Chapter 16

The New Dawn Agreement

Background

The Innu who live in the two Labrador villages of Sheshatshiu and Natuashish have been negotiating under the Comprehensive Land Claims process since 1977. During this time, with no agreement in place, the federal and provincial governments have permitted major resource extraction projects on the land with little or no consultation of or consent from the Innu peoples who live on either side of the Quebec–Labrador border.

Their land claim has been negotiated against the background of expropriation of Innu land for resource development which, with no land claims agreement in place, took scant account of the needs and wishes of the Innu in what was, effectively, a unilateral extinguishment of their rights. Even filing the petition for a land claim does not prevent land from simply being taken.1

Until the Supreme Court decision in Delgamuukw v British Columbia in 1997, there were no clear rules about how conflicts over such lands could be adjudicated. In practice, what occurred in many places was that provinces simply allowed prospecting and other industrial and settlement activity on unceded lands as if the land were under full Canadian sovereignty. This is what has happened on Innu lands with the Upper Churchill hydro-electric project of the late 1960s, military activities undertaken from the NATO base at Goose Bay since World War II, the Voisey’s Bay nickel mine in Labrador which was first prospected in 1993, and also continuous cabin building, sports fishing and hunting outfitters, road building, and municipal encroachments.2 Financial compensation is the only remedy available to the Innu for such incursions into the lands over which they hold aboriginal title.

Initially, all Innu stood together to challenge the governments’ seizure of their land for these earlier projects. However, when it was proposed by the New Millennium Capital mining company in the first decade of the 21st century to reopen the mines in the hills above Schefferville, the two Innu villages in Labrador decided, unlike the other Innu groups, to sign the New Millennium mining agreements. This was because they were in the later stages of negotiation for their own land claims agreement, Tshash Petapen, also known as the New Dawn Agreement, under which lands shared with the Innu of the Strategic Alliance and other indigenous groups would be ceded to the governments and their commercial development corporations for the primary purpose of mining and hydro-electric development. However, the land to be expropriated by the governments included other lands for which there was no immediate commercial purpose, including the area around Lake Ashuanipi, which is an important site for Innu who live on both sides of the border and has been shared for millennia. The justification criteria laid down in Delgamuukw and subsequent cases require that indigenous land be acquired for stated purposes, but the negotiation process obviates the need to satisfy these criteria because ratification of the settlement agreement is taken to signify consent (if not free, prior and informed consent) to the provisions of the agreement. Innu deals with New Millennium (for extraction) and the governments (for land) are kept entirely separate. The governments can capitalise on these agreements to take more land than is strictly necessary.

If the New Millennium and New Dawn agreements went ahead, the Innu in Matimekush Lac John would be left with no land other than their reserve land, which is owned by Canada and administered by the Department of Aboriginal Affairs.

After the dissolution of the Conseil Attikamekw-Montagnais in 1994, the Innu resident in Central Quebec and those who live in the two villages of Sheshatshiu and Natuashish in Labrador conducted separate negotiations with the federal and provincial governments. Although negotiations with the Innu of the Ashuanipi Corporation and later the Strategic Alliance in Quebec foundered on the question of extinguishment of land rights, the elected leaders and negotiators for the Innu Nation in Labrador began to entertain the possibility that it was better to settle with the government and receive at least some recognition of their land rights together with a brighter economic future and a degree of self-determination. This was a negotiating table to which the Innu who live in Quebec, but who had maintained and asserted land rights in Labrador, were invited – but again they refused to attend as they did not wish to compromise their title to the land.

The land claims settlement

Under the terms of the New Dawn Agreement in Principle (AIP), the Innu resident in Labrador are called upon to give up 90 per cent of the land in Labrador shared by all Innu in return for which they alone will receive C$115 million, made up as follows:

• C$85 million in compensation

• C$10 million for economic development

• C$10 million for a training and capacity fund

• C$10 million for a heritage fund.

By the time of ratification of the AIP, this overall figure had risen to C$117 million.3 By deliberate design, rather than identify the land which is being ceded to the governments, the AIP is couched in terms of the land which the Innu will keep – masking the fact that the compensation offered in no way represents the value of the land and resources which are being signed away. If the representatives of the governments and their commercial partners had explained that the compensation was in full and final settlement for the loss of 90 per cent of Innu lands and that the Innu would only have limited control over the remaining 10 per cent, the outcome of the referendum might have been very different.

The summary of the agreement makes clear that the Innu are still negotiating for a higher compensation payment to include an amount for Canada’s failure to fund their communities adequately since 1949 when Newfoundland and Labrador joined the Confederation. They are also seeking priority of access to federal contracts in addition to the limited priority they have been granted over Newfoundland and Labrador and Nalcor4 contracts.

While giving up approximately 90 per cent of the Innu ancestral lands, the Innu beneficiaries of the AIP will retain 5,000 square miles of Labrador Innu Lands (known as ‘LIL’) over which an Innu government, to be created on the signing of the Final Agreement, will have effective control but no ownership of subsurface rights or rights to nuclear materials. The Innu beneficiaries will have rights to be consulted over development of subsurface interests on the basis of the definition of ‘consult’ discussed below. Such future exploitation will be subject to Impacts and Benefits Agreements, for which responsibility lies with the corporations.

This land is included within the Labrador Innu Settlement Area (known as ‘LISA’) together with another 9,000 square miles over which the Innu beneficiaries have limited rights including priority in hunting and fishing.5 The level of hunting and fishing permitted will, in the event of a dispute, be decided by a committee made up of representatives of the province and the Innu.

Already there are disputes between the Newfoundland Labrador government and the Innu who live in the two Labrador villages concerning the weakness of conservation measures proposed by the provincial government which take no account of the destructive nature of sports hunting, particularly of caribou.6 Should other aboriginal groups assert their rights to hunt in LISA, the Newfoundland Labrador government will consult with the future Innu government before such rights are acknowledged. This places the Innu resident in Quebec in the same position in which they find themselves with the Naskapi over hunting and fishing rights in Quebec. The future Innu government will have the right to be consulted when applications are made for sports hunters’ and outfitters’ applications for hunting licences in LISA. They will also have the right of first refusal when new commercial wildlife operations are proposed.

When the New Dawn Agreement was explained to the Innu resident in Labrador, the PowerPoint presentation used at the poorly attended information meetings explained that ‘a significant portion of the AIP is dedicated to defining the remaining rights to “harvesting” [i.e. hunting], land use, consultation and process’. What it fails to make clear is that such clauses severely restrict or extinguish existing rights. The determinedly upbeat tone of the presentation is negated by the language of the AIP itself. It is open to question whether, in the minds of the Innu attending the meetings, the impression would have been left that they retained rights over all their former lands.

The proposed Innu government will have the right to be consulted over further development. Existing third-party rights over both LIL and LISA lands are preserved. Rights to create further easements necessary for transmission lines and for access to subsurface rights are reserved to the provincial government.

In addition, the Innu beneficiaries have access for non-commercial hunting in the new Mealy Mountains National Park.

The Lower Churchill Falls project

The commercial aspects of the land claims settlement are contained in separate agreements. According to the Impacts and Benefits Agreements summary circulated before ratification of the AIP, the project will comprise two dams, one at Muskrat Falls and one at Gull Island, together with the transmission lines between them. There will also be high-voltage alternating transmission lines from Gull Island to the Strait of Belle Isle and from Gull Island to the Labrador border with Quebec.

The Gull Island power station, which now may never be built for economic reasons, will be located about 100 kilometres west of Sheshatshiu and will include a rockfill dam 325 feet high and 4,275 feet long. There will be an approach channel, intake, penstocks, turbines, generators, a tailrace, a spillway and a discharge channel. Its production capacity will be 2,250 megawatts, producing 12,000,000 megawatt-hours per annum and providing electricity for a million people.

The Gull Island reservoir will entail the flooding of the Churchill River from Gull Island to the Upper Churchill Project, a distance of 140 miles, with a projected rise of six inches which could increase to 16 feet in flood conditions. The surface area of the reservoir will be approximately 80 square miles.

The Muskrat Falls power station, sited approximately 20 miles from Sheshatshiu, will be a roller-compacted concrete dam comprising two sections, one north of the river approximately 104 feet high and 1,400 feet long and one south of the river 95 feet high and 1,055 feet long. This will include the same ancillary structures as at Gull Island. The Muskrat Falls reservoir will flood the Churchill River from the Muskrat Falls Dam to the Gull Island Dam, a distance of 37 miles. The normal rise will be six inches but could increase to 18 feet under flood conditions. The surface area of the reservoir will be 38 square miles.

The New Dawn Agreement in Principle

The New Dawn AIP was ratified by the Innu resident in Natuashish and Sheshatshiu in a vote in November 2011. The full 480-page text of the agreement was not available to those who voted, nor was the 80-page summary which had had limited circulation beforehand, including with the proviso that it was not to be shown to anyone outside the two Innu communities because of its ‘commercial sensitivity’. This, in itself, precluded the Innu who were called upon to ratify the AIP from taking independent advice beforehand. Therefore, 2,500 Innu in the two villages in Labrador voted, on very little information, to sign away all Innu land in Labrador with the exception of small parcels which are the traditional lands of the influential families whose members were signatories to the AIP.7

Although the project is only now ready to become operational, separate commercial agreements (Impacts and Benefits Agreements) have already been entered into with Nalcor, the Newfoundland Labrador government’s commercial arm, which will oversee the hydro-electric development at Muskrat Falls and Gull Island. The terms of these agreements reflect those in the 1999 Paix des Braves discussed in Chapter 13, but it is important to note that these are discretionary terms such that the Innu enterprises which take up the commercial contracts must be competitive with mainstream Canadian businesses. Employees must meet standards of competence based on provincial standards of education, rather than the inferior federal education and qualifications that Innu receive. Further, the Impacts and Benefits Agreements should be read in light of the qualification that these terms only apply ‘where reasonable’ – and of the fact that after the initial construction few permanent jobs will be available.

The official versions of both the summary and the full AIP are in English and French, not in Innu-Aimun. The burden of explaining the full implications of the agreement rests with the Innu themselves. There are no equivalent translations of the very technical terminology in Innu-Aimun. It has been left to a member of the Natuashish Band Council to translate the full agreement into the one language understood by all those called on to ratify it.8 And, as will be seen below, the language of the AIP is not even comprehensible to fluent English speakers. The limited explanations that were given took place in poorly-attended public meetings in the two Labrador villages, and were based on the short and inaccurate PowerPoint presentation cited above.9

Yet there was a very high turnout for the ratification poll and a near-unanimous vote in favour of ratification. Anecdotal evidence suggests that each vote in favour was bought with a ‘bonus’ of C$5,000. This is supported by the following evidence.

The minutes of the meeting of the trustees of the Teshipitakan Fund,10 a fund set up for future generations from the compensation paid for the Voisey’s Bay nickel mine sited on Innu land, record authorisation of payments of the same amount in the following resolution: ‘The Trust hereby agrees to apply for a loan for approximately $12,500,000 from the Bank of Montreal to provide a per capita payout of $5,000 to each member of the Innu Nation.’

The meeting of the trustees was held by teleconference and took place on 6 July 2011, less than a week after the New Dawn ratification vote. No reason is given in these minutes for the $5,000 payouts, which would have been of the utmost significance to households where the average income, according to the latest census, was C$12,000 per annum. It would appear that money intended to be held for future beneficiaries was taken from this unrelated trust fund, for no stated purpose which could be said to advantage those future beneficiaries. There was insufficient liquidity in the trust fund, such that the payments had to come from a loan. The payments were to be made to each resident of the two Labrador villages whether adult or child, so a family of five, for example, would receive C$25,000. By contrast, an earlier application for $24,000,000 from the same fund, for housing, did not proceed when such a purpose was declared by the trustees’ lawyers to be outside the scope of the fund unless such a request resulted from a natural disaster. Here, a loan secured on the trust’s assets was taken out to benefit existing adult members of the Innu Nation who were clearly not its intended beneficiaries. The trustees were advised that this present loan of C$12,500,000 would preclude them from coming back for any future advance from the trust fund.

It was never stated that the purpose of the C$5,000 payments was to fund a bonus for voting for the AIP ratification.11 However, the timing of the payments, coming so soon after the vote itself, together with enquiries made of Matnen Benuen, one of the election monitors for the vote, who was asked specifically by Innu arriving to vote when the payments would be made, makes it very probable. Further, Gerald M. Sider notes that payments of C$5,000 each were made to the Labrador Inuit Association members on their ratification vote.12 Payments of C$3,000 were also made to the Innu of Unamen Shipu (La Romaine) to secure their agreement to Hydro-Québec transmission lines across their land.13

Questions thus arise as to whether the AIP was validly ratified by an electorate who were kept in ignorance of both the full implications of the overall agreement, and the nature of the advice offered by their consultants and lawyers. This situation also raises the larger question of whether there was proper consultation, and whether it can be said that ratification, in the circumstances, can truly be described as the free, prior and informed consent of the Innu people.

There was no attempt whatsoever to consult the Innu represented by the Strategic Alliance even though the Newfoundland Labrador government was well aware of their claims to land in Labrador. This duty was not discharged by the initial invitation to negotiate, turned down on the question of extinguishment of rights, because there was no attempt to accommodate this requirement.

The primary question which arises with regard to the New Dawn AIP is whether there was sufficient consultation to enable the ratification vote to stand as the free, prior and informed consent to the cession of Innu land for the purposes of the Lower Churchill Falls hydro-electric project, and whether the governments acted honourably throughout the Comprehensive Land Claims process.

Depriving the Innu of the vast majority of their land, over which the governments have been in negotiation for 33 years, must fall at the furthest end of McLachlin CJ’s spectrum in the Tsilhqot’in case (see Chapter 8). The implications of the settlement are fundamentally life-changing to the Innu, whose subsistence and identity continue to lie in the use and protection of the land. Once the hydro-electric project is completed, the land will be lost to them forever and, as the Innu who live in Quebec continue to maintain, no price could or should be put on the land for which they are responsible.

These circumstances require that, in order for the honour of the Crown to be maintained, all Innu, not just those who live in Labrador, should have been consulted from the outset on the project. When those who live in Quebec raised objections, these should have been taken seriously and addressed. Their votes should have counted in the ratification of the AIP. Instead the governments, despite knowing that the Innu resident in Quebec had asserted their rights to land in Labrador, completely ignored them after they refused to join in the negotiations as a defence of their land rights. In pursuing this course, neither the governments nor the Innu resident in Labrador acted with honour.

Second, under the possible justifications listed by Lamer CJ in the Delgamuukw case, aboriginal land can only be taken for specific projects. The land demanded by the governments under the terms of the New Dawn Agreement extends far beyond that actually required for the Lower Churchill Falls project and includes land for which there is no immediate use, and thus its inclusion cannot be justified. This requirement is obviated by a negotiated settlement.

Instead of the Crown’s insistence on the extinguishment of all land rights, according to these precedents and legal principles, there should have been a genuine attempt to find a way of proceeding with the project without extinguishing the rights, either through shared ownership or through a lease which acknowledged that the underlying title to the lands affected remained with all Innu, not just those resident in Labrador. The governments should also have considered the possibility of leaving full title to the land with the Innu, or a joint title, and, if this were not done, should have provided reasons why this was not possible. Any of these courses of action might have brought the Innu resident in Quebec back to the negotiation table.

Equally problematic is the fact that not only was there little attempt to ensure that all Innu called upon to ratify the agreement were fully informed, but the full agreement was not even circulated within the Innu villages. There was no opportunity for individual Innu to take independent advice. The negotiation process was conducted behind closed doors and, as stated above, availability of the documentation necessary for fully informed independent advice was not made available.14

As will be seen below from the discussion of individual clauses in the agreement, clauses which were hardly touched on, either in the PowerPoint presentation or in the summary of the AIP, were explained in favourable terms before the vote but were then rewritten in the AIP, with severe implications for the Innu. There can be no prior consent when the text of the agreement is not available to the beneficiaries until after ratification – and this in itself is sufficient to nullify ratification.

Although the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) was endorsed by Canada prior to the signing of the AIP, it does not appear either that the Innu were advised as to its significance or that it had any impact on the final content. Although the notes accompanying the agreement leave many of the clauses open to negotiation, no mention is made of UNDRIP. Because its provisions are parallel to the fiduciary duties assumed in the Royal Proclamation of 1763, even before endorsing UNDRIP the Crown already had an obligation to deal with indigenous peoples involved in land claims negotiations according to the standards that UNDRIP imposes. At the very least, UNDRIP provides an independent benchmark for the conduct of governments dealing with indigenous peoples.

Perhaps the most pressing point of concern is that the AIP is stated to have no binding legal effect, but work is nearly completed at Muskrat Falls. Flooding of the land has already begun. It would appear that this is yet another land grab with no agreement in place. Although the Innu were given powers in the AIP to monitor any works on the project, the area has been fenced off and access denied to Innu except as workers. Signature of the Final Agreement is still pending and thus Nalcor has no rights on the land, only personal rights under the Impacts and Benefits Agreement it signed with the Innu Nation of Labrador. The Innu are in a stronger position than the James Bay Cree and Inuit because their rights to the land have been recognised through the negotiation process. This is particularly important in the current financial climate, when Newfoundland and Labrador settler Canadians are beginning to question the huge cost of the project15 and particularly at a time when there is a decline in the need for electricity in the United States. The majority of the million people whose electricity needs will be supplied by the project live in the United States, not Canada. This could mean that at this late stage the entire project could be abandoned and the landscape will have been destroyed for no purpose.

When invoking the honour of the Crown, the Supreme Court’s stated aim is to promote reconciliation. In the conduct of negotiations for the AIP and subsequent incursions onto what is acknowledged to be Innu land, the federal and Newfoundland Labrador governments have fallen short of this standard. The result has been what the courts feared – mistrust of the governments and their commercial partners and dissension within the two villages concerned. The way in which the federal and Newfoundland Labrador governments have failed to address the claims of the Innu who live in Quebec exemplifies the sharp dealing in which the Crown should have no part. With no information or consultation over the legitimate claims of the Innu resident in Quebec to lands in Labrador, there is no question that the governments have, in the words of Chief Justice McLachlin, ‘cavalierly run roughshod’ over the rights of the Innu.

The terms of the Agreement in Principle

Turning to the AIP itself, the definition of what constitutes consultation given in the New Dawn AIP reads as follows:

‘Consult’ means to provide:

To the Person being consulted, notice of a matter to be decided in sufficient form and detail to allow that Person to prepare its views of the matter;

A reasonable period of time in which the Person being consulted may prepare its views on the matter, and an opportunity to present its view to the Person obliged to consult;

Full and fair consideration by the Person obliged to consult of any views presented.

There is a further provision that written reasons must be given for failure to act upon any requirements that are not substantially incorporated by the developer.

Clause 2.7 of the AIP provides that the agreement exhaustively sets out Innu rights to be consulted and further that they will have no right to challenge the definition through the courts. Not only do these provisions fall short of the obligations to consult imposed by the Supreme Court of Canada in Delgamuukw, let alone the more rigorous analysis in Haida Nation v British Columbia (Ministry of Forests) and Taku River Tlingit First Nation v British Columbia (Assessment Director), they do not come close to Article 19 of UNDRIP, which says: ‘States shall consult and co-operate in good faith with the indigenous people concerned through their own representative institutions in order to obtain the free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.’ (emphasis added)16

This article would allow all Innu to challenge the validity of the ratification of the agreement. They were never given the opportunity to scrutinise the full document, in their own language, and to seek informed independent advice.

Yet, as discussed in Chapter 8, the significance of the duty to consult as laid down in modern treaties has been approved by the Supreme Court of Canada in Beckman v Little Salmon/Carmacks First Nation.17 The definition of ‘consult’ found in the Little Salmon/Carmacks First Nation Final Agreement18 considered in the case is exactly the same as that in the New Dawn AIP. This in itself calls into question the governments’ willingness to negotiate freely with the indigenous peoples whose land they are taking and to deal with each group according to their individual circumstances.

The interpretative presumption in favour of the weaker party is specifically excluded in the New Dawn AIP. Squatters’ rights in the land are also excluded,19 except for those of third parties.

Should the federal and Newfoundland Labrador governments ever negotiate over the New Dawn lands with the Innu represented by the Strategic Alliance, it is unlikely that the terms offered to them would be any different from those offered to the Innu Nation in Labrador. There is a striking similarity between the terms of all the land claims agreements which have been the subject of litigation. All that the Strategic Alliance can hope for is a new treaty making them parties to the New Dawn Agreement, or monetary compensation for the loss of their lands. Thus the terms of the New Dawn Agreement are of importance to the Strategic Alliance even though these terms were negotiated over their heads – because they would be required to accept similar terms.

Indemnity and release

The [Labrador] Innu government to be set up under the Final Agreement must give an indemnity and release for ‘all past claims known or unknown relating to any act or omission prior to the agreement …’

This is accompanied by an indemnity from all costs and damages arising from any Innu challenge to the agreement. In the summary ‘Innu’ is defined as only those Innu who live in Labrador. The definition is still under negotiation for the Final Agreement, since clearly such a narrow definition is absurd. The terms of the AIP make it clear that only Innu beneficiaries in the two Labrador villages are included within the definition. Thus Innu from both sides of the border face an effective deterrent from asserting their rights to challenge the clauses of which they had no knowledge, the PowerPoint briefing having been so restricted. Should they take action, any compensation available to them through their court action must be paid by the Innu Nation of Labrador.

The mechanics of the indemnity were explained in the PowerPoint presentation to the public meetings in Natuashish and Sheshatshiu in technical, unfamiliar English. It appears that these presentations took place after the terms of the AIP had been decided.20 Again, they call into question the honour of the Crown and the integrity of the lawyers who allowed them to stand, the more so since the release and indemnity apply to all claims for compensation for the damage caused by the presence of methyl mercury and PCBs, which are addressed within the initial payment. The stated purpose of the release and indemnity is that the payments to the Innu under the Impacts and Benefits Agreements discussed below are in full and final settlement of all amounts to be paid but, as in all projects of this magnitude, there may be instances of negligence on the part of the corporations for which, under the general law of tort, liability cannot be excluded but nevertheless has been specifically excluded in this AIP.

Since ‘equity looks to the substance rather than the form’, a court might accept a challenge from disaffected Innu on the grounds that these provisions oust the jurisdiction of the court. Nevertheless, it is more likely that the court would take Deschamps J’s view discussed in Chapter 9 that the Innu were free to negotiate such terms and cannot renege on them. In any event, the Innu Nation would have to pay any compensation, not the governments or corporations.

Extinguishment

Only six of the 28 PowerPoint slides are devoted to explanation of the 480-page AIP. The rest are devoted to the Impacts and Benefits Agreements to be entered into with the hydro-electricity corporations. One line is devoted to the concept of ‘certainty’. In the final ancillary clauses in the summary can be found the following paragraph: ‘The Final Agreement will detail the scope and extent of the release that the Innu will give to Newfoundland and Labrador and Canada in return for the constitutionally protected rights and the benefits set out for the Innu.’

In the AIP this provision becomes:

 2.12.1 This Agreement will:

a. constitute the full and final settlement of the aboriginal rights of Innu in Canada, except in Quebec; and

b.… exhaustively set out the rights of Innu in Canada, except in Quebec, that are recognized and affirmed by s35 of the Constitution Act 1982.

What is described as a ‘release’ in the summary becomes an extinguishment of all Innu rights in Labrador other than those specifically provided for in the Final Agreement. It should be noted that, under this provision, the Innu in Sheshatshiu and Natuashish are still free to pursue their claims to land signed away under the James Bay Agreement. But at the public meetings, the implications of the release and indemnity and the extinguishment clause were linked to the Impacts and Benefits Agreements (IBAs) rather than the land claims settlement.

Further expropriation

The summary available to community leaders on which the ratification vote was based mentioned that the boundaries of the LIL could be ‘adjusted’ to accommodate the needs of the Lower Churchill Falls project. It omitted to mention that the governments and corporations could expropriate a further 12 per cent of the LIL and could carry out further development on it. If this were ever taken before the courts, there is a danger that, under Little Salmon/Carmacks, the Innu would be held to be reneging on the Final Agreement if they raised the inadequate standard of consultation undertaken by the governments.

Warranties given by the Innu Nation

Under the AIP, the Innu Nation gives a warranty that:

 2.25.1: It represents Innu and

In respect of the matters dealt with in the Agreement, the Innu Nation has the authority to enter, and it enters, into the Agreement on behalf of all Innu who have or may exercise any aboriginal rights, including aboriginal title, in Canada, or who may make any claim in respect of these rights.

It is difficult to see how the signatories could give this warranty in light of the secrecy maintained over the terms of the agreement, the lack of opportunity for individuals to seek independent advice and the attempts to influence the outcome of the ratification vote by incentives. The purpose of this clause is to place liability for any failure to seek the consent of a wider set of Innu voters on the shoulders of the Innu Nation and free the governments from any further liability after payment of the sums due under the land claims settlement.

Ratification of the Final Agreement will be conclusive proof of the consent of the Innu (as defined in the AIP) to the terms of the agreement. A vote in favour by 51 per cent of those entitled who actually vote will be sufficient ratification.

The above provision means that, if only 25 per cent of those entitled actually vote, the agreement would be ratified – hardly a resounding consent from the communities involved. In the vote on the AIP, however, this point proved to be nugatory, since the provision of a C$5,000 bonus payable for each vote ensured that turnout was very high.

Royalties

The Innu will receive a royalty of 25 per cent of the profits from the exercise of subsurface rights on LIL, and a smaller proportion of the annual revenues from subsurface resources from the LISA on the basis of 50 per cent of the first C$2 million dollars of revenue and 5 per cent of any revenues above that figure; and this despite the fact, as we shall see below, that the Innu are entitled under UNDRIP to the ownership of subsurface rights.

The military

There is a provision for access to the Innu lands by military personnel:

17A.5.3 Canadian forces personnel may enter, cross or remain on Labrador Innu Lands to carry out activities related to national defence and security in accordance with Federal Law; [Members of foreign armed forces serving with, or under the operational control of the Canadian forces may enter and cross Labrador Innu Lands to carry out training activities.]

The words in square brackets indicate text still under negotiation. This provision has been hotly disputed by the Innu beneficiaries. Overflying of Innu aboriginal land has been the subject of protests and demonstrations. The notes to the AIP reveal that Canada is insisting on that part of the clause which is shown in brackets. If this provision were removed, LIL would instead be subject to the national law to which all private landowners are subject with regard to access by the military.

Archaeology and burial sites

Before any archaeological activity takes place in the LISA, a permit must be obtained from a permitting authority, whose membership and constitution have yet to be negotiated but which represents the province, with a duty to consult the Innu government. The Innu government will control access to archaeology within LIL, with a duty to consult the provincial archaeological permitting authority.

For Innu burial sites, the Innu government must provide the permitting authority with a list of known sites in LIL and LISA and they can add to this list if more sites are discovered. However, if a site does not appear on that list, there will be no duty to consult the Innu before the site is disturbed. I would suggest that the honour of the Crown requires that the Innu must give their free, prior and informed consent whenever such a site is discovered, whether it appears on the list on not. However, the AIP does specify that when such remains are discovered by a permit holder, work must cease until permitted by the permitting authority – not the Innu government, which will only have rights of consultation. While title to archaeological material in LIL is vested in the Innu government, title to such material in the (much larger) LISA vests in the provincial government, even when that material is Innu. One effect of this provision is that since the land was shared by all Innu and other indigenous peoples, the Innu represented by the Strategic Alliance have no say in the fate of the archaeological remains and burial sites of their own ancestors. The AIP does at least bind the province to undertake to use reasonable efforts to ensure that artefacts held in collections in other provinces are repatriated and to facilitate access to such archaeological and ethnographic material.

Nalcor promised to clear the site of archaeological artefacts before work began at Muskrat Falls but, as I walked the old portage route towards the falls in November 2011 with Anthony Jenkinson, a local activist and archaeologist, he pointed to the many flags where he had found items which the Nalcor archaeologists had missed, and he found yet more as we continued along the edge of the lake at the head of the falls. More than 40,000 artefacts have been recovered from the ancient campsites which date back 2,000–3,500 years, making this a site of major importance.21

The Impacts and Benefits Agreements

While the province agrees to ensure that no development will be permitted without an IBA in place, the agreements themselves are between the development corporations and the Innu government. However, before granting development licences, the province must consult with the Innu government in accordance with the definition of ‘consult’ discussed above. Where the province awards development or ancillary contracts, they are subject to the same provisions as those imposed on the development corporations.

The stated aims of the Impacts and Benefits Agreements, according to the PowerPoint presentation, are:

• to be the means by which the Innu receive revenue from the Lower Churchill Falls project;

• to provide them with employment and training benefits and business opportunities; and

• to enable them to participate in environmental protection and management.

For Nalcor, the benefits are said to be:

• aboriginal certainty and stability for the project; and

• the Innu release and indemnity for the effects of the project, which are stipulated to be irrevocable.

This release and indemnity is the first of the significant terms of the IBAs to be mentioned.

The presentation then lists the employment, training and business opportunities to be made available to the Innu, but fails to mention the provisos which effectively exclude many individuals and businesses from participating because of their lack of education, training and competitiveness. Targets are set and education and training opportunities and funding are promised, but the fact that the Innu will be competing with non-Innu is underplayed or ignored. These provisions are expanded in the summaries of the IBA and the Upper Churchill Redress Agreement (UCRA) which were circulated before ratification and where the qualified nature of these terms is clearer – for example, it is stated that Nalcor will provide jobs only to ‘qualified Innu’, ‘if there are jobs available’. If there are no qualified Innu, Nalcor can hire whom it chooses. Moreover, union requirements will have priority over the employment provisions in the IBA. Innu employees will be entitled to only two weeks’ paid leave per annum, to which they can add a further two weeks’ ‘cultural leave’, but which would be unpaid. This would mean that, added to the time off in the normal work round, Innu employees could take six weeks in order to go hunting or pursue other cultural activities. In addition, the company agrees to provide workplace practices which are sufficiently flexible for traditional Innu activities.

So far as Innu businesses are concerned, Nalcor must use them for contracts worth a minimum of C$266 million for the planning and construction works at Gull Island and for at least C$134 million at Muskrat Falls; otherwise Nalcor must pay penalties – but these are small enough to make it commercially viable to fail in this obligation. In any event, the criteria on which it is possible to find an Innu business unqualified for the work are wide enough to make this obligation meaningless.

So far as environmental management is concerned, Nalcor has the final decision-making power, after having consulted the Innu. This means that the polluter is judge and jury over its own activities. There is provision for the company to exclude the Innu from areas where works are being carried out, and this includes imposing hunting restrictions. This appears to be the clause on which Nalcor is presently relying, ignoring the fact that the AIP is not the Final Agreement and therefore has no binding force – so the land on which they are encroaching is currently still Innu land.

In managing the environment, Innu traditional environmental knowledge will only be taken into account ‘where it is relevant’.

Payments due to the Innu under the IBA will be paid into a trust whose beneficiaries will be the Natuashish and Sheshatshiu First Nations and the Innu Nation. The trustees will be members of the Innu Nation. Should the beneficiaries sue Nalcor, the trustees will indemnify the corporation to the amount of any sums awarded.

As with the AIP, ratification of the IBA took place without the voters having access to the full agreements. A key provision is that the Innu Nation must collaborate with Nalcor in preventing any demonstration against the works carried out and must assist the corporation in fighting any claim against it from an Innu individual. As will be seen in Chapter 18, the Innu took a relatively minor part in the protests against the Muskrat Falls project in 2017 precisely because of this clause.

Provisions for Innu participation in environmental management just meet the standards approved in the case of Mikisew Cree First Nation v Canada (Minister of Canadian Heritage), because they provide for a joint Nalcor–Innu environmental committee, Innu environmental monitors and a dispute resolution process.

Under the separate Upper Churchill Redress Agreement, the Innu resident in Labrador receive financial compensation for the impacts of the Upper Churchill Falls development on their aboriginal rights and for adverse environmental effects. In return Nalcor and the province receive a similar release and indemnity as in the New Dawn Agreement. Up until 2041, the Innu receive an indexed annual settlement payment. After 2041 they receive 3 per cent of the dividends received by Nalcor. The summary of the UCRA also provides for the settlement payments and dividend share to be paid into a trust with the same indemnity provisions applying to the Churchill Falls (Labrador) Company – in which the Newfoundland Labrador government has a 68 per cent shareholding.22 Under UCRA, residents of Natuashish and Sheshatshiu will also be entitled to free power up to a limit of 10,200 kWh per annum.

In this document, the reasons for the indemnity clause are explained more fully. First, the annual payments are intended to compensate for losses incurred by the Innu who live in Labrador and any further compensation awarded by a court would mean the Churchill Falls (Labrador) Company would be subject to double jeopardy. UCRA also states expressly that, with the exception of harms caused by methyl mercury, the Churchill Falls (Labrador) Company will be liable for damage and personal injury which is caused by the company or its employees. However, payments due under this agreement are not subject to independent scrutiny; they are certified by the company’s own senior financial officer.

Included in the presentation are terms for the resolution of outstanding electricity bills in the two Labrador villages. Outstanding bills for individual Innu are to be settled by a deduction of 50 per cent of the outstanding amount from the payments under the IBAs, and 50 per cent from UCRA. However, despite the use of their land, it is clearly stated that they will be treated as any other Newfoundland and Labrador Hydro residential customers and no discount afforded them.

What does the Tsilhqot’in judgment mean for the Innu?

The title of the Innu Nation to land all over Labrador has already been acknowledged by the federal and provincial governments, so they do not have to establish title to land. However, they have already agreed to sign over the majority of their land to the federal government in an agreement which the government will claim was negotiated at arm’s length by authorised representatives of the Innu. They will also say that they have the free, prior and informed consent of the beneficiaries of the agreement. Therefore, the following appear to be the grounds upon which the validity of the New Dawn Agreement can be challenged:

• If the text of the full agreement was withheld from the majority of the voters, their vote cannot be on the basis of fully informed consent.

• It is unclear whether there was genuine endorsement of the signatories by the Innu they represented.

• Bearing in mind that negotiations are still at the AIP stage, the land already flooded for hydro-electricity dams cannot be said to be available to succeeding generations of Innu, despite this commitment to future Innu being a key plank of the agreement.

The judge in Tsilhqot’in Nation v British Columbia spells out very clearly that free, prior and informed consent is required for all incursions onto aboriginal land unless such activities can be justified ‘by a compelling and substantial public purpose and are not inconsistent with the Crown’s fiduciary duty’, in which case the duty is to consult and accommodate where possible the requirements of the aboriginal group concerned. Hydro-electric development is specifically mentioned as a justifiable use of the land by the governments.

Under the existing law, the lack of information available to voters and some irregularities in the voting process could invalidate the ratification – but the Tsilhqot’in case does not add much where a valid treaty is already in place. Upon signing of the Final Agreement, land will cease to be aboriginal land unless a successful challenge can be made to the question of valid ratification.

With regard to the James Bay lands, however, Innu title to the affected lands was ignored and then unilaterally extinguished by the governments. There was a strong prima facie case for aboriginal title to those lands, and thus at the very least a duty to consult in good faith and where possible accommodate; and, under UNDRIP, a requirement of free, prior and informed consent. In the circumstances, the governments realise that they have a much freer hand if they persuade indigenous parties to negotiate a treaty instead.

So far as the Innu of the Strategic Alliance are concerned (newly named also as the Innu Nation as a separate organisation representing the Innu who live in Central Quebec), however, the Tsilhqot’in judgment has more to offer. Incursions have been made onto both the James Bay lands and the Labrador lands to which they have laid claim. The federal and provincial governments have negotiated with them on the premise that they have aboriginal title to the disputed lands and, should they go to the court for a declaration of aboriginal title, then following the criteria laid down in Tsilhqot’in, their claim will be validated – and not only to lands where they are settled, but also to lands over which they migrate. Without their free, prior and informed consent to the surrender of lands to which they are entitled, in principle they could overturn the New Dawn Agreement and also have their rights to the James Bay lands recognised and compensated. Since the governments must take reasonable steps to accommodate the requirements of the aboriginal groups, they must cease to insist on extinguishment of all rights other than those contained in the agreements. For example, lands could be leased by the aboriginal group or held in joint ownership.

The Uashat mak Mani-utenam and Matimekush Lac John Innu First Nations have already challenged the Iron Ore Company, following conclusion of an agreement with the Innu Nation of Labrador for exploitation of lands which are the traditional territory of the challengers. They filed legal proceedings against the Iron Ore Company on 18 March 2013 on the same grounds as those applied in Tsilhqot’in.23

The Tsilhqot’in decision has been criticised by Professor Robert A. Williams.24 He points out that ‘what the court is saying is that your government can come in and infringe on your title as long as it has a compelling justification’. This suggests that, if indigenous peoples such as the Innu in Labrador settle a land claim under the present system, principles of justification do not even apply. As has been seen in the dissenting judgments in Little Salmon/Carmacks the indigenous group will be held to what they have signed.

The only way for indigenous rights to be fully upheld is to go to court for a declaration in the wake of Tsilhqot’in. Whether any court would be prepared to rule that the justification argument approved in R v Sparrow was spurious is problematic but McLachlin CJ, by linking justification so explicitly to section 35 (1) of the Constitution Act 1982 has created an opening for such an argument.

After Tsilhqot’in, the Harper government backed off from the Comprehensive Land Claims process. It is claimed that the government is now focussing its efforts on assimilation of indigenous governance into the federal and provincial structures. Its principal purpose is to ‘terminate the constitutionally protected and internationally recognized Inherent Aboriginal and Treaty Rights of First Nations’.25

This is borne out by an article on the Guardian website by Martin Lukacs26 which reports that, since 2008, the Department of Aboriginal Affairs and Northern Development Canada has been trying to evaluate the ‘significant risks’ posed to Canadian plans to attract C$650 billion of investment to the extractive industries on indigenous lands. The government was seeking to evade Supreme Court decisions such as Tsilhqot’in. In the article, Arthur Manuel, chair of the Indigenous Network on Economies and Trade, is quoted as follows: ‘The Harper government is committed to a policy of extinguishing indigenous peoples’ land rights, instead of a policy of recognition and co-existence. They are trying to contain the threat that our rights pose to business-as-usual and the expansion of dirty energy projects. But our legal challenges and direct actions are creating economic uncertainty and risk, raising the heat on government to change its current policies.’

It is further pointed out by Manuel that ‘native land claims scare the hell out of investors’. In the same article, Martin Lukacs claims that the federal government ‘has spent far more fighting aboriginal litigation than any other legal issue – including $106 million in 2013, a sum that has grown over the last several years’. At the same time, Lukacs reports, the government is cutting funding to indigenous groups who seek to fight land claims. Although Liberal Prime Minister Justin Trudeau has throughout his years in office made reconciliatory approaches to the First Nations, little action has emerged to date. It would appear that the fight for land to which indigenous groups are entitled has reached a new phase. Legislation will always trump litigation and the governments’ hands may soon be tied by the impending Canadian UNDRIP legislation.

One further word of warning on the effectiveness of UNDRIP, particularly relevant to the land claims process, was given when sociologist and former UN Special Rapporteur on Indigenous Peoples Rudolfo Stavenhagen criticised the negotiation process:

Even more serious is the widespread practice of corruption in poor societies with great inequalities. Indigenous peoples are often the victims of corruption, and sometimes they become partners in corruption as well. Unless we work out the nuts and bolts of improving human rights mechanisms [UNDRIP] will remain an empty word, and it has to do with existing institutional structures, legal systems and power relationships which in turn relate to the wider social system in which Indigenous peoples are the historical victims of human rights violations to begin with.27

Having ratified the AIP by vote, the Innu who live in the two Labrador villages are beginning to question the terms of the New Dawn Agreement agreed over their heads, on the advice that this was the best deal they could get.28 In particular, they note that valuable contracts are taken up by the signatories to the agreement instead of being processed by a co-operative for the benefit of all.29 They are concerned that work is almost completed at Muskrat Falls in advance of a Final Agreement and are seeking an independent review of the full terms of an agreement which they ratified without full information as to its contents and implications.

Napess Ashini, a Sheshatshiu hunter and indigenous rights campaigner, observed:

The New Dawn Agreement is just another Voisey’s Bay Agreement, just another rip-off. A big financial benefit for just a few. Ninety per cent of us will not be getting anything, only short-term benefit for us all. Let’s all THINK!!! Let’s make sure that 90 per cent of us will not get the short end of the stick this time. Let’s not be fooled by non-Innu consultants and legal advisers who tell us what to do. They dismantle and control our Innu history, culture, language, intellectual properties, etc. They make us weak and they want us to surrender our land to the Canadian government without resistance. The don’t tell us what are [the] repercussions or ramifications in the long term. They are not our friends. I consider them as enemies. These are my comments. I will ask more questions when consultations take place in future.

It would appear that, as with the Dene,30 who concluded a land settlement agreement in the North West Territories, those who sit at the negotiation table in Natuashish and Sheshatshiu ignored the concerns of the elders when recommending acceptance of the terms of the AIP.31

In November 2011, an individual band member challenged the validity of the recently held Band Council elections in Sheshatshiu. The matter went to court, where a federal judge ruled that elections to the Innu Nation, a public body, were subject to the court’s scrutiny.32 New elections had to be held, which produced a younger chief and Band Council members. Such an initiative marks another turning point away from the consensual governance of the elders of the Innu people, but simultaneously demonstrates a lack of faith in the Canadian Band Council system.

This brings us back to the concept of a fiduciary duty, which was applied first to those who took responsibility for the property of others, discussed in Chapters 7 and 8. Such a duty equally applies to those who represent the Innu resident in Labrador, and their lawyers and consultants. The fiduciary duty concept is scrupulous in excluding any element of unjust enrichment – however committed to their clients, no person who assumes a position of trust can benefit in any way from information or opportunities received as a result of that position except with the free, prior and informed consent of the beneficiaries. If even a single beneficiary fails to give that consent, whether through unwillingness or through incapacity, such consent is invalid.33 This legal constraint would invalidate, for example, the use of the Voisey’s Bay future beneficiaries’ trust fund for the provision of the C$5,000 bonuses.

An examination of the Canadian Business Registries by Sheshatshiu resident Anthony Jenkinson shows that some of those who represented the Innu Nation have interests in the companies engaged to carry out the preliminary works on the hydro-electric project at Muskrat Falls.34 They placed themselves ahead of those in Sheshatshiu and Natuashish who wished to tender for this work and ahead of the formation of co-operatives to take on this work for the benefit of the two communities as a whole.

Brad Cabana35 published a list of donors to the election fund of Peter Penashue, who was instrumental in the Innu negotiations for the New Dawn Agreement and one of its signatories. Penashue was elected as Progressive Conservative MP for the region and became the first indigenous minister in the Harper administration. He was prosecuted for irregularities in the donations to his campaign and in 2013 had to resign both as minister and as MP.

Cabana’s list notes the donations which were disallowed by the court. Many of these were from officers and employees of institutions with a close financial interest in the success of the Muskrat Falls project.

Public anger was also directed at Peter Penashue’s brother-in-law, Paul Rich, a former chief at Sheshatshiu who, as CEO of Innu Development Limited Partnership, a private firm set up to broker deals with non-indigenous companies who wish to do business on Innu land, was paid a salary of C$1 million over the course of two years.36 Prosecution for fraud failed for lack of evidence.

Writing on the ‘Uncle Gnarley’ blog, Newfoundland and Labrador commentator Des Sullivan has also pointed up conflicts of interest and nepotism in the awarding of executive posts and contracts by Nalcor.37

As we have seen in Chapter 7, the test for breach of fiduciary duty was laid down in the English case of Bray v Ford by Lord Herschell, as follows:

1. The defendant is actually in a fiduciary relationship with the claimant – a relationship in which it is possible to exert undue influence;

2. the defendant obtained a benefit; and

3. there is a causal connection between the relationship and the benefit.

This test was subsequently adopted by Wilson J in the Canadian case of Frame v Smith.38

Those sitting around the New Dawn negotiating table were in an actual fiduciary relationship with the people they represented (the beneficiaries) and had scope for exercising discretion and power on their behalf. As elected members and their agents, lawyers and consultants, they had recognised professional relationships which required the standard of the utmost good faith. They were the only people who had access to the full text of the Agreement in Principle and IBAs, and they were the first to know of the business opportunities which would be available from the works. If they then used knowledge and opportunities (the benefit) received as a result of these positions to secure the business opportunities from which they are now profiting, there is a clear causal connection between these two sets of circumstances. However, there is no clear evidence for this. One federal negotiator interviewed by Stephanie Irlbacher-Fox told her: ‘I have seen colleagues power-trip at negotiations; there are situations where they have pulled things off the table or refused to give on something that is well within their mandates. Sometimes it’s strategic; sometimes it’s just to bring the First Nations negotiator under control, or it’s about their own ego, where they want to get back at a negotiator who made them angry.’39 She reports that First Nations negotiators in the North West Territories regarded their consultants with suspicion and anger. It would seem that Chief Justice McLachlin’s admonitions to act in treaty negotiations in a way consistent with the honour of the Crown passed them by.

Neither the legal partnership Olthuis, Kleer Townshend nor any of the other consultants to the Innu Nation have been approached in the research and writing of this text, and there is nothing to suggest that they have taken advantage of their position or acted in bad faith. However, Boardman v Phipps40 makes clear that, even when the fiduciary acts to promote the best interests of the beneficiaries in acquiring these interests, it is still the case that without the free, prior and informed consent of all the beneficiaries, they cannot take any profit or advantage from the opportunities or knowledge received as a result of their insider knowledge. Where business arrangements acquired by the fiduciaries were acquired without such consent and the lawyers, consultants, negotiators and representatives are therefore liable to account for the profits made and advantages taken which came to them as a result of their relationship to the beneficiaries of the AIP. This conservative, proscriptive approach to the nature of fiduciary relationships was confirmed by the Supreme Court of Canada in Galambos v Perez in 2009.41

On the ratification of the AIP, C$115 million was payable to the Innu Nation – but accumulated fees and expenses of the lawyers and other consultants were deducted from this sum to the tune of C$60 million. By contrast, the figure for such fees accepted by the Supreme Court in Beckman v Little Salmon/Carmacks First Nation was C$7 million.42 If the Innu Nation did not receive fully itemised bills to account for every item of this sum, they should call for these immediately. If they are not forthcoming, the Innu Nation can call for the fees to be ‘taxed’ by the professional bodies, who will scrutinise the accounts and reduce them if appropriate. Further, as fiduciaries, fees and expenses are subject to a test of reasonableness and can be challenged through the courts of equity.43