My Thoughts on the Pending OPG Agreement

I have had the honour, and duty, of serving the Mohawk Nation Council as one of its land claims negotiators from 1984 to 1991. I took a firm, unyielding stance against the United States-New York State offer to exchange (meaning extinguish) sections of our aboriginal territory at Akwesasne for a few million dollars and a few thousand acres of forest astride the St. Regis River. When commercial gambling became available Governor Mario Cuomo adopted the tactic of offering casinos for land, which was rightfully rejected by the Nation.

One of the best things we did as a joint negotiating team was to have Brenda Lafrance and Rosemary Bonaparte of the St. Regis Tribal Council draft a settlement proposal. An integral part of that plan was the hydro electrical power plant on Barnhart Island, a vital part of Akwesasne stolen from us by New York State and subsequently altered to accommodate the massive St. Lawrence Power Dam. There was no doubt whatsoever that we had a powerful, irrefutable claim to Barnhart. We retained a consulting firm specializing in power generation to advise us as to the monetary claims we could make against the Power Authority of the State of New York.

The numbers they came up with were exciting. We could have asked for, and received, a permanent income of $32,000,000 annually as long as the dam created electricity, an amount which would have risen with inflation. The value of the dam and attached “improvements” was over $600,000,000 (all in 1998 dollars) of which we could have demanded a reasonable share. We could have done this without conceding one square inch of Mohawk land. We could have also gotten free electricity for all of Akwesasne.

What happened? Our group fell apart, particularly the St. Regis Tribal Council. It came under the control of a few people (including one trustee who turned it into a “criminal enterprise” as cited by the US Justice Department) who had their own interests in mind and were adamantly opposed to the unification of Akwesasne. We lost a generation’s worth of work then.

The Mohawk Council of Akwesasne has learned a valuable lesson from the collapse of the 1988 agreement. They have rightfully brought the matter of a settlement with the Ontario Power Generation group before the people, to seek their advice prior to agreeing to terms. In that spirit, and with an eye to what we almost secured 20 years ago, here are a few of my own observations.

As a former negotiator I wanted something tangible for our people. We have absolute rights to the St. Lawrence River and all it contained including the generating of electricity. I felt then, as I do know, all Mohawks should have free electrical power and this point should be clearly stated in any agreement. Not power at a reduced rate but power as taken from our river. It will cost OPG next to nothing and will be a great aid to each and every Mohawk family during these difficult times regardless of which district they live in.

I believe we should not settle for anything final in the way of money. Rather than accept a series of payments we should seek a permanent share of the revenues generated from our river. As long as OPG profits from our waters so should we. This income would go a long ways towards helping Akwesasne achieve financial independence from Ontario and Ottawa. We need to be free of federal and provincial bureaucracies with the resources to pay our own way as we see fit.

We need the OPG to be crystal clear on this point: they will be wholly responsible for any damages caused to our lands as a result of their operations. In section 6.2 of the proposal the OPG retains the right to “flood” those islands “which meets the needs of the OPG”. This is vague and disturbing. OPG should also be required to pay for all past and future environmental damages not only to the islands but to the river itself. It should, in accordance with traditional Mohawk law, leave the islands in a better condition than when they were taken. It is also unclear as to what is meant in section 6.5 in which the return of the islands are “subject to any existing encumbrances”. If this means “ current structures in place” “right of way” or “eminent domain” actions than it must be spelled out as clearly as possible.

The Mohawks must also have the unqualified right to use the waters of the St. Lawrence in accordance with our customs (and not just the islands) and that the OPG will acknowledge our jurisdiction in this area and that the company will be subject to Mohawk laws should they be found in breach of this agreement. I strongly support the MCA’s assertion of its aboriginal rights in the preamble provided that nothing in the agreement can be interpreted as a waiver, or a qualification in any way, of those rights. I would also suggest having the MCA be given first option to purchase OPG facilities including the right of first refusal. But a note of caution: aboriginal rights is not a legal concept acknowledged by the Canadian courts.

Disputes are inevitable in these kinds of matters. A binding court of arbitration composed of an equal number of Mohawks, environmentalists and legal experts might be one way of avoiding lengthy lawsuits. When faced with companies as well funded and as aggressive as OPG a pledge of good faith mediation is rarely enough. In terms of hiring Mohawks should have first priority in all jobs and that a comprehensive training program, paid for by OPG, be set in place so Mohawks will secure the skills necessary to operate and manage every facet of a hydro electrical power plant.

I would also encourage the MCA to find their own way of generating electrical power independent of OPG. There are two viable options: turbines both wind and water. Both have been tested in the Akwesasne region and found to work. Four of the water turbines are being installed in the St. Lawrence near Ogdensburg while dozens of wind turbines are being set in place in Lowville and Ellensburg. The MCA could use the settlement funds to do both. Excess power not used by the community can be sold at a healthy profit to OPG or the New York Power Authority thereby generating another permanent source of income for Akwesasne. We must also remind our leaders of our duties towards the natural world. We are entrusted with the care of other species; they too have rights and must be heard in the affairs of human beings. Had we done so before perhaps the current ecological problems could have been avoided.

I am sure that the proposed Agreement will excite the community as to the enormous possibilities before the Mohawk people. Given the precedent the Agreement will set it is vital we all take time to read every word and voice our concerns and opinions in a reasonable and respectful manner. That is, after all, the traditional way which we need to restore as much as we are the rivers and the earth.