The Grand Council of the Crees

Presentation of Grand Chief Dr. Ted Moses to the IAIA 05 Conference ? Theme Forum: Transparency in Decision-Making in Impact Assessment

Presentation of Grand Chief Dr. Ted Moses to the IAIA 05 Conference ? Theme Forum: Transparency in Decision-Making in Impact Assessment

Posted: 2005-06-01

I thank the organizers for this opportunity to speak today and I wish all participants success in this conference and a safe return home afterwards. Environmental assessment is an important tool for the regulation of development. Both governments and aboriginal peoples have legal and political interests that are outside of these processes, but of course must also rely on the processes for final decisions or as you usually refer to them, ?recommendations?. Aboriginal peoples, in the view of an increasing number of people, have the right of self determination that is set out in the International Covenant on Civil and Political Rights. Most people probably already recognize the ability of nation states to approve or refuse development proposals. I believe that the survival of aboriginal peoples depends on their ability to be important players in the decisions concerning development on their ancestral lands. To do this we must carve out a place for ourselves within this increasingly complex world and within the nation states where our nations are located. The relationship between aboriginal peoples and nation states has long been based on legal fictions, used by states to rationalize the removal of aboriginal peoples from decisions about development on their traditional lands and from the benefits that they generate for the larger society. European legal theories such as ?Terra Nullius? ? deemed aboriginal peoples to be incapable of owning lands as ?civilized peoples? do. You might think this concept out of date, but in fact, it was only rejected by the Australian High Court in the 1992 Mabo case. Other countries use similar legal tricks, or in some cases, there is no attempt at all to rationalize such violations of human rights. In Canada, it was argued that aboriginal rights could not include title to land because aboriginal peoples never had such concepts in their own cultures. Aboriginal lands, it was claimed, were shared and used in a communal manner and therefore our societies could only ever have rights over continued traditional use of the land, usufruct rights, but no rights to the land and its resources. By presuming to appropriate the systems for the allocation of rights to space and resources in our traditional lands, many are attempting to freeze our cultures and our rights to a hunting and fishing way and are attempting to make our rights in regard to development of our traditional territories a secondary issue . In our Cree society, we have family hunting territories, but rather than focusing on how to divide title to lands and resources, the system is built on individual obligations to care for and share such resources. However, Canadian law has an ethnocentric view of such matters and did not until recently recognize our collective right to determine land and resource in our way. It was only in 1997 that the Supreme Court of Canada gave some legal content, in the case of Delgamuukw, to the land rights of aboriginal peoples in Canada and referred to as ?aboriginal title?. The Court found that aboriginal title included much more than simply fishing and hunting rights, but rather extended to an actual right in the land and in its development. However, it is long and difficult for aboriginal peoples to actually establish before a Court their aboriginal title, thus somewhat limiting the practical scope of the important judicial decision. Here in Canada the poverty of aboriginal peoples and the exodus of aboriginal citizens from their lands are not coincidences, they are the historical result of these policies of dispossession. What is the alternative? Despite this legal backdrop to Canada?s actions, in the last two years Canada has become an advocate at the United Nations of the idea that aboriginal peoples have access to the international right to self-determination. This is the right of all peoples to freely determine their political status, to freely pursue their economic, social and cultural development and to freely dispose of their natural wealth and resources. This right will of course have different expressions in different places. It is also not always an absolute right in that historical and economic circumstances condition how it is manifested. In our case, following a fierce legal battle, in 1975 we signed the James Bay and Northern Quebec Agreement with Canada and Quebec. In it, we turned our backs on the colonial policies that had impoverished aboriginal peoples elsewhere in Canada. The treaty recognized certain Cree service, governance and economic rights over all of our traditional territory and Quebec and Canada signed the treaty. It was subsequently protected by the Constitution of Canada in 1982. We signed the James Bay Agreement because development was on our doorstep and we were not ready for it. As we were unprepared we would have missed the benefits of development and worse, the way of life we pursued in the bush would have suffered a severe blow. We were not against all development but we needed terms for development that allowed us to define a future for our lands and communities. At the time of the negotiation, there were no laws for environmental and social impact review. Instead, for the 13,000 sq. km. La Grande Project that was already under construction, the Agreement itself set out a series of remedial works and also set up a joint Cree-Developer corporation to oversee works to remediate impacts on the hunting, fishing and trapping way of life as well as for some other bio-physical impacts. The Agreement also called for design changes to the project to lessen its impacts and it set the scope of the project to certain powerhouses, approximate outputs, flood level limits, locations, etc. We cooperated with the realization of the La Grande Complex in 1978, 1979, 1986, and 1993 we agreed to changes to its design. In return for these concessions, we received funding for community development, for remedial works for hunting and fishing and to help to come to terms with previously unknown impacts of the project such as the increased mercury contamination of the fish in the system. There is already mercury in Northern Quebec waters and the fish in the La Grande Project are now, after thirty years, just returning to those pre-project levels. During the period of construction from 1975 to the late 1980?s, problems with the implementation of the James Bay and Northern Quebec Agreement plagued our relations with Canada and Quebec. We launched many court actions to obtain promised health services, sewer and water systems and local government funding. The development of our communities was slow and houses were overcrowded. Job opportunities and business opportunities were lost as needed training and other agreed-to means to give Crees access to employment and other economic opportunities were not implemented. In 1989, the Crees saw clearly that development in the north was designed to benefit those in the south. Cree development had been largely refused. In a sense, both the Crees and developers had been cheated by the lack of implementation by the governments. The Crees were cheated because they paid the social costs of lagging development and the developers, Hydro Quebec and mainly the forestry companies, were cheated because they now were about to pay the cost of having a Cree population in the territory that was very adverse to further development. In 1989 the Crees voted to fight and to stop the Great Whale and NBR projects. The Great Whale campaign took 5 years to complete, but with the help of many American, Canadian and international parties, by 1994 we had stopped the project. In 2000, we did a review of the state of our own exclusion from development. In a territory where the Crees are the main occupants of the land, we had less than 1% of the permanent jobs in hydroelectric development, less than 5% of the forestry jobs and fewer than 10% of the mining jobs. We subsequently commissioned another economic study that revealed that of the billions of total worth they brought to Quebec, the James Bay developments brought to Canada and Qu?bec an added economic worth of between $2.5 and $2.8 billion each year, in comparison to the next most cost-efficient investment that might have been made to provide electricity to Quebec. To the Canadian Government alone, the annual tax benefit of this development was at least $800 million dollars per year. The James Bay Agreement is a huge boon to Quebec and Canada. Between 1989 and 2001 little progress had been made by Hydro Quebec on unblocking hydroelectric development. Hydro Quebec had adopted a policy that projects would not go ahead without the consent of local communities, but the Crees were not convinced. We launched a court action on forestry as the way it was carried out damaged our rights to live on the land. It was in this context that Quebec Premier Landry and I discussed the situation. The Crees wanted to implement the 1975 treaty, but we also needed more access to development and its benefits. Quebec wanted more development in the territory. We both wanted peaceful relations. We decided to see if an agreement was possible. After three months of intensive negotiation and community consultations we reached a final agreement. There have been many false statements made about this process and I wish to correct them. First of all, it must be understood that the agreement broke with the policies that had blocked implementation of the 1975 Treaty. Secondly, all of the Cree Chiefs, agreed to the Agreement in Principle and to the signing of the final agreement. Third, I met with all of the Cree communities and with Cree students in the south on the agreement in principle and at those meetings, I was told to complete the negotiation. Fourth, after we had a final Agreement, we held a second round of general community meetings that lasted two days each. After that, the communities each independently decided on a manner of asking for the consent of their populations. They all chose local referendums. Approximately 64% of the 7,000 eligible voters turned out for the elections and of these close to 70% (3,106) voted in favour of the Agreement. The percentage of those that voted compares favourably with normal election turnouts in the local communities and it certainly compares favourably to recent provincial and federal election turnouts in Canada. Among other things, the Agreement provides for the following: - Future development will be compatible with our way of life and must be sustainable; A new Cree-Quebec Forestry Board will review all company cutting plans to ensure they accord with the new Cree-Quebec forestry policy and will oversee Cree hunter-company consultations on those plans; Cancellation of the 6,500 square kilometer, 8,000 megawatt - 39 terrawatt hour NBR Hydroelectric Project [three times the energy output of Great Whale]; Cree consent to the 1,200 megawatt, 603 sq. km. EM 1 Project, which was exempted from review as part of the 1975 La Grande Complex. [It is being constructed on our family?s hunting lands]; Cree consent to the EM1A/Rupert Diversion Project, an addition to the EM1 Project and causing an additional 350 sq. km of flooding; - Hydro Quebec agrees to pay for the long-term training of 150 Crees for permanent technical jobs at the dams; - On the new projects, over $800 million of contracts are to be set aside for Cree companies; - A fund of $24 million to combat the impact of mercury contamination is set up; Crees will implement Quebec?s 1975 treaty commitments to Cree economic and community development for 50 years and Quebec will make a minimum contribution of $3.5 billion to the Cree for this purpose through annual payments of $70 Million. This will increase to reflect the annual growth in the total value of production in the forestry, hydroelectricity and mining sectors. The agreement set the basis for two future hydro-electric projects and defined them. In the original treaty of 1975 known as the JBNQA, a huge project was contemplated known as the NBR project involving the diversion of two major rivers and the building of a series of dams along the Rupert river with associated large reservoir flooding. Under the new agreement signed three years ago, this project was abandoned in favor of a more sustainable project from the environmental and social perspective. Under NBR, the post-project Rupert River would have only had about 30% flow at the mouth. At present, if the project EM1A is approved, the river will have about 50% of its natural flow at its mouth. Water levels and spawning sites will be maintained by a series of dykes in the river. Moreover, there will be $800 million of contracts for the Crees on the construction of the EM1 and EM1A Projects. The items already agreed-to for the EM1A/Rupert Diversion Project form a floor and can be increased by the review process. The proponent Hydro-Quebec must demonstrate to the independent review bodies that this project is sustainable from a social and environmental perspective. Failing to carry out this demonstration, the project may not receive the required permits or may be subject to stringent permit conditions. The process for reviewing projects in the James Bay Agreement includes social and environmental considerations. In 1975, we thought we had 10 or more years to prepare for full economic participation. Non-implementation of the treaty by Canada and Quebec thwarted our plans. We spent the time fighting for implementation. Environmental and social assessment processes work best when the society concerned has a well established means to participate in the development and also has a functioning economic and social system equitably enjoyed by all. People must see themselves and the future of their children in a project for it to truly be development of spirit and body. In 1975, we were on Quebec?s frontier. The preface to the JBNQA refers to the organization and provision of services to northern Quebec. However, for the Crees this territorial development did not happen. It was therefore, only after having negotiated a catch-up agreement with Quebec that we felt comfortable with turning the decision on the EM1A/Rupert Diversion Project over to a review process. For us there are two large questions that concern this project: 1. will the fish resources in the project area be equal in diversity and numbers after the project? 2. Will the Cree People be able to deal with the impacts of this project to their ways of life, as an additional source of concern to certain health and social problems that they already face and most of all to their spirit and sense of who they are? In the best of worlds, the Crees will say that they want the project and the opportunities that it brings. The project should help the Crees to face the future with confidence. The directives for the EM1A ? Rupert Diversion Project have been out for over a year now and are available on the internet (see the Cree Web site for links - gcc.ca). Canada, Quebec and the Crees approved them. I will only focus on a couple of aspects of the directives. First of all the directives call for the identification of the valued ecosystem components that may include the culture and way of life of the impacted people. In identifying the key issues the directive states that: (and I quote) ?? these issues take into account the concerns and worries of the communities affected by the Project and that can tip the balance in favor of or against the Project? The issues can be revised and adjusted in relation to the information acquired in the field and during the consultations held by the Proponents.? This of course refers to things that are to be impacted and that are valued by the Cree People and to issues that the people identify concerning the project. Secondly, (and I quote): ??the description of the social environment must be particularly detailed and understandable for the communities of Mistissini, Nemaska, Waskaganish and Eastmain that are directly impacted by the flooding, dam and diversion structure and by the impacts of the reduced flow of the Rupert River.? Moreover it goes on to state that the Impact statement will describe the evolution of Cree society over the last 30 years and will conduct an assessment of the Crees? ability to maintain the social cohesion of their society to be based on (and I quote): ?the results of a perception survey conducted among the members of the affected communities from a representative sample of the sexes, age groups and socio-professional categories.? - It goes on to specify the content of the survey. The debate on the new projects continues in Cree society. However, for the review process to accomplish its task, the views of those to live with the impacts must be known and part of the analysis. The construction of the first project, EM1, is in its final phases. Many Crees and Cree companies have benefited from the work. The impact statement on EM1A/Rupert Diversion must include this debate on projects and the future of Cree society and the review process must weigh all of the factors set out in the directives. The second very important element of review processes is the follow-up or monitoring of project impacts. In 1975 we were told that the La Grande Project would provide fish and hunting grounds for the Crees. We planned access points and campsites on the reservoirs. But the reality of mercury contamination scared the people from eating the fish and the shorelines did not re-establish. Alternative sources of fish were found for the interim period and now we see the fish in the reservoirs are becoming less contaminated. In fact, we did not have good base-line data for La Grande and we will never know the extent of the changes. In the new projects, there will be base-line data and so we will be able to better gauge project-induced changes and losses and know how long they last. It is important for future development, to know how well remedial measures work. It is also important to know the details, so that remedial measures can be adapted to become more effective. This is what Hydro Quebec proposes for the lower Rupert River, where managed bodies of water will replace free-flowing ones. Environmental impact assessment is a tool for the planning of development. However, it cannot replace the larger political and human rights context of which it is a part. Technical and human issues can be dealt with in such a process but even they are limited by the regulatory framework of standards and policies. The fundamental decision to build or not must be guided not only by technical considerations, but also by larger human issues. Human rights and political considerations must be brought in and enforced by Aboriginal Peoples themselves. Meegwetch, Thank You, Merci Beaucoup!