Grand Council Treaty #3 has filed for a judicial review of the province’s Hydroelectric Contract Initiative [HCI] program and the sale of the local Fort Frances dam, citing a failure to consult with First Nation communities.
“The [province], they have a responsibility, they have a duty, to act honourably when it comes to the potential infringement of aboriginal treaty rights,” Treaty #3 Ogichidaakwe (Grand Chief) Diane Kelly said about the application for review, which was filed last Thursday with the Divisional Court of the Ontario Superior Court of Justice against the Province of Ontario—specifically the minister of energy and the Ontario Power Authority (OPA).
Treaty #3 communities have been concerned about flooding since the dams have been built, she noted, and the impact this flooding has had on treaty harvesting rights—especially that of wild rice and the sturgeon fisheries.
“With the recent sale of the dam and the hydro site, the HCI program, we believe there’s the potential to have increased flooding which will have an impact on [these rights],” Grand Chief Kelly argued.
She added that within the HCI program, there seems to be built-in incentives to the new operators to have increased flooding—something that will be a further detriment to the communities’ rights.
The Ontario government will study the application materials, stated Ministry of Energy spokesman Paul Gerard.
“Ontario takes the duty to consult First Nations very seriously, and has processes in place to ensure consultation and accommodation when hydroelectric projects potentially affect Aboriginal communities,” he noted.
But since the matter is now before the courts, Gerard said the government has no other comment at this time.
Treaty #3’s application calls for a judicial review of the “failure” of the province to consult with First Nations in the Treaty #3 area, specifically concerning:
•the development of the HCI program;
•the OPA’s development and implementation of the HCI program;
•the OPA’s decision to enter into an HCI contract with ACH Limited Partnership for existing hydroelectric facilities (including Calm Lake, Sturgeon Falls, Fort Frances, Kenora, and Norman Generating Stations) in the Treaty #3 territory; and
•the OPA’s decision to provide written consent to a change in control of the ACH under the ACH’s HCI contract.
The application also contends that upon learning about the pending sale by AbitibiBowater of the controlling interest in ACH, Treaty #3 requested that the energy minister direct the OPA to ensure proper consultation and accommodation with First Nations’ communities—but that the Crown asserted that in this situation there was no duty consult.
The application asks for a declaration that the energy minister and OPA had a duty to consult and seek reasonable accommodations for these rights, and that the energy minister and OPA breached these duties.
It also requests an order “quashing the OPA’s decision to enter into a HCI contract with ACH; or an order “prohibiting the respondents or either of them from making any decisions or engaging in any conduct under ACH’s HCI contract until the parties agree or this court has determined that required consultation and accommodation has occurred.”
As well, the application asks for an order quashing the OPA’s decision to provide written consent to a change in control of ACH under ACH’s HCI contract; or alternatively an order suspending the OPA’s decision until consultation and accommodation has occurred.
“[We] hope that the Crown would act honourably and discuss with us what their intentions are, and provide us with the information so that we could have a real discussion around consultation and accommodation of our rights,” said Grand Chief Kelly, stressing the impact the change in ownership potentially has on harvesting rights.
“We used to be able to survive on wild rice and sturgeon fisheries,” she explained. “We used to sustain ourselves just from the land, at one point in time.
“That’s no longer possible.
“Even back in the ’70s, we were able to harvest good wild rice crops and we haven’t been able to do that for a number of years now,” Grand Chief Kelly noted.
“I happen to think that Treaty #3 has a good case,” said Kenora-Rainy River MPP Howard Hampton, noting that the last 10 Supreme Court of Canada decisions have “said very clearly” that when governments pass legislation, regulations, or implement policies—and the rights or interests of First Nations may be affected—the government agency is required by law to consult with these First Nations and accommodate these rights and interests.
“And I don’t think there’s any evidence on the record that the OPA did that, and that will be the issue in the judicial review,” he explained.
“This is not a trial of an issue,” Hampton added. “It’s a judicial review [that] basically asks this question: Did this government entity, the OPA, did they act according to law?”
Hampton said it’s too early in the process to tell what the local impact this judicial review would have—but also stressed he disagrees with what the government is doing under the HCI.
In the past, electricity from four power dams—two on the Seine River and two on the Winnipeg River—was used to generate jobs, employment, and economic activity here, he remarked.
But this has changed.
“[A]ccording to the government’s plan, [electricity] will simply be exported and will generate next-to-no jobs locally and no economic activity locally,” he argued, noting this energy being generated is some of the lowest-cost electricity “on the planet.”
“Part of what the First Nations’ are [arguing] is they’d like to see that electricity used here, to generate benefits, economic social and environmental benefit both native and non-native who live here,” Hampton said.
“What the government’s really doing is simply expropriating a very valuable natural resource and shipping the benefits off to southern Ontario and the United States,” he charged.
While the hydroelectric dams are creating cheap electricity, this benefit isn’t being reaped locally, agreed Chief Kelly.
There “really needs to be a close look at” the hydro rates for those in Northwestern Ontario, she said, particularly those in Treaty #3 area that are impacted by these dams.
“What is the rate that they’re paying and is that a fair market rate?” she asked.
“Our people in our communities—our lands have been flooded and our rights have impacted, and yet we pay some of the highest hydro bills of probably anybody in Ontario,” Grand Chief Kelly added.
“It’s almost like we’re subsidizing the hydro rates by the impact to our rights.
“To me that’s a serious concern.”
Chief Kelly said she gets calls all the time from community members and leadership saying the hydro rates are “astronomical.”
“I had a call the other day from somebody that had a $1,200 hydro bill for one month over the summer,” she noted.
“I’ve had calls from people that have just had astronomical hydro rates and sometimes it comes down to the question of ‘Do I pay my hydro bill or do I make my car payment?’ When hydro rates are that extensive, that’s an extreme concern.”
While Treaty #3 has filed the application on behalf of all members of the Treaty #3 area, Grand Chief Kelly, along with Chief Lorraine Cobiness, Chief Janice Henderson, Chief Kimberly Sandy-Kasprick, and Chief Earl Klyne also have signed on to application as individual applicants.
ACH Limited currently is owned by Calgary-based BluEarth Renewables Inc.