Aboriginal Peoples in NB not Consulted on Proposed Sale of NB Power to Québec

The Premier of New Brunswick (NB) announced in 2009 that NB had signed a Memorandum of Understanding (MOU) with Hydro-Québec that would involve the transfer/sale of NB Power and/or its assets to Québec (or part thereof). Premier Shawn Graham explained that this is necessary for all New Brunswickers: “By entering into this agreement, New Brunswick is securing access to affordable, clean hydroelectricity, which will make the province’s economy more competitive and provide a cleaner environment for future generations of New Brunswickers.” The obvious question being: do New Brunswickers feel the same way? It is the province’s goal to enter into a legal, binding agreement with Hydro-Québec by March 31, 2010. I fail to see how the Premier could possibly finalize an agreement with Hydro-Québec by March 31, 2010, if he also plans on informing Aboriginal communities about how this deal might impact their Aboriginal and treaty rights, including their land claims and also engaging in proper consultations with them. It is not as if he hasn’t been given due notice that there are unresolved land claims in New Brunswick. Both on and off-reserve Mi’kmaq, Maliseet and Passamaquoddy peoples have informed NB about their land claims and that they expect to be consulted on decisions made by NB that could impact those claims and their Aboriginal and treaty rights. Firstly, NB signed a bilateral agreement with the Mi’kmaq and Maliseet Chiefs that had as its goal (in part) to: “facilitate communication and consultation between First Nations Leaders and their constituents and between the Province and its citizens” on a wide variety of issues. The very first item listed for discussion and consultation is “Land and Resources”. Given the reaction of the NB Chiefs in the recent media reports, it does not appear as if NB has lived up to its part of the deal. Secondly, the New Brunswick Aboriginal Peoples (NBAPC) which represents Mi’kmaq, Maliseet and Passamaquoddy people living off-reserve in NB was not included in the above-mentioned bilateral agreement. However, that does not absolve NB of its legal obligations to inform the off-reserve Aboriginal peoples represented by the NBAPC of the implications of this proposed deal, consult with them and accommodate their interests and concerns. As this was not done, Frank Palmater, a Director of the NBAPC sent a letter to the Premier in November 2009 reminding him of their outstanding land claim and NB’s legal obligation to consult with them before any decisions are made with regard to NB Power and its assets. It reads in part: ” As you know, the Mi’kmaq, Maliseet and Passamaquoddy Peoples in New Brunswick have never surrendered or ceded their traditional territories. They did not sign treaties which gave up rights to their lands, nor have they since settled a comprehensive land claim ceding their Aboriginal and treaty rights to their land in exchange for anything. In fact, as you also know, the NBAPC and other Aboriginal groups have received funding in the past to complete land claims research with a view to submitting a formal claim. All that was missing was the province of New Brunswick’s commitment to negotiate. I refer you to the book, Our Land: The Maritimes: The Basis of the Indian Claim in the Maritime Provinces of Canada, edited by former President of the NBAPC, Gary Gould and his collaborator, Allan Semple. The book publically asserted both a historical and legal basis of Aboriginal title in New Brunswick. The NBAPC has also advocated on behalf of its members with regards to their claims to Aboriginal title in New Brunswick. The fact that the province of New Brunswick has ignored our claims does not mean that we have not made those claims and maintain them. As you are aware, there are numerous legal cases that have been heard at the Supreme Court of Canada relating to fiduciary duty, the honour of the Crown and the duty to consult and accommodate with regards to Aboriginal peoples and their interests. …This duty to consult and accommodate applies regardless of whether our Aboriginal title right has been confirmed in court of law. The duty is triggered when the province of New Brunswick has “real or constructive knowledge” of the “potential existence” of the Aboriginal right or title claimed. Therefore, the province of New Brunswick must not only act honourably in all of its dealings with Aboriginal peoples, which includes the NBAPC, it must also consider both their historical and future relationship with Aboriginal peoples. This relationship has as its base, our treaties and our traditional lands upon which we currently share with the province. … Practically speaking, this means that our Aboriginal title to our traditional territories in New Brunswick act as a “burden” to the province’s title and, as such, it cannot be sold, traded and/or otherwise dealt with unless and until our underlying Aboriginal title claims have been addressed. In other words, you do not have the right to even consider the sale of NB Power and/or its assets to another province because NB Power and its assets sit on lands which are claimed by the Mi’kmaq, Maliseet and Passamaquoddy peoples in New Brunswick and the sale, trade or loan of NB Power and/or its assets can and will have a negative impact on our land claim once it is finally addressed. Moreover, it is also our understanding that there are various specific land claims relating to NB Power and/or its assets that have yet to be addressed. … Therefore, this letter will: (1) Re-assert our long-standing claim to Aboriginal title in the lands traditionally used and/or occupied by the Mi’kmaq, Maliseet and Passamaquoddy in New Brunswick, a right which is protected by section 35 of the Constitution Act, 1982; (2) Remind the Province of New Brunswick of its legal and moral obligations to act honourably and in good faith and to both consult with us and accommodate our interests with regards to the proposed sale of NB Power and/or its assets; and (3) Request that the Province of New Brunswick meet with us immediately to establish a process to finally address our long-outstanding Aboriginal title claim as well as our treaty and other rights in New Brunswick, before considering the sale of NB Power and/or its assets.” The Premier promptly responded to this letter on December 7, 2009 by indicating that no binding agreement had yet been signed and that NB, would in fact, be meeting with the NBAPC on this issue within the “next few months”. When the NBAPC failed to hear from the Premier, Frank Palmater sent another letter reminding him of the looming deadline and the province’s legal obligations to consult. Now, the Chiefs of New Brunswick are also pointing out the lack of consultation. For the benefit of all New Brunswickers: Aboriginal and non-Aboriginal, the Premier ought to slow down this run-away train and avoid a complete disaster (legally and politically) and take time to: (1) properly inform communities about the specific implications of this proposed deal; (2) consult in an appropriate manner; and (3) accommodate the interests, rights and concerns raised during consultations. Our land and resources are worth at least the time it takes to have this discussion.