Chapter 17

The position of the Innu who live in Quebec

Innu in Matimekush expressed a sense of déjà vu when it came to consideration of the signing of the New Dawn Agreement in Labrador:

The New Dawn Agreement? It’s the second James Bay Agreement. It’s the same thing. We are going to have a new map again because Indians from Sept-Iles and here have their own territories. It’s the same as the [North Eastern] Quebec Agreement. The [Innu in Labrador] have a mining agreement for the Voisey’s Bay project and with Hydro Labrador for the Churchill River and now with the government. I know for governments to negotiate with two communities it’s easy. It’s easy to persuade them. When you have nine communities, it is harder. People in Sheshatshiu, these are our own sisters and brothers. Are they going to be like the Naskapi are now – not wanting to be a nation with us? It’s the same with the nation of Labrador, they don’t want to know. Sheshatshiu has no territory near here. There are no cemeteries round here belonging to Sheshatshiu – only from here and from Sept-Iles.1

However, the New Dawn Agreement in Principle (AIP) does have an added dimension which closely affects the Innu in Quebec. At Clause 2.112 it provides that: ‘Nothing in the Agreement shall be construed to affect, recognize or provide any rights under section 35 of the Constitution Act, 1982, for any Aboriginal People of Canada other than Innu.’ [as defined under the AIP and restricted to Innu beneficiaries from Labrador]

In order to establish these rights, the Innu resident in Quebec whose lands are alienated by the New Dawn Agreement must take their case to a court of ‘last resort’ – which could mean to the Supreme Court of Canada, an extremely costly and lengthy undertaking. If they re-entered negotiations for their own land claim, their rights in Labrador could be acknowledged under that process but, under the terms of the AIP, would still have to be confirmed by the court.

While the Innu who live in Quebec say that the Innu in Labrador have abandoned their core beliefs in agreeing to sell the Labrador lands to the governments, the Innu who live in Labrador claim somewhat defensively that their relatives in Quebec were asked to join the negotiating table and share in any benefits from the New Dawn Agreement but refused. Nevertheless, under the New Dawn Agreement the Innu Nation are preparing to sign away lands which are shared and lands such as the land for mining on the outskirts of Matemekush in which the people of Sheshatshiu and Natuashish have little interest.

On 19 March 2010, Jean-François Bertrand, lawyer for the Strategic Alliance, wrote to Prime Minister Harper, Premier Danny Williams, Minister of Indian Affairs Chuck Strahl and the Innu negotiators as follows:

We formally demand that the Government of Canada immediately cease any discussions and meetings regarding the possible execution of this treaty, since that would entail a flagrant breach of your fiduciary obligations to the Innu of Quebec.

As in the case of the government of Newfoundland and Labrador, you are well aware that our clients have aboriginal title, aboriginal rights and treaty rights over that part of Nitassinan which is located in Labrador. However, negotiating with Innu Nation and the Government of Newfoundland and Labrador without prior consultation of the concerned Innu communities of Quebec, the Government of Canada has already breached its fiduciary obligations. The execution of a treaty would only compound this breach.

Consequently, considering the foregoing, we demand that you cease immediately any discussions, meetings and communications regarding the execution of such a treaty and that you start the process anew and so as to enable consultation of the Innu communities in Quebec, their participation in such treaty negotiations and the recognition of their rights in Nitassinan.

However, the present author would suggest respectfully that what the lawyers should have been demanding in 2010 was that free, prior, informed consent should be given by their Innu clients in Quebec.

In 2011 informal discussions were held between the Newfoundland Labrador government and the Strategic Alliance regarding the rights claimed by the Strategic Alliance to lands in Labrador.2 In November 2011 a meeting was held at the Band Council offices in Matimekush of representatives of all interested communities in Quebec to decide on a joint approach to the federal and Newfoundland Labrador governments.3 As we have seen, there is a provision in the New Dawn AIP that the agreement will be amended to accommodate any successful court challenge from other native people, which includes a challenge from the Strategic Alliance.

The Innu village of Ekuanitshit, to the east of Sept-Iles, not part of the Strategic Alliance but a close associate, began a court challenge to the works at Muskrat Falls on 26 April 2012.4 The community asked the court to set aside a decision of the federal government to grant permits to Nalcor for the Muskrat Falls project because the government had rejected the joint review panel’s recommendations with regard to the rights of the Innu who live in Quebec. The panel had recommended a financial review and assessments of alternative sources of energy. The lawyer for the plaintiffs said that they were particularly concerned about the effect on the George River herd of caribou, which was reported by Survival International to have been reduced in size from 800,000–900,000 to fewer than 74,000.5 Peter Penashue, then a minister in the Harper government, retorted that all outstanding legal issues had been addressed.6 So far as is known, no involvement was offered to or sought by the Strategic Alliance, such is the governments’ successful division of Innu in Quebec into eastern, central and western negotiating tables. On 24 April 2013, the case was dismissed. On 24 May, the Ekuanitshit Innu filed an appeal. Leave to appeal was refused in 2015.7

When the Voisey’s Bay nickel mines were proposed in the early 2000s, all Innu stood together to try to stop the project because it would ruin the land. Innu from Matimekush Lac John united with the Innu of Sheshatshiu to circle the runway of the Goose Bay airfield, and they had previously been together to Rotterdam to protest against proposed NATO overflying.8 Yet in 2008 when Chief Réal McKenzie of Matimekush Lac John asked Peter Penashue, then Chief in Sheshatshiu, for help to fight the opening of the new mines, no help was forthcoming.9 When interviewed in 2009, at a time when the ratification of the New Dawn Final Agreement seemed imminent, one elder in Matimekush described relations between the Innu in Quebec and those in Labrador as follows:

It seems to me that the governments have divided the Innu people into their separate communities. How can the Innu reunite? It’s a very tough question. Off the top of my mind I can’t give you a straightforward answer. It’s really complex and difficult. I am pretty much concerned about the New Dawn Agreement about to be ratified by the Innu of Labrador because what it will do is cause an upset to our hunting rights and our hunting activities. Priority will be given to the Innu resident in Labrador and [as for] those in Quebec – there will be no concern for our position. I cannot see how people cannot see that we are the same people – Innu from Quebec and Labrador are one nation.10

The ‘negotiation’ process shown in these chapters demonstrates the lack of good faith and the failure of the federal and provincial governments to uphold the honour of the Crown in their dealings with small indigenous nations who trust their future to a negotiated land claims settlement. Settlement agreements are shown to be one-sided, with all the cards held by the Crown – a position which the governments continue to abuse in disregard of the honour of the Crown.

In the run-up to the signing of the New Dawn AIP, game wardens in Labrador took steps to remove Innu hunters from Quebec from their long-established hunting territory in Labrador. They threatened to burn down their cabins, although the threat was later withdrawn. The response of the Innu was to engage in a mass hunt in February 2010 in order to establish their rights.11

At about this time, the new iron mines were opening at Schefferville. The Innu resident in Labrador signed the necessary agreements, but again the Matimekush Lac John Innu did not and mounted roadblocks to the excavation sites.12 They were threatened by Chuck Strahl, then federal Minister of Indian Affairs, with funding cuts unless they removed the barricades – saying that unless they capitulated the government would withdraw its subsidy of C$6 million from the Quebec North Shore and Labrador Railway (the community’s only affordable connection to the outside world) and also the C$73 million promised to upgrade the railway (which was presumably mainly for the benefit of the mining company). He also said the government would renege on its promise of a round table to settle overlapping claims. Chief Réal McKenzie’s response was, ‘We will not give in to this inexcusable and shameless intimidation,’ and he indicated that the chiefs were prepared to take the matter of this federal intimidation to the G-20 and G-8 summits due to take place in Toronto in June 2010.13

This approach was successful. The Strategic Alliance was able to reach Impacts and Benefits Agreements with Labrador Iron Mines, Tata Steel and ArcelorMittal.14 These negotiations have also provided an opportunity for the Innu of Matimekush Lac John to pursue their claims in Labrador. The first payments from Labrador Iron Mines and Tata Mines were used to pay off the Matimekush Lac John Band Council deficit. Further payments could finance court cases to recover both James Bay and Labrador lands, allowing the Quebec Innu to engage their own lawyers independent of the influence of the governments who, up until now, were the source of loans for legal and other advice. As part of the IBA compensation, the mining companies agreed to replace the infrastructure destroyed with the departure of the Iron Ore Company in the 1980s, including the provision of a new sports arena.15

Galvanised by the verdict in Tsilhqot’in Nation v British Columbia, the newly formed Innu Nation representing the Innu of Quebec have joined with the Attikamekw and Anishnabeg in a coalition which is calling for the renegotiation of the James Bay Agreement so that their rights in the land are recognised.16 It remains to be seen whether they will take similar action to gain recognition of their rights to lands in Labrador.

Also in the wake of Tsilhqot’in, the Innu of the Strategic Alliance brought a court case against the Iron Ore Company, claiming $900 million for past exploitation of their traditional lands both in Quebec and in Labrador. The Iron Ore Company had recently concluded a similar deal with the Innu in Labrador, despite the fact that the compensation awarded them related to land which had always been recognised by the Innu as Strategic Alliance territory. Four years of negotiation to get compensation had proved fruitless. As the chief at the time in Matimekush Lac John put it: ‘Governments and the mining industry allow other Aboriginal groups with no legitimate claim to our territory to encroach on our lands at our expense. We can no longer tolerate such an attitude which aims to capture our resources and the benefits which derive from them.’17

The chiefs of Matimekush Lac John, Uashat mak Mani-Utenam and Ekuanitshit also travelled to Europe to the headquarters of Rio Tinto, which now owns the Iron Ore Company mines, to attend their AGM in an initiative they called ‘Pay the Rent’.18 Rio Tinto’s attempt to block the class action was rejected by the Supreme Court of Canada. The case was then sent back to the Quebec Superior Court for trial.19

One new possibility advocated by Russell Diabo, in his capacity as adviser to the Algonquin Nation, is an alliance between all those who have refused to enter into comprehensive land claims negotiations. He believes their position following Tsilhqot’in is stronger than that of nations who are already negotiating land claims with the governments but, he says, they must start negotiating between and among themselves. They should ‘establish a co-ordinating body with political and technical representation on it to ensure proper representation by Indigenous Nations Not Negotiating in the AFN-PN “high level” process on Comprehensive Land Claims Policy reform’.20

Already the indigenous peoples of the Ungava Peninsula are coming together to address the depletion in caribou numbers. Most Canadians involved in caribou conservation blame the indigenous hunters for the drop in the size of the George River and Wood herds but Nicolas Mainville, at the time a senior officer with Greenpeace, came out in support of the indigenous peoples, who have held meetings and press conferences to produce evidence that the depletion is not as serious as the government bodies claim. He adds that, in any case, the real cause is the forestry industry. He also points out that it is not just falling caribou numbers Canada should be concerned by – the entire fauna of the boreal forest is under threat.21

Although the federal and provincial governments deal with the Innu resident in Quebec through three separate negotiating tables with regard to land claims, chiefs from all the Innu villages in Quebec have been working together since 2013 to lobby the Quebec government to change its economic policy for the region so that caribou are no longer threatened by the forestry industry in the province. In September 2013, a round table was held in Nain, Labrador, with Inuit and Cree representatives, which produced a conservation plan based on both indigenous knowledge and scientific research. All Innu villages from both sides of the Quebec–Labrador border participated in the discussions. Sara Leo, president of the Nunatsiavut government, observed that: ‘The profound respect and unity demonstrated by all those round the table is impressive. This is where our power lies and we have hope for the future of the caribou of the Ungava Peninsula.’22 (author’s translation)

This – environmental conservation – is one issue which strikes at the heart of indigenous existence and has engendered a high degree of co-operation despite the dissent over land claims. The PEW Trust records that ‘the Peoples of the Ungava in 2013 created the Ungava Peninsula Caribou Aboriginal Round Table to improve caribou management across 580,000 square miles of Quebec, Labrador and Nunavik’.23 However, where Nunavik hunters have refrained from hunting for several years, Innu hunters from Quebec continue to assert their rights to hunt in southern Labrador, albeit on a very small scale – nothing on the scale of sports hunting by American tourists.24

Christopher Alcantara, once a student of Tom Flanagan, poses the question, ‘Why were the … Labrador Inuit able to complete comprehensive land claims agreements and why were the … Labrador Innu not able to complete them?’ He points to the success of the James Bay Agreement which, he says, rested on the opportunities for resource development; but he also notes that many comprehensive land claims negotiations fail because: ‘… government actors have tended to have inflexible mandates, have lacked political will, or have failed to provide sufficient incentives for professional negotiators to complete agreements quickly’.

He also points to the inability of indigenous governments to harness the necessary resources to complete negotiations because of government interference with compulsory relocation and underfunding of indigenous communities. Other factors are the cultural difference which often results in provincial and federal governments perceiving themselves as ‘representatives of the Crown meeting with minorities within Canada’ rather than as negotiators seeking to acquire title to land from the rightful owners.25 Certainly, all these factors are present in the background to the New Dawn Agreement negotiations.

Alcantara’s own conclusion is that successful land claims negotiation requires a similarity of preferences of the parties involved, which results in a lack of confrontation – something of a statement of the obvious. Relations of all 11 Innu groups on both sides of the Quebec–Labrador border have their foundations in protest against resource exploitation over which they were not consulted. Alcantara points out that the revenues received by the province for development in Labrador dwarf the amounts paid to the indigenous groups on whose land development took place.26 He suggests that the Labrador Inuit took a pragmatic, conciliatory approach to land claims whereas, for the Innu, recognition of their sovereignty was paramount.

Alcantara claims that the Innu resident in Quebec and those in Labrador became two separate groups, the division created by the provincial border.27 This is patently not true – the Innu continued to work together until 1990, and in their relations in the 20th century they were united in protest. Alcantara identifies the turning point as the election of Peter Penashue as president of the Innu Nation in 1990.28 Even under Penashue’s leadership, negotiations moved slowly, mired in internal problems and disputes with the governments over their illegal use of Innu lands. In 1999, Alcantara tells us, the federal government suspended negotiations due to what were perceived as unreasonable Innu demands which did not adhere to the governments’ imposed national standards – which is a clear indication that negotiations were not free and fair. They were reinstated when the provincial government wished to proceed with the Lower Churchill Falls project.

Alcantara identifies four factors necessary for a successful outcome for land claims negotiations:

• compatibility of government and aboriginal group goals

• minimal use of confrontational tactics by the aboriginal group

• strong aboriginal group cohesion as it relates to the treaty process

• positive government perceptions of aboriginal group capacity.

In other words, it seems that the indigenous group is judged to have ‘capacity’ when it has been sufficiently demoralised at the hands of the governments to capitulate. Yet, despite everything they have suffered at the hands of the governments, the Innu resident in Quebec have maintained their cohesion and resilience long enough to benefit from the Tsilhqot’in decision. In order to acquire the necessary ‘cohesion’, the governments had to divide off the only two Innu communities which would concede to demands which did nothing to uphold the honour of the Crown. Even then, ‘cohesion’ was a result of the death of a powerful leader, Ben Michel, who led those faithful to Innu core beliefs. Alcantara observes that Peter Penashue ‘reduced the number of community consultations’.29 He warns that: ‘It may be that limited consultations lead to higher levels of distrust and conflict during the treaty implementation phase …’30

Can Alcantara really believe that the nine Innu villages in Quebec are less committed to the negotiation process, having stayed with it for 40 years? Even though he claims that ‘government actors generally react negatively to confrontational tactics because such tactics tend to embarrass them and their governments’,31 can he honestly condone a requirement to abstain from peaceful protest when issues such as methyl mercury and quick clay arise, the consequences of which are described below?