In a decision rendered last week, but revealed this Monday, Judge Thomas R. Davis of the Superior Court condemns Hydro-Québec to pay compensation of $5 million to the community for having “contravened its obligation to act in compliance with the principles of the honor of the Crown” and having “demonstrated institutional bad faith”.
At the same time, the magistrate annulled the 2014 agreement in principle as well as the out-of-court settlement declaration concluded the following year.
Compensation of $75 million
The agreement in principle, which provided for the payment of more than $75 million between 2014 and 2073 in compensation for the destruction of the ancestral territory of the Innu by the construction of the La Romaine complex, was approved by referendum following consultations.
However, Hydro-Québec never presented it for approval to its board of directors, citing a financial risk linked to the fact that a handful of dissident families opposed the agreement.
In a very detailed 152-page decision, Judge Davis considers that “by acting in this way, Hydro-Québec decides that the referendum, which it itself demanded, has no relevance or only very limited relevance. Hydro-Québec’s logic led to a situation where the dissent of a single person prevented the conclusion of the Final Agreement. By acting in this way, Hydro-Québec did not respect community governance.”
Hydro-Québec: a “troubling” attitude
The magistrate goes further, writing that “we can have the impression that Hydro-Québec was looking for all possible reasons not to conclude the Final Agreement, while wanting, however, to establish other projects on the territory claimed by the Innu of Uashat Mak Mani-Utenam.
Judge Davis, who describes the attitude of the state corporation as “troubling,” broadly emphasizes that after the success of the referendum, it “decided not to respect one of the fundamental obligations it has contracted in the agreement in principle, or to submit the Agreement in principle to the board of directors.
The government of the indigenous community, Innu Takuaikan Uashat Mak Mani-Utenam (ITUM), says it welcomes “with relief and satisfaction the judgment of the Superior Court recognizing the institutional bad faith of Hydro-Québec (…) and vindicating the Innu of Uashat Mak Mani-Utenam all the way.”
“A great victory”
In a press release, Chief Mike McKenzie wrote that “this ruling is a big victory for us. This is a recognition of the governance of our people, which must be respected by the provincial and federal governments and their state corporations. Governments and their state corporations cannot act with impunity.”
-ITUM promises to continue “to fight so that no development can take place on our territory without our consent and our full participation”.
act of contrition
Everything indicates that there will be no appeal while Hydro-Québec, for its part, says it accepts the decision of the Superior Court. In a written statement sent to The Canadian Press, Hydro-Québec notes that the events date back several years and, at the same time, shows a blank slate. “This file illustrates the importance of the new approach that Hydro-Québec has undertaken in its relations with Indigenous communities. This change seeks to ensure that Hydro-Québec projects are developed in close collaboration with Indigenous communities and therefore create real benefits for these communities.”
It should be noted that both the government of Canada and that of Quebec are absolved by Judge Davis, who explains that it was Hydro-Québec and Hydro-Québec alone which took the harmful actions in this case.
The honor of the Crown was at stake
The magistrate at the same time rejects the claims of the state corporation to the effect that the principles of honor of the Crown did not apply to the case since it acted as a promoter in its interactions with ITUM, and not as a government representative.
On the contrary, said Judge Davis. “In the context of the development and operation of a hydroelectric project, where Hydro-Québec clearly represents the interests of the Quebec State in the pursuit of its legislative mission, the Court considers that it must itself respect the principles of the honor of the Crown,” he wrote.
“Allowing HQ to override this obligation and view the Project solely from a commercial point of view would allow it to profit from it, without the Innu of UMM benefiting from appropriate accommodation for the potential damage caused to their territory traditional,” argues the judge.
“Stubborn refusal”
Thus, he writes, “Hydro-Québec’s stubborn refusal to make compromises in the negotiation of the Final Agreement constitutes not only an attack on the requirements of good faith, but also a failure to act in accordance with the honor of the Crown. (…) The violation of its obligations arising from the honor of the Crown, independently of any breach of the requirements of good faith, alone justifies holding it liable.”
While it was committed in 2014 as an institution to ensuring good relations with the Innu of Uashat Mak Mani-Utenam, it quickly abandoned this posture after letters from dissident families. “By doing so, she failed to respect her implicit duty of loyalty (…) a duty that the Court considers even more important in the context of relations with an indigenous community.”
