The Innu of Pessamit will go to the polls on Sunday to decide whether or not to endorse the agreement reached with Hydro-Québec and the Government of Québec, which could settle once and for all the legal disputes that have been ongoing for years and allow for the development of energy projects that could then be carried out without litigation.
The stakes are high. The deal also known as the Aishkat Agreement, provides for the payment of more than $2.535 billion over 50 years, as well as other amounts to be determined, to the community of some 4,000 people located just under 60 km southwest of Baie-Comeau on the North Shore.
However, the 42-page document seeks to prevent the community from going to court to challenge future energy projects and opens its territory to projects by the state-owned utility—provisions that are sparking controversy within the community.
The agreement first addresses the issue of compensation for “existing infrastructure,” that is, the structures, buildings, and other facilities constructed over the years by Hydro-Québec across a vast territory ranging from 150 km wide along the coastline to 250 km inland and extending approximately 450 km deep—a territory that includes the Manicouagan reservoir. No fewer than 16 power plants and 13 dams are located within this vast territory.
Quebec and Hydro-Québec are each offering compensation for these past disruptions to the territory. In the case of the state-owned utility, compensation will amount to $25 million per year for the first four years ($100 million over four years), followed by $12 million per year, indexed annually at two per cent, for the next 46 years. According to our calculations, this will result in an additional $892 million, for a total of $992 million over 50 years.
For Québec, the compensation was set at nearly $632 million over 10 years, bringing the total compensation for existing projects to $1.624 billion. In return, as stated in the agreement, Pessamit “agrees, on behalf of the plaintiffs, to withdraw the Lawsuit (filed against Quebec and Hydro-Québec for developments carried out without its consent) in its entirety, permanently, and at no cost, with respect to Quebec and Hydro-Québec.”
Furthermore, the agreement states that, to settle the matter “in full,” “Pessamit agrees to (…) no longer seek declarations regarding ancestral rights, including ancestral title and treaty rights.” The agreement even stipulates that if a court were to order the Province of Quebec or Hydro-Québec to pay compensation or damages for existing developments, Pessamit “agrees not to assert any claims against the Province of Quebec or Hydro-Québec.”
At the same time, the Innu community agrees to allow Hydro-Québec to operate its facilities and not to file any new legal actions.
Pessamit must also suspend the legal action it has filed against the federal government while negotiations with Ottawa on the same issues of compensation for existing facilities get underway. The text states, however, that these provisions “do not limit Pessamit’s right to sue the Government of Canada for a breach of its fiduciary duties.”
As for future projects, Hydro-Québec plans to add a new dam, Bersimis-1-A, approximately 5 km upstream from Bersimis-1, which will draw its power from the same reservoir; to strengthen its transmission network with new 315- and 735-kV lines and substations; and finally, to develop wind power projects, the details of which have yet to be determined.
In the case of the Bersimis-1-A power plant, Hydro-Québec has committed to paying Pessamit $2.5 million per year per 1,000 MW of capacity, starting from the plant’s commissioning, indexed at two per cent annually for 50 years—meaning a minimum of $211.5 million over the term of the agreement. However, this plant could produce up to 2,000 MW, which would double that amount. The community could, however, opt for a financial stake in the project rather than the fixed amount, and the agreement does not specify the sums this approach could yield.
Compensation is also provided for the expansion of the transmission grid and wind power development, but here too, the amounts are not broken down and are based on calculations related to returns.
The compensation that the Government of Quebec will have to pay for all Hydro-Québec projects is specified in the agreement and will total at least $700 million over 50 years—at a rate of $14 million per year—but could be higher depending on the compensation formula chosen by the community.
Thus, compensation for existing facilities and future projects totals $1.332 billion for the Government of Quebec and $1.203 billion for Hydro-Québec, resulting in a total of $2.535 billion—which does not include certain elements yet to be calculated, notably those related to the transmission grid and wind power.
Although the text specifies from the outset that “this agreement is not a treaty and does not have the effect of conferring, recognizing, denying, or modifying any ancestral or treaty rights under section 35 of the Constitution Act, 1982,” several phrases raise questions within the community.
For example, the section on Hydro-Québec projects states that “the Parties reserve their respective positions regarding other energy projects, including their positions on whether or not Pessamit’s approval is required for a specific project”—a formulation that leaves room for doubt regarding the community’s ability to intervene in other potential projects.
–This report by La Presse Canadienne was translated by CityNews
