The Grand Council of the Crees

Integrating Conflict Management Considerations into National Policy Frameworks

Posted: 1997-10-13

Theme 2: Policy Formulation Process

Forest Management in Eeyou Astchee

The following presentation was given at a satellite meeting on integrating Conflict Management Consideration Into National Policy Framework in preparation for the 11th World Forestry Congress, Antalya, Turkey, October 13-22, 1997.

Abstract

In 1975, the Crees of Eeyou Astchee entered into the James Bay Northern Québec Agreement with Canada and the Province of Québec. This "modern day" Treaty established a detailed environmental protection regime with the objective of safeguarding the natural environment so that the Cree people could continue to derive a subsistence living from their boreal forest home. In effect this regime was to serve as a mechanism to resolve conflicts over the resources of Eeyou Astchee.

In 1986 the Province of Québec passed the Forest Act. This Act failed to recognise the rights of the Crees as provided for in the James Bay Northern Québec Agreement. As a result, the Forest Act and the regime it established is in direct conflict with the rights of the Crees as prescribed in the Agreement. The outcome of this conflict is a community consultation process which does not meet the requirements of the Agreement or the satisfaction of the Crees. From the perspective of the Crees, there is no consultation process and this has led to widespread destruction of traditional Cree hunting territories.

To resolve this situation, the Crees continued right to a land base that can sustain a subsistence living must be recognised in Québec's Forest Act. Only when this recognition is established and there is legislative harmony between the Forest Act and the James Bay Northern Québec Agreement can both sides sit nation-to-nation and build a forest management regime that meets the needs and vision of all.

Introduction

The organization which I represent, the Grand Council of the Crees of Eeyou Astchee, was asked by the hosts of this workshop to share the experience of the James Bay Crees of northern Québec with policy formulation, implementation, and conflict management in relation to the forest resource. To address each of these subjects in the time given I have organized my presentation using the four main themes of this workshop. In doing this, I hope to provide some insight on how these issues have affected the Crees and at the same time highlight some useful lessons from this experience.

1. The Policy Framework: The James Bay Northern Québec Agreement

The James Bay Northern Québec Agreement, hailed by some in Canada as the first modern Treaty between the state and an Indigenous people, finds its roots in the conflict over natural resources and their management. {1} Signed in 1975, the James Bay Northern Québec Agreement was the result of a protracted legal battle over the Province of Québec's policy of mega-scale hydro-electric development and the Crees' right to continue to derive a subsistence living from their boreal home as they had done for thousands of years.

The collision between those who live directly from the land and resource development is a global theme. Whether it is indigenous peoples of Australia, Indonesia, or Mexico, or rural farmers in Brazil or India, in each case it usually filters down to a question of the rights of minority populations succumbing to the will of the dominant society.

In Canada the chosen resolution to these conflicts is to pass treaties and laws which are meant to safeguard the rights of all parties involved. In the example of the James Bay Northern Québec Agreement, the Cree right to subsist from the natural resources of their land was confirmed in law. Furthermore these rights were to take priority over and be protected from all other laws and from inappropriate development. The Agreement is not designed to preclude resource development altogether; rather its function is to ensure that resource exploitation occurs in a manner that does not significantly infringe upon the Crees ability to hunt, fish, trap and gather. {2}

Protection of these rights and the land that sustains them was to be accomplished through an elaborate environmental protection regime detailed within the James Bay Northern Québec Agreement. Key to this regime is a series of environmental panels whose task is to review various development projects and any associated policy which affects the Crees and their traditional lands. Although advisory in nature, these environmental panels were to function as policy mechanisms to protect the rights of Crees as defined in the Agreement.

2. Policy Formulation Process: The Case of Forestry

As noted, the James Bay Northern Québec Agreement, in many ways, is designed as a mechanism to resolve conflicts over resource management on the lands where the interests of the Crees clash with the interests of the dominant society. Issues of resource management are to be distilled through an environmental regime specifically designed to meet the needs of all parties with a stake in those resources. This is the policy framework for the James Bay region or Eeyou Astchee as the Cree call it.

In the case of industrial forest development, this framework has not resulted in legislation or regulations that protect the Cree land regime or their rights. In the twenty-two years since the signing of the Agreement, Cree hunters, whose lands have been affected by forestry operations, have indicated that large-scale clear-cutting and unregulated public access to logging roads has made it difficult for them to continue to pursue a subsistence way of life. In the most extreme cases entire families have been forced to abandon their traditional hunting territories as forestry operations have left them barren of both trees and animals. {3}

And so if the James Bay Northern Québec Agreement not only provides the legal right for the Crees to continue a subsistence way of life, but also defines a policy framework for the protection of this way of life, how is it that such damaging forestry practices are being implemented?

Although the government of Québec signed the James Bay Northern Québec Agreement, thereby agreeing that the Crees hold special rights and privileges to the land above and beyond the general population, these rights and privileges have never been reflected in government policies. {4} In the years that have passed since the Agreement was signed, the Crees have yet to witness any resource development policy that recognises their rights.

In the formulation of Québec's guiding legislation on forestry--the Forest Act--the Crees' participation in the various advisory panels set out in the James Bay Northern Québec Agreement had no influence on the character of the Act. Instead of strengthening or complementing the provisions set out in the James Bay Northern Québec Agreement, the Forest Act serves to weaken the rights of the Crees by granting indefinite timber licenses for large tracts of forest to private companies. In granting this, Québec has shifted much of the burden of forest management, including the formulation of forest management plans, to the private sector. {5}

The James Bay Northern Québec Agreement specifies that government-approved forest management plans were to be exempted from the environmental impact assessment process set out in the Agreement so long as they did not impact an of area more than 65 square kilometers. {6} At the time management plans consisted simply of short-term timber allocations and inventories. With the passage of the Forest Act twelve years later, management plans were redefined to become long-term industrial strategies for companies holding renewable 25 year timber licenses. These redefined management plans not only included short and long-term cutting plans, they also included the road networks and logging camps which make up the infrastructure for those cutting plans. {7}

In redefining the content of forest management plans, the Province has taken the position that roads and camps included in the plans are exempt from the environmental impact assessment requirements contained within the James Bay Northern Québec Agreement. Moreover, even though these forest management plans now cover areas much larger than 65 square kilometers, Québec's view is that the company
management plans, once approved by Provincial resource managers, are exempt from environmental impact assessment. {8}

In essence, the government of Québec has used the Forest Act as tool to bypass the entire policy framework defined in the James Bay Northern Québec Agreement. It should be noted that their is no reference in the Forest Act to the Crees or the James Bay Northern Québec Agreement even though its jurisdiction accounts for almost one quarter of Québec's 450,000 square kilometers of commercial forest.

3. Implementing Policies: Abdication to Private Forestry Companies

With the passage of the Forest Act and the new timber licenses that flowed from its provisions, forest management--including the responsibility of conflict resolution--was placed in the hands of private forest companies. Disputes over harvesting levels, and where and when forestry activities were to occur became a matter to be settled between individual Cree hunters, local band councils and forestry companies.

In effect, the Forest Act, by failing to recognise the rights of the Crees and the James Bay Northern Québec Agreement, has enabled the government of Québec to abdicate its fiduciary responsibilities. If Cree hunters or the band council that represents them appeal to government resource managers over difficulties with a forest management plan, they are told to resolve the conflict directly with the company. If the dispute cannot be settled, the company's usual response is to refer to their timber license agreement with the Province and the Forest Act, and inform the Crees that they are operating completely within the law, even though this law conflicts with the 1975 Treaty.

4. Community Participation: Lets Make a Deal

Under the present conditions there are two opportunities for public consultation before forest management plans are approved. First, as directed by the Forest Act, there is a 45 day period for the public to review plans and submit comments. {9} This includes the Cree communities whose lands are affected by forestry. Second, the James Bay Northern Québec Agreement directs that forest management plans must be submitted to an advisory committee made up of representatives from Canada, Québec and the Crees. This committee then has 90 days to respond to the contents of the plans.

Events have demonstrated that neither of these opportunities for input fulfills the requirements of the Treaty. First and foremost, the plans when made public are in the final stages of completion. At this point all of the important decisions have been made and there is very little room for change. Multi-year road construction has been tightly planned according to annual harvest quotients, as have areas scheduled for cutting.

Presenting forest management plans at this stage of development signifies to the Crees that, despite the James Bay Northern Québec Agreement, their concerns are a low priority among forestry planners and will not be given serious consideration. This is especially true when corresponding maps of the forest management plans do not include traditional Cree land use designations such as family hunting territories.

Another problem with the current process of public participation is that forest management plans are not written for the public. These plans, detailing five and twenty-five years of forestry activity, are usually several inches thick and filled with maps of differing scales, charts and numerical calculations. A fair amount of technical expertise is required to effectively wade through the volumes of information contained within a single forest management plan, let alone several plans as is the burden in some Cree communities. The communities do not have the funds to hire the expertise necessary to adequately manage this task.

The 45 days for review and comment is insufficient as it gives Cree community resource managers very little time to contact the individuals or families whose hunting territories may be affected by the plans. These community members are often residing in their remote hunting camps when the plans are released making it impossible for them to participate in the consultation process.

In the case of the Advisory Committee set up through the Agreement, the committee is charged with reviewing all of the management plans for the entire region (over 20 five year and 25 year management plans). Once again this task exceeds the capacity of the Committee's resources, especially since the members of the Committee are part-time and only hold quarterly meetings. Nevertheless, even when the Committee has focused its limited resources to review of some of the forest management plans, they have found them lacking in the necessary background data to justify many of the decisions made in the plans. Requests to the companies and government for this background information have yet to be answered. Furthermore, Committee recommendations on the content of management plans are rarely implemented.

Overall, the late stage of consultation, the burden of complex inaccessible documents, the cultural insensitivity of time allotted for plan review, the lack of sufficient background data, and the scarcity of resources to participate in this framework of consultation, has led to dysfunction. From the Crees' viewpoint, there is no public consultation. {10} From the perspective of the companies, whose only obligation is to mail the plans to the Advisory Committee and hold a copy on file for the communities to view, they have fulfilled their prescribed role in the consultation process.

In the absence of an effective consultation process and Québec's abdication of its Treaty commitments to the Crees, private forest companies have been struggling to find firm footing. With growing frequency, several of the companies operating on Cree traditional lands have come to ad hoc arrangements with individual hunters before cutting in their hunting territories. These deals vary among the companies; however, each usually involves a gift of equipment or a cash settlement for the hunter's permission to operate in his hunting territory.

The Cree leadership at the local and regional levels find these deals unacceptable because they represent a direct attack on Cree collective rights and undermine their ability to bring equitable long-term solutions to this situation. Instead these deals, preying on the financial vulnerability of the Cree hunters, offer only short-term compensation for long-term problems. Compared with the economic loss and social disruption that Cree hunters and their families will face in the long run, these compensation payments amount to tokenism.

From the viewpoint of the forestry companies, they are caught between the conflict created by competing directives of the Forest Act and the James Bay Northern Quebec Agreement. In offering private deals, they are simply attempting to fill the void left by the Province's refusal to address the rights of the Crees.

5. Conclusion: Recommendations for Improvement

The scenario I have just described has led to a situation where conflicts over the management of forest resources are not resolved. Instead they are shoved aside at the expense of the Crees, their culture, and the forest environment. Sadly this scenario is not entirely unique to the Crees. Indigenous people across Canada are struggling with many of the same issues. {11}

However, just as the problems are similar, so are the solutions. The starting point for indigenous peoples across Canada is a recognition of their rights under Canadian and international law. {12} Outstanding treaty claims must be resolved before development can proceed and existing treaties must be respected. Negotiations over forest management conflicts on the traditional lands of indigenous peoples must be approached in a government-to-government fashion. {13}

For the Crees, resolving these issues would begin with a full recognition of their rights under the James Bay Northern Québec Agreement. This recognition must come by way of formal support in other laws such as Québec's Forest Act. One law must not be used a tool to deny the rights provided by another law. Only when there is legislative harmony, can the parties work toward designing a forest management regime that truly incorporates the needs and vision of all aspects of society. Until there is equity with respect to the Crees use of the of the forest and all of its resources, any attempts to design policies or processes to involve the communities in forest management will end in failure.

FOOTNOTES

{1} Cumming, P. 1989. Canada's North and Native Rights in B. Morse, ed. Aboriginal Peoples and the Law: Indian, Metis and Inuit Rights in Canada, p. 722-724. Ottawa, Carleton.

{2} The James Bay Northern Québec Agreement, S.Q.,1976. Section 4, 5, 22, 24, 28. Québec, Editeur officiel du Québec.

{3} Grand Council of the Crees (Eeyou Astchee), 1996. Crees and Trees an Introduction, p. 11-13. Nemaska, Grand Council of the Crees.

{4} Grand Council of the Crees (of Québec), 1995. Sovereign Injustice: Forcible Inclusion of the James Bay Crees and Cree Territory Into A Sovereign Québec, chapter 8.2. Nemaska, Grand Council of the Crees.

{5} Dufour, J. 1995. Towards Sustainable Development of Canada's Forests in B. Mitchell ed. Resource and Environmental Management in Canada: Addressing Conflict and Uncertainty, p. 100. Toronto, Oxford University Press.

{6} The James Bay Northern Québec Agreement, p. 327

{7} Daigneault, R. 1995. Brief on Forestry Infrastructure in Relation to the Environmental Impact Assessment Procedure Under Chapter II of the Environmental Quality Act and Section 22 of the James Bay Northern Québec Agreement. Unpublished report by the James Bay Advisory Committee on the Environment.

{8} The Environmental Quality Act, R.S.Q., c. Q-2, 1978. Chapter II, Schedule b item h. éditeur officiel du Québec.

{9} The Forest Act, S.Q., 1986. Section 249. Editeur officiel du Québec.

{10} Nutaaq Media Inc., 1996. The Disappearing Forests of Eeyou Astchee. Nemaska, Grand Council of the Crees (Eeyou Astchee).

{11} Report of the Royal Commission on Aboriginal Peoples, 1996. Volume 2, Restructuring the Relationship, Section 4, 7.2. Canada, Ministry of Supply and Services Canada.

{12} International Covenant on Economic, Social and Cultural Rights. 993 U.N.T.S. 3 I.L.M. 1967. Part 1, Article 1. and
International Covenant on Civil and Political Rights. 999 U.N.T.S. 171, 6 I.L.M. 368 1967. Part 1, Article 1., and
Indigenous and Tribal Peoples Convention I.L.O. Convention No. 169, I.L.M. 1382 1989. Part 1, Article 2., and
The Constitution Act. 1982, Canada, Section 35.

{13} Smith, P. 1995. Aboriginal Participation in Forest Management: Not Just Another Stakeholder, p. 11. Ottawa, National Aboriginal Forestry Association