By Alex Roslin
It is being called the greatest legal victories for the Crees since 1972, when Justice Alfred Malouf stopped the James Bay project. A Quebec Superior Court has ruled that the province's logging regime in the Cree territory is illegal and unconstitutional."The constitutional rights of the Cree plaintiffs have been openly and continually violated," wrote Justice Jean-Jacques Croteau in the Dec. 20 decision. "Quebec canot violate the constitutional rights of the Cree community with impunity."The Quebec government has until July to start changing its forestry policy to conform to the James Bay and Northern Quebec Agreement. This gives forestry companies one more year of logging as usual, since they can renew their annual logging plans in April.In his ruling, Croteau rebuked Quebec for ignoring the James Bay Agreement in designing its forestry policy. Croteau apparently was unswayed by Quebec's argument that a halt to logging would leave the province economically devastated. Half of Quebec's forest is in Cree territory.The judge also ruled that his judgement will come into effect even if Quebec appeals.As of press time, Quebec still hadn't filed an appeal, but it has until Jan. 19. Two cabinet ministers said an appeal is virtually certain, claiming that the ruling threatens 30,000 jobs. One lawyer on the Cree side praised Croteau as "very courageous," and said he gave Crees more than what they asked for.Crees were trying to get what's called a "safeguard order" to stop new logging plans from being approved. The judge actually reserved his decision on this Cree request. Instead, he declared Quebec's forestry regime in James Bay illegal and ordered it to be changed."It goes farther than what we asked for," said the lawyer.The judge also left a dagger hanging over Quebec's head. If the government doesn't change its forestry regime promptly, he can at any time grant the Crees the safeguard order that he reserved judgement on.Crees were jubilant as news of the judgement spread just before Christmas."Of course we were excited. It was stunning," said Sam Etapp, coordinator of the Cree forestry campaign. "Everybody was very pleased about it. What Crees were promised in 1975 is not what's happening," he explained. Etapp said he doesn't buy the argument that the ruling threatens many jobs. "If they continued at the rate they are going, they themselves would destroy their own economy," he said. "They should thank the Crees for doing them a service."Etapp said Quebec's forestry law hurts the companies too because it forces them to log what's called the "maximum allowable cut" every year. A company that logs less than this amount faces penalties, and another company can be allowed to move into its area. Quebec is in "open violation" Justice Jean-Jacques Croteau's 56-page forestry ruling is the knock-out punch the Quebec government never saw coming. On page after page, the judge slams Quebec over and over for ignoring the James Bay and Northern Quebec Agreement in its forestry law. Considering that the agreement covers more than 50 percent of Quebec's forest, Croteau finds the lapse strange."The court is of the opinion that this is an element the legistature should have considered in 1987 when it adopted its law," Croteau wrote in one of his more dry passages. Croteau scolds Quebec for its "laxism" toward Cree rights. The province has never subjected forestry to the environmental and social-impact hearings required in the agreement for most development projects.Also, the agreement says the government is supposed to come up with logging plans for the North. In reality, Quebec lets the companies design the logging plans and even carry out the consultations with the Crees.Croteau slammed this process, saying it is yet another violation of the agreement. He said it puts forestry companies in a "conflict-of-interest," and could leave Crees with "a fear of being abused or being deprived of certain rights." The judge said Crees clearly have a right to the full impact hearings for forestry operations. "This is a clear right. There is no doubt in the mind of the undersigned," he wrote. Croteau also struck down parts of Quebec's Environmental Quality Act, saying they too violate Cree constitutional rights.
Hearings on the forestry case were supposed to continue after Christmas. Next up are hearings on three Cree injunction motions related to logging plans and a new forestry road Donohue wants to build north of Waswanipi. These hearings are on hold while Quebec decides whether to appeal Croteau's Dec. 20 decision. -A.R.