Agreement between the Innu and Rio Tinto-IOC: when corporations make the law

Unconditional support for mining projects, the impossibility of opposing inadequate consultations and derisory financial compensation — Innu band councils from the North Shore elected in the turmoil signed a historic agreement with the multinational Rio Tinto-IOC in December 2020, to the dismay of several members of their communities. In Matimekush-Lac John, the population was even promised $2,000 per person to vote in favor of the project.

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Normand Pilot, Innu from Uashat mak Mani-utenam, tells us his story with his voice, bound by emotion. This is not only his story, but the story of a legal process that has affected his community for over two years. In June 2019, he ran for the position of councillor in the band council elections for Antonio Fontaine's team. These elections did not bring his team to power, but that of the outgoing leader, Mike McKenzie. Mr. Pilot and other defeated candidates, including Bastien Roland Thirnish, who was running for the leadership, say they quickly noticed anomalies in the electoral process. “They started celebrating at 10 pm, while the rest of us were still waiting for the results at 1 am”, noted Mr. Pilot on election night.

In the days following the vote, a team made up of fifteen citizens and defeated candidates worked hard to gather the evidence that, for more than two years now, has supported the lawsuit that calls into question the council election. According to documents submitted to the court by Mr. Pilot's team and that La Converse was able to consult, advance poll boxes were allegedly not sealed in a regulatory manner and were left unattended. Moreover, ballot papers were allegedly falsified, and some votes were not counted under the supervision of representatives of both parties. It also states that “several people were added to the electoral list even though they were not eligible to vote.” In the eyes of Mr. Pilot, all these elements confirm that there was electoral fraud during the election on 26 June 2019.

A few months after the elections, while the council of Uashat mak Mani-utenam was still in turmoil due to the questioning of the legitimacy of the procedure that brought it to power, Chief Mike McKenzie and his team, as well as the board of Matimekush-Lac John, reached a historic agreement with the Iron Ore Company of Canada (IOC). This mining company has operated iron ore extraction sites on the traditional territory of the Innu for over half a century. The agreement made it possible to stifle a $900 million lawsuit filed by the Innu against IOC for damage caused to the territory and guarantees the supply of iron ore for the next 50 years, representing hundreds of millions of tons. The scope of the agreement is difficult to grasp and has a direct impact on several aspects of Aboriginal life and culture, including land, consent, and the economy. For Mr. Pilot, who is openly opposed to this agreement, especially when the legitimacy of the current council is being questioned, the signatories had “all the rights [of his community] in their hands”.

The agreement, entitled Ussinyun, which means “renewal” in Innu, was ratified in December 2020 and is presented as a way to promote reconciliation. But according to some Innu, it is rather the final nail in the coffin of the cultural heritage linked to their traditional territory, Nitassinan.

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Lack of transparency

“[The population] doesn't know what's in there. Is it really good for our community and future generations? Well, I don't know that,” wonders Martial Pinette about the agreement his community is a co-signatory to. He has lived in Uashat mak Mani-utenam for a few years and is from Matimekush-Lac John, the other community that signed the agreement with IOC. As in Uashat mak Mani-utenam, the election in June 2019 garnered a lot of attention: quickly, the results that named Réal McKenzie as leader were contested. An appeals committee finally recognized the legitimacy of his election in September 2020 and, three months later, he put his signature on the document. Martial Pinette would have liked to see the agreement with his own eyes to know what was in it, but that was not possible. “The council told me: “It's confidential.” I said that I have the right to consult this document, but they wanted me to go to [Matimekush-Lac John]. It was not possible for me; I am in Sept-Îles for work, he explains. Even today, I have a lot of questions to ask.” George McKenzie, an Innu from Uashat mak Mani-utenam, participated in the consultations that took place in his community.

But as for Mr. Pinette, his questions remained unanswered. He says that it was difficult to get an accurate picture of the talks that took place. “The content of the consultation comes down to four pages. I think it's very summary, we were far from all of its content,” he said. In the hope of answering the questions of the many Innu who were dissatisfied with the opacity of the agreement between their band councils and IOC, La Converse obtained a confidential copy of the agreement, without its annexes. We submitted it to an expert in Aboriginal law to better understand the articles that make up these 40 pages.

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‍“A blank check”

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For Me Nawel Hamidi, these 40 pages of the agreement are full of clauses that ignore Canadian case law. “The abuse goes so far, it does not make good sense,” says the lawyer involved in several cases defending indigenous rights, a doctoral student and a member of the Center for Human Rights at the University of Essex, in England. “Not only is a $1 billion lawsuit initiated by the councils of Band of Matimekush-Lac John and Ushat Mak Mani-utenam for the destruction of territories on Nitassinan (Innu territory no. ceded), but in addition [IOC] unilaterally gives itself the right to expand its infrastructures on the territory, to pursue extractivism where the company decides and with the requirement of being supported by community members in applying for operating permits. It is an agreement that takes First Peoples back almost a century in terms of respecting their ancestral rights and self-determination,” says Me Hamidi, outraged by what she refers to as an example of the fact that it is the “international corporations that are kings and masters” on indigenous territories.

Canadian justice recognizes the importance of consent when it comes to industrial activities on Aboriginal territory. In 2004, the Haida decision of the Supreme Court of Canada established the obligation to consult indigenous communities affected by development projects. However, one of the clauses of the agreement Ussinyun prevents the Innu “from alleging a failure on the part of governments to satisfactorily fulfill their obligation to consult them.” In other words, the Innu of Matimekush-Lac John and Uashat mak Mani-utenam cannot complain about an inadequate consultative process. “There is a problem. It goes against Canadian law, against current case law,” the lawyer is once again outraged. And it doesn't stop there.Me Hamidi points out that one of the articles of the agreement forces the Innu to “fully support” all requests for mineral titles, permits or authorizations made by IOC from governments after the signing of the agreement. This clause goes against the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which guarantees them free, prior and informed consent when decisions concerning their territory are taken. In addition, the agreement agrees that the signatories release IOC from any claims for damages or losses that they “can or could assert” against IOC. “They are exploiting the land, when they do not even have the right to occupy it in this way and the land claims have not even been settled. It's really a problem,” says Me Hamidi.

A well known scenario

As for the lack of transparency that Mr. Pinette faced when he wanted to consult the agreement remotely, it is not unknown to Me Hamidi. She explains that “information is difficult to circulate in band councils” and that the agreement signed between the Innu and IOC is no exception. It is forbidden to take a photo of it or to have a digital copy of it, and only certain council employees can access it. “Several members tried to have a signed copy of the agreement, but the band councils do not want to give a signed copy”, continues Me Hamidi. According to her, this type of situation is recurrent in many communities in Canada. “When you try to get copies of agreements, they don't want to. They say it's confidential,” she said. She explains this opacity by the fact that appendices, which sometimes include additional monetary clauses, are added to the signed version. “We often find ourselves analyzing draft agreements,” she laments. For the lawyer, the territory over which the agreement applies is confusingly vague. “It may be deliberately unclear: on the one hand, it is specified that “the operating area is around Labrador City within a radius of 40 km”, while on the other hand, it is said: “However, this agreement includes any future infrastructure and any future projects.” [...] It is a consent to exploit [traditional Innu territory] when and Where does the corporation want it? ”, she asks. Indeed, article 3.11 states that it is possible for IOC to carry out exploration work outside the 40 km zone of interest, provided that it is not in a protected area for its “significant cultural character”. While IOC is committed to consulting with the Innu in order to address their concerns, under the agreement, the Innu have no recourse if they consider the consultation to be inadequate.

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From $900 to $20 million In 2013, the Innu of Matimekush-Lac John and Uashat mak Mani-utenam sued IOC for violating their aboriginal rights through its activities for $900 million. The agreement Ussinyun cancel this lawsuit and agree on new financial arrangements between the parties. According to the documents that La Converse consulted, the settlement would instead be $20 million, paid immediately and 50% separated between the two communities concerned. Annual royalties are also planned based on the quantity of iron ore extracted from the ground, which represents several million for each community. Me Hamidi explains that “these funds are subject to the condition that they are mostly reinvested in IOC's infrastructures and in those of the passenger train that connects Sept-Îles and Schefferville” — the same railway that IOC uses to transport its iron ore to the port of Sept-Îles.

‍“Bidon” consultations

For his part, George McKenzie explains that it was not easy for his community to access information meetings, especially in a pandemic context. “To register for the consultation, you had to go through the Internet. I don't think our seniors can register like that,” he said. Because of the risks associated with COVID-19, which poses a greater danger to Indigenous communities due to the density of housing occupancy and pre-existing medical conditions, he says that people did not mobilize. “There was not a lot of participation. [...] I think it was a good time for the band council to pass an agreement like that,” he says.

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For Me Hamidi, “this lack of transparency is a common reality in communities, because the band council concentrates all powers and there is no body that oversees the councils, except the Ministry of Crown-Indigenous Relations and Northern Affairs Canada, located in Ottawa.” According to her, the pandemic worsened this opacity by limiting meetings that allowed members to debate, by reducing consultations, by concentrating information online and by restricting decision-making through virtual meetings. Some votes were even held virtually, which limited participation. Like George McKenzie, she notes that many seniors and members do not have access to the technology needed to participate in virtual meetings or simply to consult information. Tshani Ambroise is the former leader of Matimekush-Lac John: he was the one who contested the results of the election he lost in 2019 to Réal McKenzie. He agrees with George McKenzie. For him, “the consultations were not adequate.” “The content of the agreement was not well explained to the population. [...] There was no openness to negotiation, consultation or even the possibility of asking good questions,” he said. He also points out that an amount of $2,000 was promised to each family if the agreement was accepted. “For me, it's just buying votes to say yes to the referendum,” believes the former leader, who had already negotiated a similar agreement with IOC himself with IOC, but which had not been ratified. Martial Pinette, the member of Matimekush-Lac John who works outside his community from Matimekush-Lac John, confirms that he received this sum of $2,000. “It was just before the holidays. This money came directly from the agreement with Rio Tinto,” he said. George McKenzie also says that $2,000 was promised to each inhabitant of Matimekush-Lac John if the agreement was accepted: “The economy [is] not doing well. If you're promising $2,000 per vote, it doesn't surprise me that band councils do it that way. We are at their mercy.” The inhabitants of his community, Uashat mak Mani-utenam, were not in a position to receive this sum.

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Contacted about this procedure, Rio Tinto-IOC refused to make any comment and referred us to its press releases. The Department of Crown-Indigenous Relations and the department responsible for Aboriginal Affairs also declined to comment, citing respect for the governance of band councils in these files. The Uashat mak Mani-utenam band council did not respond to our repeated requests for interviews. At the time of writing, the Matimekush-Lac John Band Council also did not respond to our interview request.

A struggle that continues

Ms. Hamidi points out that political disengagement within certain communities has been observable for several years. “There is very little participation in general meetings, which leads to fairly significant governance problems,” she explains. She insists on putting this information into context: this observation is a direct consequence of the Canadian colonial structure, which has aimed for hundreds of years to destroy the self-determination of indigenous peoples. “I call it a pierced canoe with a broken paddle. [...] This is the structure that is made like this, and we have not been able to get out of it,” adds Pierrot Ross-Tremblay, Innu sociologist and holder of the Chair. of Canada's research into intellectual traditions and self-determination of First Peoples.

Despite these difficulties, Normand Pilot is staying the course. “I am often told that I am a bad loser. I am not doing this because I did not win my elections,” he says, clearly exasperated by the kind of comments he has been the target of since he started the lawsuit against Mike McKenzie's council. “I am doing this for my children and my grandchildren. For future generations. For them to have a heritage, [a future] where they can still assert their identity and practice [Innu] values and culture. To save our language. For me, that's why I do this”, he declares with a voice broken by emotion. At the time of writing, the lawsuit he has filed has still not been settled.

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‍Important dates

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‍July 15, 1954 : First rail load of iron ore from Schefferville to Sept-Îles

August 18, 2013 : Filing of the Innu's $900 million lawsuit against IOC.

‍June 26, 2019: Re-election of Mike McKenzie as head of the band council of the community of Uashat mak Mani-utenam.July 4, 2019: Election of Réal McKenzie as Chief of the Band Council of the Community of Matimekush-Lac John

‍August 23, 2019 : Challenge before the Federal Court of the elections of Uashat mak Mani-utenam by Normand Pilot and Rolland Thirnish.

‍September 2019 : Invalidation of the election of Matimekush-Lac John following the challenge of former leader Tshani Ambroise.

‍February 21, 2020 : Recognition of the jurisdiction of the Quebec courts to deal with the lawsuit against IOC.

‍September 15 2020 : Appeal Board decision, which recognizes Réal McKenzie's eligibility as head of Matimekush-Lac John

‍December 3 2020 : Signature of the agreement between the mining company IOC and the Innu of Matimekush-Lac John and Uashat mak Mani-utenam.

‍December 7 2020 : Announcement of the relaunch of the Plan Nord by the CAQ government.

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To go further...To learn more about the dispossession of the Innu of the North Shore at the beginning of iron ore mining: the book I am a damn savage, by An Antane Kapesh.