A Step Back

Nisichawayasihk Cree Nation and the Wuskwatim Project
May 26, 2004

The agreement between the Nisichawayasihk Cree Nation (NCN) and Manitoba Hydro over the development of a 200-megawatt dam and transmission line in Northern Manitoba is of uncertain financial value and based on the risk assumed by the Nation, has weak environmental protections, and does not provide for managerial training according to a new study released by the Canadian Centre for Policy Alternatives. The study, which was prepared by Peter Kulchyski, Head of the Department of Native Studies at the University of Manitoba, also notes that the agreement does not contemplate any significant support for the hunting way of life and in fact moves in a direction that diminishes the possibility of a future for northern hunters. For these reasons, Kulchyski said it was "a step back from two decades of progress made in the area of Aboriginal and Treaty rights. It is not a rights-based document."

The project is currently being assessed by the Manitoba Clean Environment Commission.

Kulchyski's paper analyzes The Summary of Understandings (SOU) between Nisichawayasihk Cree Nation (NCN) and Manitoba Hydro with Respect to the Wuskwatim Project. This 2003 agreement in principle outlines the terms of NCN's equity partnership in the hydro-electric development to take place near the community of Nelson House in northern Manitoba.

Kulchyski concluded that under the agreement NCN is making a significant concession to Manitoba Hydro, effectively surrendering the struggle for getting a better deal based on either of the two treaties it signed.

Kulchyski places the SOU in the context of both Treaty Five and the Northern Flood Agreement, noting that the Supreme Court has called for a "liberal and generous" interpretation of treaties. He argues that "genuinely generous interpretation might even go further: to recognize that Aboriginal peoples have an inalienable inherent jurisdiction over their traditional territories and begin developing structures to implement and enable that jurisdiction." Kulchyski said that various implementation agreements negotiated by the Manitoba Government with First Nations communities are "unconstitutional and will not stand the court challenges that they will ultimately and inevitably give rise to."

According to Kulchyski, "This is not a resource revenue-sharing model where revenue for the First Nation is generated as a result of its Aboriginal or Treaty rights. Instead NCN will be a minority partner with a significant equity position in the Wuskwatim project, raising capital for its equity largely through loans from Manitoba Hydro. The project may be successful and after a lengthy period of time begin paying dividends to NCN, it may be less than successful deferring long into the future when dividends are received, or it may be unsuccessful and leave NCN with a legacy of enormous debt.

Kulchyski also argues that the environmental protections in the overall designs of the project are weak and lacking in financial penalties. Furthermore, they leave Manitoba Hydro with "sole control over water discharge, water levels, water level fluctuations and unit dispatch within the parameters of all relevant licenses." The training fund provided in the agreement cannot be used for salaries and training is oriented to manual and lower level training.

The agreement must be approved by a referendum of NCN members. Kulchyski says that in light of the project's potential impacts the approval process should include "a sufficiently lengthy period of time specified for debate to allow citizens an opportunity to understand what will undoubtedly be a complex legal document; that resources be allocated to proponents and opponents of the agreement within the community; translation of the document into the Cree language; and that a date for a vote be established well in advance." The agreement does not require such provisions.

In his conclusion, Kulchyski writes, "Although anyone with a conscience must agonize over the choices that Aboriginal communities must make when faced with the serious social consequences of a colonial history, and can understand why any jobs and any so-called 'development' has a strong appeal, I have no doubt whatsoever that the model contemplated in the SOU will build an additional legacy of distrust for the generations who will follow."