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Chiefs want judicial review on changes to hydro plants

Ontario wants to boost output but not consult first
|Written By Jennifer Brown

The Anishinaabe Nation is seeking judicial review related to five Ontario hydro generation plants in northwestern Ontario, saying the province failed to consult with it about the impact proposed changes to the plants and their output would have on their way of life.

Scott Smith
Scott Smith says the Anishinaabe Nation is really looking for a negotiation with the province.

At a press conference in Toronto yesterday, three chiefs from the Anishinaabe Nation, Treaty 3, explained their concerns with the government’s failure to consult with them over the potential for adverse impact on their aboriginal and treaty harvesting rights in their traditional territories.

“It’s our client’s position that it’s extremely concerned that not only did the Ontario government fail to consult with the Anishinaabe Nation as represented by the Grand Council of Treaty 3, but the Crown went ahead and engaged in the conduct without even providing our client notice that it was contemplating engaging in such conduct,” says Scott Smith, associate with Gowlings Lafleur Henderson LLP in Toronto.

An application for judicial review was filed Sept. 1 with the Divisional Court of the Ontario Superior Court on behalf of all members of the Anishinaabe Nation in Treaty 3 against the Ontario minister of Energy and the Ontario Power Authority.

The judicial review is being initiated by Grand Council Treaty 3, Ogichidaakwe (Grand Chief) Diane Kelly of the Onigaming First Nation, Chief Lorraine Cobiness of the Ochiichagwe’babigo’ining First Nation, Chief Janice Henderson of the Mitaanjigamiing First Nation, Chief Kimberley Sandy-Kasprick of the Northwest Angle #33 First Nation, and Chief Earl Klyne of the Seine River First Nation.

In May 2009, former Ontario energy Minister George Smitherman issued a directive to the Ontario Power Authority directing it to develop the Hydroelectric Contract Initiative. The purpose was to develop a series of contracts that would provide for higher prices than what existing hydroelectric facilities were receiving on the market or spot price.

The OPA awarded a HCI contract to ACH Limited Partnership for the Calm Lake, Sturgeon Falls, Fort Frances, Kenora, and Norman generating stations, and consented to a change in control of ACH under its HCI Contract. ACH is owned by Calgary-based BluEarth Renewables Inc.

“Under the contract not only do they agree to pay a higher market price for a 20-year period but pay double the regular contract price if the owner-operator of the facility makes upgrades,” says Smith.

Smith says that the five generating stations have been operating in Treaty 3 for 80 to 90 years and on numerous occasions the grand council and first nations have made the impact of the stations to their lands known to the Crown.

“Changing how water is managed behind the dam could cause new impacts downstream and upstream of the dams,” says Smith. “There is a specific claims process where the government of Ontario is at the negotiating table with Treaty 3 nations to deal with the flooding impact these generating stations has caused to their individual reserves within the larger Treaty 3 territory.”

Ultimately, Smith says the Anishinaabe Nation is seeking a negotiating table with the Ontario Crown. “Their goal is to encourage and force the Ontario Crown to engage in a consultation process in good faith in order to determine the potential for the Crown conduct to cause adverse impact to their treaty rights and to determine what form of accommodation is requited to mitigate adverse impacts,” he says.

“The Supreme Court has been pretty clear that category of conduct triggers a new duty to consult and accommodate aboriginal peoples in Canada.”


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