Problem

Here is the problem for the 2022 moot.

Kawaskimhon Statement of Facts 2022

Note: the high voltage line project discussed below is imaginary, as are the positions of the parties and the proposed negotiation. Some facts and claims may be based on real situations. However, participants must not contact members or representatives of the communities involved.

In order to secure its system and increase its export capacity, Hydro-Québec wants to build a new high voltage transmission line between the Radisson generating station located on the Grande Rivière east of James Bay and the Jacques-Cartier station located west of Québec City (hereinafter, the “future line”). This line’s route represents a sort of diagonal in a southeastern direction. It crosses forests and lakes where there are no existing high voltage lines. It does not skirt those already in existence.

More precisely, the future line first crosses Eeyou Istchee (traditional Cree Nation lands). In 1975, after consulting with the various communities of the Cree Nation, the Grand Council of the Crees signed the James Bay and Northern Quebec Agreement (JBNQA) with seven other partners, including the Government of Canada, the Government of Quebec and Hydro-Québec. A large part of Eeyou Istchee is located in the territory covered by the JBNQA (hereinafter the “JBNQA Territory”; see attached map).

Prior to obtaining authorizations from the Government of Quebec and the National Energy Board, and in compliance with the JBNQA, the construction project for the future line was presented to the Environmental and Social Impact Review Committee (COMEX). This is a joint Cree-Government of Quebec committee. The COMEX determines the conditions under which a project may be carried out, specifying, if necessary, the appropriate preventive or remedial measures (see Section 22 of the JBNQA).

On November 30, 2021, the Assembly of the Eeyou People succeeded to all rights and obligations of the Grand Council of the Crees and the Cree Nation Government. This change was approved by all relevant authorities under Eeyou law, Canadian law and Quebec law. The relevant legal documents are not available and cannot be challenged during the Kawaskimhon Moot. As in the past, the Eeeyou People's Assembly is led by a Grand Chief, a Deputy Grand Chief, the Chief of each Eeyou community, and a representative elected by each community.

Even if the question is debated by its members, the Assembly of the Eeyou People is a priori in favour of the future line because it will provide the Nation with royalties from Hydro-Quebec, and create jobs or business revenues during the construction work.

Further South, the future line crosses the northernmost part of Nitaskinan, the traditional territory of the Atikamekw, notably that of the Nimepiranan community, part of which territory overlaps with the JBNQA. Nimepiranan is not a signatory to the JBNQA and is subject to the Indian Act (RSC, c. I-5). The reserve where its members live is slightly South of the JBNQA Territory, in the Gouin Reservoir area (see the highlighted name on the attached map). The traditional hunting and fishing territories of fifteen of its families are primarily within the JBNQA Territory, in the overlap area. The future line would be built in this area. Further East, the proposed route leaves the JBNQA and Nitaskinan Territory.

Historically, the construction of the La Loutre dam in 1917 was followed by a displacement of the Nimepiranan community. New residences were not built until 1925, and only after arduous negotiations. In the hunting territories that overlap the JBNQA territory, native burial grounds were flooded at that time. The future line passes over these sites, and transmission towers could be erected there.

According to the Government of Québec and the Government of Canada, all rights that Aboriginal peoples may have held in respect of the JBNQA Territory have been extinguished, whether or not their holders signed the JBNQA (see section 2.6 JBNQA and the James Bay and Northern Québec Native Claims Settlement Act, S.C. 1976-77, c. 32, s. 3 (3)). However, the Government of Québec has undertaken to negotiate with the non-signatories “any claims they may have in respect of the Territory” (s. 2.14 JBNQA). On the other hand, nothing in this section “affects the obligations, if any, that Canada may have with respect to the claims of such aboriginal persons in relation to the Territory”.

At this point, Nimepiranan opposes the line’s construction without its consent. It has never waived its rights and has always opposed the extinguishment clause in the JBNQA. In 2014, the Atikamekw Nation Council, of which it is deemed a member for the purposes of the Kawskimhon Moot, adopted a declaration of sovereignty (https://www.atikamekwsipi.com/public/images/wbr/uploads/publication/IMG_6175.JPG; for an unofficial translation, see https://wtfspvm.wordpress.com/2014/09/11/traduction-anglaise-de-la-declaration-de-souverainete-datikamekw-nehirowisiw/ ). Nimepiranan wants to obtain recognition of the Atikamekw governance of Nitaskinan or, at least, that it not be diminished. In this perspective, the governments of Canada and Quebec must obtain its consent before approving the project.

The Assembly of the Eeyou People demands to be involved in the negotiations of any part of the JBNQA territory that is contiguous to Eeyou Istchee to ensure that its rights and interests are respected.

A meeting has been called for March 18 and 19, 2022, to resolve these difficulties and attempt to reach an agreement in principle (MOA) that would outline a future agreement or convention. The discussions shall not include the portion of the future line outside the JBNQA Territory.

Negotiating Parties:

The guidelines below constitute the initial terms of reference for each team. However, if an agreement appears to be in the offing, a team may stray from these initial terms and agree to proposals that it finds acceptable, given the objectives of the party it represents.

1) Nimepiranan demands to participate in the negotiations concerning the construction of the future line. In the first place, it hopes to convince the Canadian and Quebec governments to correct the injustice committed at the time of the conclusion of the JBNQA and the adoption of the 1977 Federal law, by obtaining recognition of the Atikamekw governance of Nitaskinan. While this could be very advantageous, it is not mandatory the Constitution of Canada protect this right. In the second place, as its economic resources are limited, Nimepiranan would be willing to consent to the project in exchange for revenue sharing and re-routing.

2) The Assembly of the Eeyou People is in favour of recognizing the Atikamekw governance of Nitaskinan, so that the future line project has a good chance of being approved. However, if an agreement is reached with Nimepiranan, the Assembly of the Eeyou People considers that the financial benefits received by this community should be less important than those granted to the Cree Nation.

3) Insofar as it does not impact the project’s profitability, Hydro-Québec is in favour of granting monetary compensation and wishes to avoid as much as possible a significant relocation of the route, as this would increase the construction cost by 20%. It wishes to avoid recognizing Nimepiranan's territorial rights, except insofar as these provisions would be similar to those found in the JBNQA. Approval of the future line is, however, a priority for Hydro-Québec.

4) The Quebec government has traditionally been opposed to recognizing the territorial rights of non-signatory nations to the JBNQA. However, the construction of the future line is one of its highest priorities, and it wishes above all to avoid media confrontations during construction of the line, in court, or on the international scene.

5) The Government of Canada wishes to find a formula acceptable to all parties. It is prepared to consider repealing or amending the relevant provisions of the 1977 Act, provided that an agreement is reached that clearly defines the rights and obligations of each party through negotiations with all signatories to the JBNQA. However, this precedent must not allow for the reopening of other modern treaties and must be consistent with section 35 of the Constitution Act, 1982.

6) The Assembly of First Nations Quebec-Labrador (AFNQL) comprises Chiefs from 43 communities located in Quebec and Labrador. It represents ten nations known as (according to its website) Abenaki, Algonquin, Atikamekw, Cree, Huron-Wendat, Maliseet, Mi'gmaq, Mohawk, Innu and Naskapi. The issue of the extinguishment of Aboriginal rights by the JBNQA is relevant for other nations than the Atikamekw (Algonquin, Innu). A negotiated solution should solve all such problems. In addition, the AQNPL has been demanding for a long time that the Quebec government recognize the territorial rights of the Aboriginals on the totality of their unceded traditional lands.

Clarifications

COMEX has not rendered any decision.

The potential role of the National Energy Board is mentioned because the new line could be linked to a project whose purpose is to increase the capacity of Quebec to export electricity, but this will come later. This does not mean there is no need to obtain other authorizations.

It has come to my attention that there is a discrepancy between the French and the English version of the Statement of Facts (despite the best efforts of the people who revised the translation).

In the description of Nimepiranan, one reads:

"Dans un deuxième temps, Nimepiranan pourrait donner son consentement au projet moyennant un partage des revenus et un réaménagement du tracé, car ses ressources économiques sont limitées.

Translated as

"In the second place, as its economic resources are limited, Nimepiranan would be willing to consent to the project in exchange for revenue sharing and re-routing."

A more accurate translation of "pourrait donner son consentement" would be: "might be willing to consent" or "would be open to consenting".

In other words, there is no assumption that Nimepiranan is eager to consent to the project or that it has already formed an opinion in this regard.

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This content has been updated on 17 February 2022 at 12 h 35 min.