Introduction
On February 15, the Government of Québec ("Québec") and the Innu of Pessamit concluded a framework agreement regarding the territory claimed by the Innu of Pessamit ("Memorandum of Understanding"). Hydro-Québec intervened in the Memorandum of Understanding.
The purpose of the Memorandum of Understanding is to open a dialogue to resolve outstanding disputes between the parties, to establish a new nation-to-nation relationship1 and to provide a framework for the negotiation and conclusion of an agreement between the parties for the social, economic and community development of Nitassinan, as set out below (the "Territory" and the "Final Agreement").
Commitments
The Final Agreement will provide for the development of the Territory in respect of three sectors of activity: (1) energy development, (2) mining development and (3) forestry. For each of these sectors, the Final Agreement shall cover the following elements:
- Energy development: developing structures and facilities operated by Hydro-Québec and other developers in the Territory,2 implementing a consultation process with the Innu community of Pessamit for new energy development projects,3 and implementing accommodation measures benefiting the Innu of Pessamit.4
- Mining development: the parties will negotiate a consultation process to increase the involvement of the Innu of Pessamit in mining development5 and to promote their participation in prospecting and mineral exploration activities, awareness-raising activities on the mining sector and support for Indigenous training and entrepreneurship in the mining sector.6
- Forest harvesting: implementing financial measures to support and promote the participation and consultation of the Innu of Pessamit in the management and planning of forest development activities on the Territory,7 as well as negotiating the terms for the settlement of forest harvesting disputes in the Territory.8
The Memorandum of Understanding provides for a one-year period to enter into the Final Agreement, unless otherwise agreed between the parties. Given the scope of the issues to be negotiated, we expect negotiations for a Final Agreement to continue for the next few years. According to statements made by the Innu of Pessamit representatives, the Memorandum of Understanding should define the relationship between the two nations for the years to come.9
Interim Measures
Pending signature of the Final Agreement, the Memorandum of Understanding provides for the interim measures that follow.
Hydro-Québec has agreed to suspend the applications for authorization filed on October 14, 2020, with regard to operating the Manicouagan Reservoir above the 355.95-metre mark to the 359.66-metre mark. The suspension will be for a period of twenty-four (24) months from the signing of the Memorandum of Understanding. Hydro-Québec will operate the Manicouagan Reservoir under a temporary operating limit set at a level of 350 metres for a period of twelve (12) months.10
Québec has agreed to pay the Innu of Pessamit an amount of $45M11 for the social and economic development of their community.12
Finally, the Memorandum of Understanding has suspended, for the duration of the negotiations, the "Recours Bets 1" lawsuit,13 which was initiated by the Innu of Pessamit against Hydro-Québec for the flooding of their ancestral territory by hydroelectric dams. This is namely because an out-of-court settlement of this dispute will be sought in the Final Agreement.14
Conclusion and Anticipated Impacts for Developers
As part of the implementation of the Memorandum of Understanding and with regard to any mining or forestry and energy development projects in the Territory, developers will be encouraged to establish partnerships with the Innu of Pessamit that are similar to the relationship that currently exists between developers and the Québec Cree.15
The Memorandum of Understanding provides that the relationship between developers and the Innu of Pessamit will seek to establish business partnerships, the sharing of economic benefits and spin-offs in favour of the Innu of Pessamit16 and, for energy development projects, the hiring and training of community members, measures relating to the awarding of contracts arising from hydroelectric development projects and the implementation of mitigation measures.17
Where applicable, and subject to the applicable legal framework, energy project developers will also be required to contribute financially to the costs of accommodation measures and monitoring.18
The Memorandum of Understanding and Final Agreement are likely to bring significant changes to project developments in the Territory.
We will be monitoring developments on this matter.
Footnotes
1. Recitals of the Memorandum of Understanding.
2. Section 4.1 of the Memorandum of Understanding.
3. Subsection 4.2.2 of the Memorandum of Understanding.
4. Subsection 4.2.4 of the Memorandum of Understanding.
5. Section 5.2 of the Memorandum of Understanding.
6. Section 5.5 of the Memorandum of Understanding.
7. Section 6.1 of the Memorandum of Understanding.
8. Section 6.5 of the Memorandum of Understanding.
9. CBC – Pessamit to hold referendum after signing of 'historic' $45M agreement with Quebec, available here.
10. Subsection 11.1.1 of the Memorandum of Understanding.
11. Subsection 11.2.1 of the Memorandum of Understanding.
12. Subsection 11.2.2 of the Memorandum of Understanding.
13. Subsection 11.4.1 of the Memorandum of Understanding.
14. Section 4.1 of the Memorandum of Understanding.
15. Subsection 11.5.1 and 1.1.7 of the Memorandum of Understanding.
16. Subsection 1.1.7 of the Memorandum of Understanding.
17. Subsection 4.2.5 of the Memorandum of Understanding.
18. Subsection 4.2.4 of the Memorandum of Understanding.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
