of all additional provincial revenues from the development of subsurface resources in the area covered by the Settlement located outside Labrador Inuit Lands.

vii. Inuit will receive 5% of provincial revenues from subsurface resource development in the Voisey’s Bay area

Labrador Métis

Although this group obtained a judgement requiring Newfoundland and Labrador to consult them on the construction of the Trans-Labrador Highway, the Province refuses to this day to negotiate their land claims in Labrador.

3. Land and resource development in Labrador

• Given the tremendous hydroelectric potential of Labrador waterways, Newfoundland and Labrador has endeavoured to develop this resource.

• In 1958, a company called Hamilton Falls Power Corporation was formed. The objectives of the company were to produce or otherwise obtain electric power and to transport and sell it, as well as to harness or otherwise use waterways for the purpose of generating hydroelectric and hydraulic power and for any other use.

• In the same year, the new company acquired from the province of Newfoundland and Labrador, which owned all the rights to Labrador waters at the time, the right to develop the hydraulic resources of Hamilton River, in Labrador.

• In 1960, the company exercised the right they were granted and agreed to develop the hydraulic resources of Hamilton River. The name of the river was changed to Churchill River, and in 1965, the name of the company became Churchill Falls (Labrador) Corporation Limited. 9.

• The lease held by Churchill Falls (Labrador) Corporation Limited granted all exclusive usage rights to certain waters from Churchill River and its hydrographic basin for the purpose of generating hydroelectric power, as well as the right to transport that power within the province and export it outside the province. In 1968, other leases were granted to Churchill Falls (Labrador) Corporation Limited by Newfoundland and Labrador relating to land and passage rights required for developing Churchill Falls, particularly leases for the site where the main generation plant was to be built as well as for roads, transmission lines and an airport.

• Churchill Falls (Labrador) Corporation Limited constructed the hydro-electric plant in Newfoundland and Labrador on the leasehold. The generation plant has a capacity of approximately 5428 megawatts and produces an average 34 terawatthour of energy per year. The plant was commissioned in 1971 and all development work was completed by 1976.

• The Churchill Falls hydroelectric project diverted thousands of navigable waterways and flooded over 1300 square kilometres of land in Labrador. The project flooded burial grounds, trapping land and family territories. It also destroyed caribou habitat and other flora and fauna habitat on which Innu hunters have depended since time immemorial.

• Newfoundland and Labrador Hydro (NLH) now wishes to build a second hydroelectric complex on the Churchill River in Labrador, which the Province hopes to have running by 2014.

• In 2008, Newfoundland and Labrador created a new public corporation by the name “Nalcor Energy.” This company is the proponent of the project to develop the hydroelectric power of the Lower Churchill River.

10.

II LOWER CHURCHILL HYDROELECTRIC GENERATION PROJECT

1. Effect of the project on the traditional land of the MLJ

It is clear the Lower Churchill project, as described in the impact study provided by Nalcor, will have imminent and serious adverse effects on MLJ-member Aboriginal rights and Aboriginal title over their lands.

Let us remind you of the following:

• MLJ occupies the land the proponent calls the Upper Churchill basin, and that a significant portion of that land was flooded by the Upper Churchill project.

• MJL has Aboriginal rights and Aboriginal title to that land, and those rights were never assigned, abandoned or waived in any way; in addition, MLJ has not been party to any treaty, and it suspended land negotiations in 2008.

• Over twelve (12) MLJ-member families have trapping grounds in the province of Newfoundland and Labrador and have continuously occupied their family land (see Appendix 1).

• The Lower Churchill project, as presented by proponent Nalcor, appears to infringe, in principle, on MLJ’s Aboriginal rights and Aboriginal title.

• MLJ never gave its consent to the project being carried out on part of its traditional land.

• The province of Newfoundland and Labrador refuses to recognize MLJ rights and to begin negotiations to recognize those rights.

• Impact studies produced by Nalcor do not refer to MLJ rights or claims.

2. Environmental impact studies produced by Nalcor

Upon reviewing the environmental impact studies, we note the following:

• Although the studies total over 1000 pages, there are only six references to “Quebec Innu” in all volumes of the studies. On the other hand, references to the Innu Nation are many and complete. It appears that Nalcor has manifestly and voluntarily favoured the position defended by the Government of Newfoundland to the effect that MLJ rights are non-existent or negligible.

• No specific reference is made to MLJ in Nalcor studies, while the MLJ community is only a few metres away from the border between Quebec and Newfoundland and Labrador. Nalcor does not make a distinction between MLJ and other “Quebec Innu.”

• There is an obvious imbalance in Nalcor impact studies with regard to the consideration given to the Innu Nation as compared to other Aboriginal groups, all of who benefit from the same Aboriginal rights in Newfoundland and Labrador. This attitude is discriminatory, unjustified and in violation of Canadian law. 11.

• Generally speaking, the studies submitted by Nalcor are incomplete because they do not take into account the project’s impacts on the rights of the MLJ and its members.

3. Adequate consultation

Although the impact studies submitted by Nalcor mention that “Quebec Innu” would be consulted and, in the past year, Nalcor initiated a consultation program with Aboriginal groups impacted by the Lower Churchill project, the consultation is inadequate and does not respect the rules established by the Supreme Court of Canada in similar matters, specifically:

• The consultation did not begin at the start of the process, as is required.

• Impact studies clearly show that the MLJ did not participate in its development and that Nalcor did not find it useful to have MLJ participate in its impact studies; in fact, it appears that only the Innu Nation was asked to participate in the impact study as if the communities residing in Labrador will be the only ones affected by the project’s adverse effects.

• The efforts expended by Nalcor to ensure that Aboriginal groups are consulted are not balanced when comparing consideration given to the Innu Nation to that given to other Aboriginal groups, who were consulted only after the impact studies were completed.

• The refusal of the Province of Newfoundland and Labrador to recognize and consider MLJ Aboriginal rights appears incompatible with Nalcor’s claim of having consulted MLJ and that it was meaningful consultation.

• Nalcor, as a public corporation, must act honourably in the spirit of conciliation and conduct meaningful, good faith consultations with MLJ, which it has failed to do so far.

4. Conclusions

In view of the above, we come to the following conclusions:

1) The Lower Churchill project will have significant and serious adverse effects on traditional MLJ land and on most of the twelve (12) member-family land located in the Lower Churchill project area. This will result in the unjustified violation of MLJ Aboriginal rights and Aboriginal title, which are recognized and protected under Section 35 of the Constitutional Act, 1982.

2) Nalcor did not obtain the consent of the MLJ and did not deem it necessary to have MLJ benefit from the socio-economic effects of the project. As a result, Nalcor must ask for MLJ’s consent for the project to go forward.

3) The impact studies submitted by Nalcor are incomplete because they do not take into account the impacts of the project on the rights of the MLJ and its members. In addition, the impact studies unjustly and outrageously favour the Innu Nation. Nalcor therefore has an obligation to complete its impact studies by directly involving the MLJ in a meaningful way. 12.

4) Nalcor/Newfoundland and Labrador have the obligation to act honourably and reconcile the interests of project completion with respect to MLJ rights. Adequate and meaningful consultation should have taken place, which was not the case. Nalcor/Newfoundland and Labrador must begin consultations with the MLJ and ensure that their legal obligations towards the MLJ are met.

5) Given the advantages granted to the Innu Nation as part of the “Tshash Petapen” agreement with regard to the Lower Churchill project, the consultation should also include that agreement. In addition, the Government of Newfoundland and Labrador must commit to participating in the settlement of overlaps proposed by the federal government to the Innu Nation and other Aboriginal groups.

We hope the above meets with your satisfaction.

Sincerely yours,

Chief Réal Mckenzie Conseil de la Nation Innu Matimekush–Lac John

13.

Labrador Schefferville Lots

210- Mathieu Vachon

215- Edmond Dominique

212- Pierre Gabriel

209- Joseph Gabriel

225- Joseph Sr Mckenzie

217- Joseph André

226- Raphael Grégoire

222- Léon Mckenzie

220- François Sébastien Mckenzie

213- Bastien André

221- Louis Mckenzie (Sébastien)

234- Pinette Sylvestre Côme (Joseph)