Innu sue province, feds over Muskrat Falls rate mitigation deal

Lawsuit filed day after Canadian Human Rights Commission report slams Canada’s track record with Innu and urges new approach to negotiations.

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Innu in Labrador are suing Canada and the Government of Newfoundland and Labrador over a financial agreement they say violates their rights as Indigenous people. The move comes just a day after the release of a report that details a number of ongoing human rights violations against the Innu by the federal government.

On Tuesday, leaders from Sheshatshiu and Natuashish filed the lawsuit at the Supreme Court of Newfoundland and Labrador in St. John’s against the settler colonial governments over the recently announced Muskrat Falls rate mitigation plan.

The litigation is “based on the fact that Canada and the Province took direct, deliberate and decisive action to extinguish the financial benefits that the Innu people were promised in return for their consent that Muskrat Falls could be built,” a news release from Innu Nation issued Tuesday afternoon explains.

Together the Innu Nation, Sheshatshiu Innu First Nation, and Mushuau Innu First Nation say the federal and provincial governments “violated their duties to the Innu” as outlined in the Lower Churchill Impacts and Benefits Agreement (IBA) and the Agreement-in-Principle (AIP) that effectively paved the way for the construction of the controversial Muskrat Falls hydro project. 

The plaintiffs allege Canada and Newfoundland and Labrador’s new Muskrat Falls deal “breaches the Crown’s fiduciary duties to the Innu, breaches the duty to consult and accommodate, and breaches the honor of the Crown.”

In their statement of claim the Innu say they consented to the Lower Churchill Projects based on the agreed financial benefits they would receive in exchange for permitting hydroelectric development on the unceded lands where they have asserted Aboriginal rights and title.

The claim also states the province “promised that Innu financial interests would be held harmless throughout the Rate Mitigation Negotiations,” and that Premier Andrew Furey “specifically and explicitly confirmed that Innu Nation would be consulted before any rate mitigation agreement was announced.”

No comment from Province

The Independent asked Furey to respond to the allegations but the request was redirected to Justice and Public Safety, which declined comment since the matter is now before the courts.

In Tuesday’s news release, Innu Nation Grand Chief Etienne Rich addressed Furey and Prime Minister Justin Trudeau directly: “The Innu people care about your actions, not your words. And right now your actions send the message loud and clear that you do not care about the Innu, and that you think you can stab us in the back and we won’t do anything,” he said. “Well you are wrong. We will not be brushed aside with meaningless statements of ‘commitments’ that have no substance. The Innu will fight for our rights as we have always done.”

The Innu are seeking a declaration from the courts that the provincial and federal governments have a fiduciary obligation to disclose to Innu Nation any details of the rate mitigation negotiations that would affect the amount and timing of benefits the Innu would receive via the Lower Churchill IBA. They also want a declaration that the governments have a duty to consult the Innu, and that the province has a legal obligation to the Innu “to avoid self dealing and other conflicts of interest in allocating financial benefits received from Canada with respect to the Rate Mitigation Negotiations.”

On the latter point, the court filing says that Canada’s diversion of revenues from the Hibernia offshore oil project toward rate mitigation for Muskrat Falls—without formalizing this part of the deal in any final agreement—would be “an unjustifiable attempt to exclude [the Innu] from a share of those revenues and an example of self-dealing” by the province.

The Innu want compensation for the colonial governments’ breaches of their legal obligations of an amount to be determined at trial. They are also asking the court for an injunction to prohibit Canada and the province from finalizing a rate mitigation deal until these issues are resolved.

Human rights commission says Canada still violating Innu’s rights

Canadian Human Rights Commission Chief Commissioner Marie-Claude Landry. (Screencap.)

The lawsuit comes just 24 hours after Innu leaders and lawyers representing the Innu Nation joined officials with the Canadian Human Rights Commission [CHRC] in St. John’s to announce the findings of a follow-up report on a 1993 investigation that was undertaken in response to complaints from Innu in Labrador. That report found Canada had breached its constitutional obligations to the Innu of Labrador. 

The latest investigation found that nearly 30 years after the original report, the federal government continues to violate the Innu’s rights in a number of ways. It also details decades of state violence and makes several new recommendations to bring that violence to an end.

On Monday, CHRC Chief Commissioner Marie-Claude Landry said that despite multiple apologies and national inquiries undertaken by the federal government in recent years, “many challenges that are still playing out today for Innu people are remarkably similar to those outlined in the original 1993 report.”

The 1993 report found that the provincial and federal governments’ relocation of Innu to Iluikoyak Island in 1967—which cut Innu off from activities like hunting and harvesting for much of the year, while placing them in houses with no running water or sewage—had devastating impacts on their cultural, social and economic well-being. Their health suffered. Youth substance use, addiction and suicide became—and many say remain—a crisis. 

The report also found that Canada’s refusal to recognize Innu as “Aboriginal people” under Canadian law, and the government’s failure over a half century to provide the same level of services to Innu as it does to other First Nations, also had “serious consequences” for Innu. It recommended that Canada acknowledge its constitutional responsibility to Innu and immediately begin providing federal funding, programs, and services—even prior to creating First Nations bands and requiring individuals to be registered under the Indian Act.

The report further called on Canada to conclude agreements with the Innu on self-government and the devolution of programs and services, and to relocate the Mushuau Innu from Davis Inlet, as the Innu had requested.

A spokesperson for Crown-Indigenous Relations and Northern Affairs Canada told The Independent Thursday the federal government “welcomes” the report “and is working to address its findings.”

Canada “remain[s] committed to negotiations and we are making progress towards concluding a modern treaty,” they said in the written statement. “We will continue to work in good faith and partnership with the Labrador Innu on the path forward.”

Wrap treaty negotiations within three years, report tells federal government

Prior to Confederation, the Innu remained one of the last nomadic Indigenous peoples on the continent. They lived on the land, travelling in family groups to hunt, fish, forage and trade with other Indigenous groups—and, in recent centuries, with settlers. 

But after Confederation, despite not being recognized as Aboriginal people in Canadian law, they were forced into settlements where clergy and government employees held significant authority over their daily lives. Innu children were subjected to the horrors of residential schools as part of the colonial governments’ and churches’ efforts to assimilate Indigenous peoples. 

The federal government agreed in 1979 to enter into land claim negotiations with the Innu. In 1996, three years after the CHRC’s first report, Canada, Newfoundland, and the Innu signed a framework agreement for those negotiations. In 2011 the Innu signed an AIP with the provincial and federal governments for a comprehensive land claim. 

That AIP was one of three parts of the 2011 Tshash Petapen (“New Dawn” in English) Agreement, which also included redress for the harms done to Innu following the Upper Churchill Project’s flooding of their lands in what’s now known as the Smallwood Reservoir. It also included an IBA for the Lower Churchill Projects, which include Muskrat Falls and a third dam on the Churchill River at Gull Island, a traditional gathering place for Innu.

But the road to the 2011 deal happened amid ongoing injustices perpetrated by the federal and provincial governments, according to the CHRC reports.

A follow-up report published in 2002 concluded that Canada had made significant progress on the 1993 report’s five recommendations, most notably by formally acknowledging its constitutional responsibility to the Innu. But many of the government’s actions toward the Innu were inconsistent with the recommendations of the landmark 1996 Royal Commission on Aboriginal Peoples—particularly around education, language revitalization, and self-government.

The 2002 report implored the federal government to resume the land and self-government negotiations that had stalled, and to make significant progress within two years. It also urged Canada to provide “full and continuous funding” for initiatives that would “enhance health and education through the preservation of Innu language, traditional skills and culture.”

This week’s report marks the third CHRC-commissioned investigation into Canada’s treatment of Innu in Labrador and comes amid the “significant evolution of domestic and international human rights” since the earlier reports. In Canada, the Truth and Reconciliation Commission (TRC) and the National Inquiry into Missing and Murdered Indigenous Women and Girls (MMIWG) meticulously detailed a century and a half of historical—as well as ongoing—violence against Indigenous peoples which both bodies concluded amounts to genocide.

Donald McRae authored the 1993 report and co-authored the subsequent ones. On Monday he said that nearly three decades ago he stressed the “need to allow the Innu to have the opportunity, the resources and the freedom to take control of their own lives […] and yet we find after 26 years they’re still unable to do so.”

He said Canada “appears to have forgotten that for 50 years they deprived the Innu of what other First Nations were receiving. But that history, that deprivation, should have been front and centre in their thinking in relations with the Innu.”

McRae added that until the federal government negotiates a final treaty, “Canada cannot claim that it is respecting the human rights of the Innu.”

The new report evaluates Canada’s human rights track record with the Innu against the standard of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), and the recommendations of the TRC’s calls to action and the MMIWG Inquiry’s calls for justice.

In the new report, McRae and co-author Celeste McKay urge Canada to conclude treaty negotiations with the Innu within three years—and to abandon negotiating positions the authors say are “inconsistent with the fundamental obligation to promote a full realization of the rights of the Innu people,” McKay said Monday.

Feds must change negotiating positions with Innu: report

Innu Nation Deputy Grand Chief Mary Ann Nui. (Screencap.)

Specifically, the report’s authors and lawyers representing the Innu want Canada to abandon its negotiating position that federal funding for programs and services be clawed back as Innu own-source revenues from IBAs for projects like Voisey’s Bay increase.

John Olthius, a lawyer who has long represented the Innu Nation, says that in recent years most of the houses built in Sheshatshiu and Natuashish have been funded by own-source revenues. He said if the federal government claws back its funding of programs and services, “the Innu’s progress will be stalled [and] they will not be able to close the socioeconomic gap, which is so crucial for the future of the Innu.”

The report also repeats the earlier reports’ recommendation on tax exemptions and asks the federal government to drop its insistence that Innu would have to begin paying income tax and transaction taxes a short time after their land claim agreement is finalized.

Olthius said Monday that would be “fundamentally unfair because the Innu were denied this exemption for 50 years.” 

The CHRC is also calling on Canada not to insist that Indigenous peoples’ inherent right of self-government be contingent on entering agreements with the province or Canada that detail conditions for exercising those inherent rights. They further urge the federal and provincial governments “to ensure substantive equality in access to basic services and the essentials of life, such as healthcare, housing, education, policing and child and family services, including special measures to address and overcome the legacy of historic wrongs, such as the half century which the Innu were denied access to federal services and benefits under the Indian Act.”

Notably, the report also takes aim at Canada’s comprehensive claims policy, under which the Innu and other First Nations have long been expected to consent to the extinguishment of their inherent and pre-existing rights, as well as land title.

The report notes that the United Nations Human Rights Committee has condemned Canada’s effort to seek the extinguishment of Indigenous peoples’ inherent rights because that would be “incompatible with the fundamental principle that human rights are inherent and inalienable.”

A 1999 report from Survival International about Canada’s treatment of Innu in Labrador summarized the federal government’s rights extinguishment requirement in modern treaties as follows: “from the outset […] aboriginal negotiators know that Canada will not allow them the option of retaining their land: the only point at issue is the terms on which they part with it. There is also a rather insulting presumption that it is the original inhabitants of the land who are making a ‘claim’ on Canada, and not vice-versa.”

The new CHRC report calls on Canada to adopt a treaty negotiation policy with the Innu similar to that implemented in British Columbia in 2019, which was co-developed with Indigenous peoples and the province and “explicitly rejects any requirement for extinguishment ‘in form or result,’” the report says.

“Instead, the policy proposes to support agreements that are able ‘to evolve over time based on the co-existence of Crown and Indigenous governments and the ongoing process of reconciliation of pre-existing Indigenous sovereignty with assumed Crown sovereignty.’ Applying such approaches to negotiations with the Innu is not only appropriate, it is required by Canada’s human rights obligations.”

Economic benefits from Muskrat Falls intimately tied to Innu well-being 

On Monday, Olthius said the Innu have been at the negotiating table for “not just 30 years—it’s been pretty well one week a month for 30 years that the Innu have been at this table. And many Elders have passed on, so it’s absolutely important that this treaty get completed, but that it be completed based on the recommendations in this report about the positions that Canada has to abandon if the treaty is to be concluded based on Canada meeting its human rights obligations.”

In 2016 and 2017, well into the construction of the Muskrat Falls project, Innu elders publicly shared their concerns and pain over the destruction of Mishta-Shipu, also known as the Churchill River, and the Innu lands around the megadam. 

“Water is going to die. What’s going to happen to the animals? What’s going to happen to our medicine on the ground? And what’s going to happen to my people—young children?” Tshakuesh “Elizabeth” Penashue told The Independendent in May 2017. “They’re not going to be able to hunt anymore.”

By consenting to Muskrat Falls, the Innu made an enormous sacrifice in exchange for financial benefits that they need in order to escape the poverty imposed on them by Canada and the province.

“We have been at the treaty negotiation table for over 30 years,” Grand Chief Rich said Monday. “I want to sign a good treaty so that we can govern ourselves and control our own land and resources with adequate funding to deliver some levels of programs and services to Innu that other Canadians take for granted.”

Landry said the Innu and Canadian Human Rights Commission’s “collective hope is that the findings and the recommendations in these pages spear concrete action toward substantive equality for the Innu. Only then will Canada be able to say that it is starting to live up to its human rights obligations.”

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