Earlier this year, AbitibiBowater sold their 75% stake of their 8 hydroelectric assets in Ontario for $300 million (Cdn).

Yesterday, the Grand Council Treaty #3 filed an application for a judicial review with the Ontario Court of Justice Divisional Court over the sale.

Who is the Grand Council Treaty #3?

Grand Council Treaty #3 is the historic government of the Anishinaabe Nation in Treaty 3 and is the political government for the 28 First Nations in the treaty area.

The area of Treaty 3 within the Province of Ontario can be described in general terms as the lands and waters in and about Lake of the Woods watershed, including the Rainy River and the lands below the height of land separating the Hudson Bay and Lake Winnipeg watershed.

The treaty area includes 26 First Nations in Northwestern Ontario and 2 First Nations in Manitoba.

What is the issue?

The issue is the Ontario Energy Minister’s direction to the Ontario Power Authority (OPA) to develop the Hydroelectric Contract Initiative (HCI) without Aboriginal consultation.

The 5 hydroelectric generating facilities in Treaty #3 territory are:

• Calm Lake
• Sturgeon Falls
• Fort Frances
• Kenora
• Norman

(see map showing the Treaty 3 territory and the location of the power generating stations)

The Grand Council Treaty #3 take issue with the Province of Ontario (as represented by the Ontario Ministry of Energy) and the Ontario Power Authority for failure to perform their “duty to consult” with the Anishinaabe Nation in good faith and a duty to seek reasonable accommodation between their Aboriginal rights and interests and Crown interests prior to engaging in the Crown conduct.

Treaty 3 Ogichidaakwe (Grand Chief) Diane Kelly contends, “The Province and the OPA were aware of the Anishinaabe Nation’s Aboriginal and Treaty Rights. They also knew that operations of the ACH Generating Stations and related dams had caused damage. It was reasonable to expect that terms of the HCI agreements would lead to new and potentially increased damages, such as more deleterious flooding related impacts on Lake Sturgeon (listed by the Committee on the Status of Endangered Wildlife in Canada (COSEWIC) and on a traditional staple of the Anishinaabe culture, Manomin (commonly called Wild rice, Zizania palustris)

Chief Janice Henderson of the Mitaanjigamiing First Nation stated, “The impact of dam operations and expansion on our wild rice, fishing, and trapping is of significant importance to the Anishinaabe Nation in Treaty 3. We feel we are a crucial period in our history and must stand up and protect our rights, claims and interests to govern, manage and ensure the sustainability of the traditional practice of ricing within all Treaty 3 communities. Especially, within the Lake of the Woods and Rainy Lake watersheds.”

Chief Earl Klyne of the Seine River First Nation outlined how, “On May 27, 2011 Abitibi’s dams in Treaty 3 were sold without meaningful consultation with the Anishinaabe Nation in Treaty 3, or any Crown efforts to protect, accommodate or compensate Treaty 3 Anishinaabe communities for new impacts caused by the sale of the dams made possible by the HCI contract.” He went on to explain, “Treaty 3 communities have become more and more difficult to administer and manage, in part because of the expense of home heating and electricity. This situation exists despite there being large hydro-electric generating dams within Treaty 3 territory.”

Grand Chief Kelly observed, “We are very concerned that the Minister of Energy and the OPA intervened on behalf of the Abitibi dams to cause new impacts to our rights and interests. The government action should not have occurred without consulting us. The HCI contract set the stage for new ownership and new impacts from these dams. She concluded by saying, “The Minister of Energy acted dishonorably by ignoring our claims, rights and inherent jurisdiction. This is why we have retained lawyers, David Estrin and Scott Smith of Gowlings and are seeking the judicial review of the decisions and actions of the Minister of Energy and the OPA at the Ontario Divisional Court in this matter.”

Who owns the hydroelectric dams now?

Calgary based BluEarth Renewables Inc. announced it had acquired ACH Limited Partnership stocks in May 2011. Previously owned by AbitibiBowater and the Caisse de depot et placement du Quebec, the ACH suite of dams is eight hydroelectric plants (five in Treaty 3 territory) that supply a total capacity of 131 megawatts in Ontario. These plants have approximately 19 years remaining in a 20-year power purchase agreement with the Ontario Power Authority, and will generate long-term stable cash flows for BluEarth.

Source:
Judicial Review Related to Five Hydro Generating Plants (Grand Council of Treaty #3)