The Grand Council of the Crees

Cree Legal Struggle Against the Great Whale Project

Cree Legal Struggle Against Great Whale Project

Posted: 0000-00-00

The province of Quebec decided in 1986 to build the Great Whale River hydro-electric project as the second phase of its immense plan, first announced in 1971, to dam and divert almost every major river running into James and Hudson Bays. Once again, as in the 1970s, we Crees of Quebec, under the leadership of our Grand Council, found ourselves confronted by a formidable array of antagonists:

The original Quebec scheme embraced three major components, the La Grande scheme, which had been under construction uninterrupted for at least 12 years,the Great Whale scheme, involving a number of rivers running into the southern end of Hudson Bay, and the so-called NBR scheme, under which the waters of the three great rivers to the southern end of James Bay, the Nottaway, Broadback and Rupert, would be dammed and diverted into one channel, along which would be built a chain of electricity generating stations.

The revival of the Great Whale and NBR schemes in 1986 was a consequence of the re-election of Robert Bourassa and his Liberal party to the leadership of Quebec. Bourassa had dreamed up the original James Bay scheme in 1971, and had since described himself as feeling "like a conqueror" in that he had conquered nature in northern Quebec. He had little concern with the Crees: in 25 years of dealing with us, he never once, not even to the day he died, visited a Cree village.

His 1986 scheme was even more massive than had been his La Grande scheme of the 1970s. At an estimated total cost of some $48 billion, he proposed damming the Great Whale and its surrounding rivers, in the northern part of the Cree territory, and the Nottaway, Broadback and Rupert rivers, in the southern part of the territory.

Without waiting for so much as a by-your-leave from the Grand Council of the Crees, Hydro-Quebec began preliminary work in preparation for the immense northern scheme, under which the Great Whale, the Little Whale, the Coats, and the headwaters of the Nastapoka rivers were to be dammed and diverted to create four reservoirs that would feed three new generating stations, GB 1, 2, and 3, with an installed capacity of 3,060 mw. Altogether this work was planned to create reservoirs of more than three thousand square kilometers in area, and add some 865 square kilometers of flooded land to existing water bodies.

Construction was slated to begin in 1991, the first job being to build a 500-kilometer road north from the site of the LG2 dam (on the La Grande river) to Great Whale river, or Whapmagoostui, as we call it.

The NBR project was supposed to follow construction of Great Whale. In its new guise, it called for creation of seven large reservoirs, and construction of eleven generating stations with a total installed capacity of 9,100 mw. When all built, Bourassa's dream (quickly dubbed "our Cree nightmare" by Grand Chief Matthew Coon Come) would have dammed, diverted or drowned more than a dozen great rivers, and created some 21 reservoirs and 24 power stations. In total the reservoirs would have covered nearly 18,000 square kilometers, an area almost as large as New Jersey.

We Crees were therefore confronted with the prospect of many more decades of massive construction projects in our lands which, including the four power stations already under construction on the La Grande at that time, would have added some 16,600 megawatts of generating capacity to the 10,800 of the original project, already built. It was evident that to build this system, engineers would arrive in force, with exploration and construction camps, roads, airports, and so on, not just along a few rivers, as was the case before, but throughout our entire traditional hunting territory.

Many outside commentators wondered at the sanity of those who proposed this huge scheme. It was doubtful whether existing river channels would be able to handle the huge proposed increases in water flow, and there was no doubt that the scheme would represent a massive, irrevocable interference with the natural systems which we Crees had lived with for so many centuries (and which we had kept in good health during all that time).

The impact on nature would be all-embracing: fish, beluga whales, polar bears, freshwater seals in the inland lakes, caribou, the aquatic balance along the Hudson Bay coast, ice regimes in rivers and ocean, and, of course, Cree traplines, would all be devastated.

The proposed project was so large, in fact, that the Crees' environmental expert, Alan Penn, questioned whether it could be designed so as to permit the development of the region for purposes other than energy production. The prospects, he said, were not encouraging. The same questions that should now be asked of the Great Whale project, he said, should have been asked in the 1970s about the La Grande project.

The key to the project was Bourassa's hope that Hydro-Quebec could make firm contracts to sell 3,500 mw of power to the New England states for delivery during the 1990s and beyond. Alan Penn's reading of the Hydro-Quebec documents indicated that the utility was hoping it could increase these sales over the years, with the possibility of providing an additional 6,000 mw after the turn of the century, depending on the level of United States demand. In the event several contracts for future deliveries of power were signed, the largest of them being worth a potential $17 billion in sales. Energy experts were hired by the Crees to analyse the energy component of the project.

This, then, was the challenge, and it was certainly one that called for immediate Cree opposition: the Quebec government and Hydro-Quebec announced their intention of barging ahead with the work, trying every trick in the book to evade the social and environmental protections that had been built into the 1975 James Bay and Northern Quebec Agreement (JBNQA), especially to deal with this kind of situation.

In 1990, before any social or environmental assessments were contemplated, Hydro-Quebec called for tenders for clearing and construction of the access road to Great Whale river. We Crees at first hoped that the federal government would intervene to point out to the provincial government the responsibilities the two governments had jointly undertaken under the JBNQA. In fact, at first, the Minister for the Environment, at that time the Quebecer, Lucien Bouchard (who later quit the federal Conservatives to become leader of the separatist Bloc Québécois, and finally Premier of Quebec), admitted federal jurisdiction over the environmental aspects of the James Bay II project, and exchanged a number of letters with a view to making a deal with Quebec for a joint study.

Then one day, out of the blue, Canada's environmental administrator, Ray Robinson, told our representatives unexpectedly that Canada had no jurisdiction. Obviously a political decision had been taken by the Mulroney Cabinet to leave the Crees spinning in the wind.

Our Cree chiefs took the federal government to federal court in March, 199l, to ask for an order of mandamus, that is, an instruction or order, or, alternatively, for mandatory injunctive relief, compelling the federal environmental administrator to comply with the federal environmental and social impact assessment and review procedures of Sections 22 and 23 of the JBNQA and the James Bay and Northern Quebec Native Claims Settlement Act, which was passed by the House of Commons to give effect to the Agreement.

The Cree chiefs claimed that we retain aboriginal rights over our traditional lands, have the right to exclusive use of these lands for hunting, trapping and fishing and that the James Bay mega-project violated and prejudiced exercise of these rights. They opposed the project and refused to consent to it, they stated, because of the many negative consequences, including the likely effects of the river diversions, flooding, the proposed road to Great Whale, and airports, on fish and marine mammals, migratory birds, navigable waters, water quality, climate, and because of the likely accumulation of mercury in the proposed reservoirs and rivers.

The Cree statement of claim said that the federal government has a fiduciary obligation to protect, preserve and enforce the Indian title and aboriginal rights of the Crees, but had "abrogated and neglected" that responsibility, had consistently breached the JBNQA, and "will in all likelihood continue" to do so in respect to the James Bay project.

Since the federal Environment Minister had neither applied Section 22 of the Agreement (requiring an environmental impact assessment of development projects), nor assessed the project under the Federal Environmental Assessment guidelines, the Cree chiefs therefore asked for a declaration that the Great Whale river project be declared unconstitutional, illegal and beyond the authority of Hydro-Quebec and the government of Quebec.

We had hoped for reasoned argument, at least. But we were in for a shock. Canada's first argument, supported by Quebec and Hydro-Quebec, was that the court had no jurisdiction, because the Agreement and the Act giving it status did not have the status of law, but only of contract. We interpreted this as a modern-day example of the old saying: white man speaks with forked tongue.

Fortunately, Mr. Justice Paul Rouleau, the federal court judge, found against the governments. He said he felt a strong obligation to find for the natives because otherwise their sense of victimization, felt across the country, would be increased.

The government appealed Rouleau's judgment, but it was unanimously upheld by the appeal Court, and the Supreme Court of Canada refused permission to carry the appeal forward.

Now came argument on the substantive issues, heard before the same judge. Canada and Quebec told the Court that on Nov 15, 1990, they made an agreement, without the participation of the natives, for a joint study to be undertaken pursuant to the federal Environmental Assessment Review Process (EARP) Guidelines. The results of this would go finally to a provincial review administrator, thus eliminating the federal review administrator provided for under the JBNQA. This was a frank attempt by Quebec and Canada to avoid the environmental and social review process set out in the JBNQA, which requires the participation of the Cree and Inuit co-signatories.

In his decision Mr. Justice Rouleau noted that under the JBNQA the Great Whale Project is automatically subject to environmental and social impact assessment "especially concerning the Cree populations potentially affected". Thus, he said, environmental and social considerations should form an integral part of the decision-making process, and he added that alternatives that could minimize such impacts should also be evaluated.

First, he ruled, the federal administrator must set up an Evaluation Committee to determine if the development would have any significant impact on the Indian or Inuit people or the wildlife resources.

He added:

"I doubt that anyone can suggest that Phase II of the James Bay project will not affect both the social and economic future of the native peoples and will certainly interfere with wildlife and its habitat, resulting in drastic changes to the traditional way of life."

Having thus demolished the government's first argument, he moved on to the second major contention, namely, that since the Project was within provincial jurisdiction, only a provincial review administrator was necessary; and any federal interests could be included in the provincial study. Once again, the judge found against the government. He found that this could happen so long as it was without prejudice to the rights and guarantees given in favour of the Crees in the JBNQA; and yet the two governments had decided to go ahead without the agreement of the Crees, who did consider that it would prejudice their rights. Judge Rouleau also found that federal jurisdictions were involved, including migratory birds, fisheries, marine mammals, Indians and Indian lands, and navigable waters.

He said this attempt by the two governments "was intended both to appease and circumvent the native populations" and "appears to have been negotiated in an attempt to free themselves from the duties and responsibilities imposed under the Agreement." He noted that under the EARP Guidelines procedure, "no federal permits or authorizations are required in order to proceed with the project; therefore it cannot be delayed in the event of adverse impact on areas of federal jurisdiction."

The federal government presented a third major argument, which was that the federal Administrator had no duty to act until such time as a description of the project was submitted to him, or until he had received a recommendation from the Evaluating Committee (which also could not act until it had received a project description).

In language that is not often heard from the Bench in a court of law, certainly not in describing a government, Judge Rouleau said that this argument was "entirely spurious". According to this idea, he said, the proponent of a project (in this case, Hydro-Quebec) could decide whether to submit his project to review, with no recourse available should he decide not to submit it. The judge called this conception "ludicrous". "It could not reasonably be seen to be the intention of the parties to the Agreement that the federal Administrator would be powerless to act without the intervention of the proponent. He cannot be left to the whim of the developer."

A fourth federal argument was that the federal government had delegated its powers to the province; but once again the judge found against the government, saying that this can be done only expressly, by statute, and this had not happened.The JBNQA had been ratified by statute, he said, and could only be amended with the consent of all parties.

Further, taking his authority from the Guerin case, which stated that where an Indian band surrenders its interest in land to the federal government, that government assumes a fiduciary obligation towards the band, he said that the rights and benefits given the Crees under the JBNQA "have been given in consideration for their signing the Agreement under which their traditional rights were extinguished." These include hunting, fishing and trapping, which are guaranteed, protected and given effect to by the environmental review procedures. In addition, the rights provided the Crees under the Agreement "are further protected by Section 35 (1) of the Constitution Act, 1982."

Towards the end of his judgment, Judge Rouleau returned to the question of the lack of federal powers under the EARP guidelines to stop any development, and added the stinging comment: "If one accepts the federal government's argument that it is willing to comply with its obligation towards the native people of this country, one is at a loss to understand its refusal to fulfil that original contractual obligation in the JBNQ Agreement.... The Agreement mandates the protection of the aboriginal people who relinquished substantial rights, in return for the protection of both levels of government."

He added: "16 years ago all parties obviously realized that there were areas exclusive to the federal domain which could be affected by any future development; that further development of Northern Quebec would certainly implicate the Inuit and Cree communities. As a result, the 1975 Agreement fully recognized that at some future date two jurisdictions would be involved, as well as the aboriginal people; all parties were cognizant of the necessity of reducing to writing a procedure for future co-operation. I find it incomprehensible that on the one hand the intervenors, the Attorney-General for Quebec, and Hydro-Quebec, declare themselves bound to abide by the JBNQ Agreement, but on the other hand other signatories to the same agreement are excluded."

The judge ordered the government signatories to the Agreement to implement the provisions of Sections 22 and 23 of the Agreement. His judgment was affirmed by the Federal Court of Appeal.

Thus, as a result of the Cree victory in this case, Hydro - Quebec, although ready to start building in 1991, reluctantly had to submit to a long process to establish guidelines for the review. Their building schedule was thrown into chaos, and the time was not only used by the Crees to enforce the legal provisions of the JBNQA, but was also used by them and their environmental allies in Canada and New England, to campaign against the Hydro-Quebec power contracts. The result of that campaign was that the major contracts were cancelled.

The guidelines for the assessment came up very, very demanding, mainly because the Aboriginal people were a force at what became known as the "scoping" meetings (that is, meetings to decide the scope of the guidelines), and they were strongly supported by such non-native organizations as the Canadian Arctic Resources Committee. When the agreed guidelines were announced, many people wondered how HQ could ever satisfy them. They included a provision for consultation with the people in the communities. Hydro-Quebec cobbled together a report containing 5,000 pages of studies done over the previous eleven years and did not bother with the mandatory community consultation.

This report went to the two evaluation committees established under the JBNQA, and the one committee established under federal environmental regulations. Hydro-Quebec's originally demanded a response to their 5,000 pages within 45 days. But it took the three committees about eighteen months just to consider whether the HQ assessment was in conformity with the guidelines.

In mid-November, 1994, all three committees unanimously came to the same conclusion: HQ's assessment was not in conformity with the guidelines.

HQ was ordered to go back to square one, and produce a real environmental assessment. The next afternoon, Jacques Parizeau, then Premier of Quebec, having lost his major New England contracts, and confronted with further delays while proper environmental and social assessments were carried out, pulled the plug from Great Whale, claiming (absurdly) that he had never been in favour of it anyway.

Although this worked out quite well from the point of view of the Crees, it does illustrate the immense problems aboriginals confront in trying to assert their rights, particularly when those rights clash with the development objectives of industry.

The Crees had to spend eight million dollars on their campaign to stop the Great Whale project.

(Mr. Justice Rouleau's decision is to be found in Cree Regional Authority et al. v. Attorney-General of Quebec (1991) 42 F.T.R. p 168. The Federal Court of Appeal decision is in (1991) 127 N.R. 52, 43 F.T.R. 240.)