The Grand Council of the Crees

Submission to the Standing Committee on Environment...

SUBMISSION OF THE GRAND COUNCIL OF THE CREES (EEYOU ASTCHEE)/ CREE REGIONAL AUTHORITY TO THE STANDING COMMITTEE ON ENVIRONMENT AND SUSTAINABLE DEVELOPMENT RELATING TO BILL C-65 AN ACT RESPECTING THE PROTECTION OF WILDLIFE SPECIES IN CANADA FROM EXTIRPATION OR EXTINCTION

Posted: 1996-12-01

The Grand Council of the Crees (Eeyou Astchee) and the Cree Regional Authority represent the James Bay Crees.

Our people, who number approximately twelve thousand (12,000), are the original and permanent inhabitants of the watersheds of James Bay and the Great Whale and nearby rivers in the southern Hudson Bay region. The James Bay Cree Nation includes Whapmagoostui, Chisasibi, Wemindji, Eastmain, Waskaganish, Nemaska, Waswanipi, Mistissini and Ouj?-Bougoumou.

This territory, including the coasts, islands, waters and sea beds of Hudson Bay and James Bay, is our traditional land and it is our home. We depend on this land for our subsistence and we continue to hunt, fish and trap as we have for thousands of years.

Hunting, fishing and trapping of wildlife species is at the heart of Cree society. A great number of Cree people depend on hunting, fishing and trapping for their subsistence.

In the early 1970's, the Quebec government proposed the development of huge hydroelectric projects on Cree territory without our consent. We opposed this development and went to court to stop the destruction of our lands. As a result, the Crees, Inuit, Quebec and Canada in 1975, entered into the James Bay and Northern Quebec Agreement (hereafter the "JBNQA"), which has been described as the first so called "modern" lands claim agreement and has been given effect and declared valid by the James Bay Northern Quebec Native Claims Settlement Act (s.c., 1976-77, 25- 26 Eliz.II, c.32) and An Act approving the Agreement concerning James Bay and Northern Quebec (s.c., 1976, c. 46).

One of the fundamental undertakings made to the Crees by both Canada and Quebec, in this Agreement, was that our use of Eeyou Astchee and our traditional way of life based on hunting, fishing and trapping would be forever protected.

To this end, section 24 of the Agreement provides for the establishment of the Hunting, Fishing and Trapping Coordinating Committee (the Coordinating Committee). This committee is an expert body constituted under subsection 24.4 of the JBNQA. Its main purpose is to review and manage the Hunting, Fishing and Trapping Regime established under section 24 of the JBNQA and section 15 of the Northeastern Quebec Agreement.

The Coordinating Committee is made up of representatives from the Government of Canada, the Government of Quebec, the James Bay Crees, the Inuit of Quebec and the Naskapis of Quebec.

Under the Hunting, Fishing and Trapping Regime, the Crees have the exclusive right to harvest wildlife over territories known as Category I and II lands and also have extensive hunting, fishing and trapping rights in the rest of the James Bay and southern Hudson Bay Territory designated as Category III lands. Harvesting includes the right of Crees to hunt, fish and trap for personal and community subsistence purposes, and for commercial purposes related to the fur trade and commercial fisheries. Apart from this treaty right, the Cree have an Aboriginal right to hunt, trap and fish within Quebec as well as on certain portions of the Northwest Territories, Ontario and Labrador.

The rights of Crees to harvest under the JBNQA are rights entrenched under section 35 of the Constitution Act, 1982, which recognizes and affirms the rights set out in such treaties, as well as Aboriginal rights. As such, these right have priority over all inconsistent Federal and Provincial legislation.

The Cree people believe strongly in the merits of the Canadian Endangered Species Protection Act and support Federal legislation aimed at the protection of wildlife species at risk, and the prevention of indigenous wildlife Canadian species from becoming extirpated or extinct as a consequence of human activities.

However, while we support the spirit and intent of the proposed legislation, it is important to resolve any conflicts or ambiguities with respect to the Cree right to harvest and other rights guaranteed under the JBNQA before Parliament adopts the legislation.

The right to harvest is fundamental to Aboriginal life and is one of the most important inherent Aboriginal rights. The Cree people recognize the pursuit of the optimum natural productivity of all living resources and the protection of ecological systems of the Territory, so as to protect endangered species and to ensure primarily the continuance of the traditional pursuits of Aboriginal peoples.

To this end, the right of the Cree to harvest, as set out in section 24 of the JBNQA, is limited by the principles of conservation.

Specifically, paragraph 24.2.1 states:

"The Hunting, Fishing and Trapping Regime established by and in accordance with this Section shall be subject to the principle of conservation."

The term "conservation" is defined in section 24 of the Agreement as meaning
"the pursuit of the optimum natural productivity of all living resources and the protection of the ecological systems of the ?territory so as to protect endangered species and to ensure primarily the continuance of the traditional pursuits of the native people, and secondarily the satisfaction of the needs of non-Native people for sport hunting and fishing."

As well, paragraph 24.3.2 provides as follows:

"Every Native person shall have the right to harvest any species of wild fauna except species requiring complete protection from time to time within the territory to ensure the continued existence of such species or a population thereof."

We understand these provisions ensure that Cree rights shall supercede non-native hunting privileges.

Furthermore, paragraph 24.5.1 of the Agreement specifically provides that "in categories I and II, matters relating primarily to the protection of wildlife resources, rather than harvesting activity and hunting and fishing by non-natives shall be solely the jurisdiction of the responsible Provincial or Federal Governments."

Yet, while legislation aimed at the protection of wildlife species is within the Federal Government's legislative capacity, we draw attention to paragraph 24.5.2 which underlines the obligation of the federal government to consult with the Coordinating Committee in the specific context of wildlife protection measures:

"25.5.2 In Categories I and II, the responsible Provincial and Federal Governments shall exercise their powers with respect to matters referred to in paragraph 24.5.1 [protection of wildlife resources] in the same manner as those powers are exercised with respect to Category III, namely they shall exercise those powers only upon the advice of or after consulting with the Coordinating Committee as the preferential and exclusive spokesman empowered to formulate procedures, recommendations, positions and respecting these matters."

We understand these provisions to ensure us a constitutionally protected right to be consulted on those matters relating to, for example, the designation of species at risk and the creation and implementation of recovery and management plans.

Other provisions of the JBNQA relevant in the context of the Act are set out in section 22 of the JBNQA which provides a mechanism to review proposed developmental activities, in the Territory, to determine what significant impact the proposal may have on wildlife resources of the Territory.

Most significantly, paragraph 22.3.1 provides for the establishment of the James Bay Advisory Committee on the Environment (the JBACE) "to review and oversee the administration and management of the environmental and social protection regime established by and in accordance with this section." Specifically paragraph 22.2.2(d) states that the regime provide for "the protection of the Cree people, their economies and the wildlife resources upon which they depend."

Similarly, paragraph 22.2.4(d) provides that the responsible governments and the agencies, such as the JBACE, created in virtue of section 24, shall have regard to such guiding principles as "the protection of wildlife resources, physical and biotic environment, and ecological systems in the Territory with respect to developmental activity affecting the Territory."

It is our understanding that section 22 guarantees the Cree people , via the JBACE, the right to be consulted in regards to proposed developmental activity in the territory. In this regard, paragraph 22.3.28 states that the JBACE "shall be consulted from time to time on major issues respecting the implementation of the regime of the environmental and social protection and land use measures and may advise responsible concerned governments on the implementation of the environmental and social protection and land use regimes."

In particular, we wish to draw your attention to paragraphs 22.5.13 and 22.5.14 which delineate the requirement that proposed developments, in the territory, be subject to some form of assessment and review by various environmental and social impact committees on which the Crees participate. In this respect, the relevant portions of paragraphs 22.5.13 and 22.5.14 provide as follows:

"22.5.13 In the case of a development not contemplated in paragraphs 22.5.1 and 22.5.2, the Evaluating Committee shall determine if the proposed development may have a significant impact on the Native people, or on the wildlife resources of the Territory (...).

22.5.14 In the case of all developments subject to assessment and review pursuant to paragraph 22.5.1 or 22.5.13, the Evaluating Committee shall recommend the extent of impact assessment and review and whether or not a preliminary and/or final impact statement should be done by the proponent."

Once again, we wish to stress that the Cree people support the spirit and intent of Bill C-65. Our point is that Parliament must ensure that any such legislation it adopts is compatible with the Aboriginal and treaty rights of the Crees of Eeyou Astchee.

We therefore suggest seven (7) integral amendments to the Bill which will both strengthen the positive impact of the legislation and bring it online with the rights guaranteed under the JBNQA.

First, we encourage the Federal government to broaden the scope of application of the legislation to all of Canada.

As the legislation presently stands, its application is limited to only "federal lands". However, the protection of species at risk against human activities is predominantly extra-provincial as well as international in its implications, and therefore a matter of concern to Canada as a whole. Accordingly, the subject matter of the legislation has attained a national importance and a degree of singleness, distinctiveness and indivisibility that distinguishes it from other matters of strictly a provincial dimension.

Reliance on shared federal and provincial coordination efforts for the enforcement and management of wildlife is a far less effective means of achieving conservation of wildlife resources objectives. To date, only four (4) provinces have passed endangered species legislation, namely New Brunswick, Quebec, Ontario and Manitoba, and enforcement under those laws has been almost non-existent. Moreover, provincial laws cannot ensure protection of species that range beyond their borders.

Therefore, it is crucial that the Federal government take a leadership role in protecting all trans-boundary species. This can be achieved by extending application of the Act to all of Canada by means of the Federal government exercising its residual power of Peace, Order and Good Government, as provided for in the preamble to section 91 of the Constitution Act, 1982.

Second and in the alternative, as the legislation applies to all "reserve" lands under the meaning of the Indian Act, the legislation should likewise be extended to apply to Category IA lands covered under the JBNQA as it is unclear whether the Act, as it is presently drafted, applies to Category IA lands. Amending section 2 of the Act by adding that "federal lands" includes Category IA lands would remove any ambiguity and would be congruent with the Cree-Naskapi (of Quebec) Act (32-33 Elizabeth II, Ch.18).

Third, the legislation should be amended to include a provision requiring the responsible Federal Minister to obtain the advice of or consult with the Coordinating Committee prior to listing a species at risk in the James Bay and Northern Quebec Territory.

The consultative role of the Coordinating Committee, as the preferential and exclusive spokesman empowered to formulate procedures, recommendations, positions and views, respecting the determination of species requiring protection, is an important treaty right and explicitly provided for under paragraph 24.5.2 of the JBNQA. It is obvious that any legislation that purports to designate and list species at risk, in the James Bay and Northern Quebec Territory, without first obtaining the advice of or after consultation with the Coordinating Committee is in contradiction with Cree treaty rights and, in our opinion, unconstitutional.

Fourthly, we suggest that the legislation be amended to include a provision requiring the responsible minister to prepare management plans in consultation with any affected wildlife management board that is established under Aboriginal land claims legislation.

Paragraph 24.5.2 of the Agreement specifically contemplates a consultative or advisory capacity of the Coordinating Committee in regards to the regulation and management of wildlife insofar as this concerns the protection of wildlife resources in the territory.

Moreover, the Federal Government has already clearly acknowledged the need and requirement of the responsible Minister, in carrying out his/her legislative duty, to prepare recovery plans for those species designated as endangered or threatened, to consult with any wildlife management board that is established under Aboriginal and claims legislation and is affected by the plan (section 39 of the Act). Accordingly, a similar provision must exist in relation to the preparation of management plans, as set out in section 45 of the Act.

Fifth, the Act must be amended to strengthen the role Aboriginal peoples shall have in the identification, understanding, management and recovery of species at risk. This can be achieved through a variety of measures.

Specifically, the Act should be amended to allow Aboriginal peoples standing on both the Canadian Endangered Species Conservation Council (the Council) and the Committee on the Status of Endangered Wildlife in Canada (COSEWIC). The Council is to assist the federal minister in appointing members of COSEWIC, and provide general direction on the activities of COSEWIC and on the development and implementation of recovery plans (section 12(3) and 13(2)).

COSEWIC is the official body which will review the status of species and designate species it considers to be at risk. As well, decisions of COSEWIC must be based on a status report which must identify the critical habitat of the species and evaluate existing potential threats to the species and its critical habitat (section 20).

Although traditional knowledge is listed as a potential area of expertise for gaining membership on COSEWIC, this is by no means firmly establishes traditional knowledge as an integral component in the decision making process. Implicit in the Act is recognition of the value of Aboriginal and traditional knowledge of the principles of sustainable development, ecosystem management and the protection and recovery of species at risk. However, the Act must go further to entrench the contribution Aboriginal peoples can make to the protection of species at risk.

It is in this vein that we recommend that sections 12 and 14 of the Act be amended to require Aboriginal representation on the Council and COSEWIC, respectively. Only by so doing can the Federal government ensure that Aboriginal and traditional knowledge and information be properly understood and considered by the Council and COSEWIC in the deliberations and decisions to designate and list species at risk.

Moreover, we recommend that the Preamble of the Act be revised to give recognition to the important role of Aboriginal peoples in the identification, understanding, management and recovery of species at risk.

We understand the foregoing suggested amendments to be consistent with the role accorded to the Coordinating Committee under section 24 of the JBNQA which, as previously indicated, guarantees a participatory role to the Coordinating Committee concerning either the Federal or Provincial government's exercise of their authority to regulate and manage wildlife resources in Category I and II lands.

Sixth, we request that the legislation allow for an advance environmental and social impact review, as established under section 22 of the JBNQA, in regards to developmental projects and activities, that may affect an endangered or threatened species or its habitat in the James Bay and Northern Quebec Territory and for which a person has applied under the Act for an agreement, exemption permit or similar authorization.

Sections 46 and 47 of the Act provide for an exemption from the prohibitionary provisions, contained in section 32 and 33, through agreements made by the responsible minister or through permits issued by the responsible minister. Such agreements or exemption permits can only be granted where the responsible minister is satisfied that feasible mitigating measures have been adopted to minimize, as far as possible, the adverse impact on the species in question or its habitat.

However, we understand the provisions of section 22 of the Agreement to guarantee to the Committee the right to determine the potential impact, of developmental activities in the Territory on the Native people or on the wildlife resources.

Accordingly, it is imperative that the exemption mechanism provided for in sections 45 and 46 of the Act be harmonized with the Environmental and Social Protection Regime established in section 22 of the JBNQA. This can best be achieved by amending sections 46 and 47 by adding a provision requiring that, in the case of proposed projects and activities on territory covered by the JBNQA, for which an agreement or an exemption permit is sought, information respecting the said activity be submitted first to the Federal Administrator of the JBACE for environmental and social impact review of the project by the appropriate treaty committees prior to the granting of such permits by or the entering into agreements with the responsible minister.

The government may attempt to assure us that the changes we seek are unnecessary in light of subsection 2(2) of the Act, which states that "for greater certainty, nothing in this Act is to be construed so as to abrogate or derogate from any existing aboriginal or treaty rights of the aboriginal peoples of Canada under section 35 of the Constitutional Act, 1982."

However, Bill C-65, as it presently is drafted, is unconstitutional insofar as it violates certain Cree Aboriginal and treaty hunting, fishing and trapping rights, land use rights and rights in regards to the environmental and social protection regime. The amendments we propose are therefore essential to the legislation's legality in this respect and, as matters of principle, should be expressly articulated in the Act.

In concluding, we hope that the committee members recognize the spirit of compromise in which these amendments have been proposed. Our people are mindful of the importance of strong legislation designed to protect and preserve endangered wildlife resources throughout Canada. These amendments in no way undermine Parliament's aim and commitment to provide legal protection for wildlife species at risk. Far from it. They will, in fact, further that aim by entrenching the role of Aboriginal peoples in the conservation of wildlife in this country and ensuring that Aboriginal rights under the JBNQA are respected.

Schedule of Additional Amendments

1. The Listing Process

COSEWIC's role is to be advisory, leaving final decisions on listings in the hands of politicians. Decisions on species at risk should be left to COSEWIC and it should be stated in the Act that COSEWIC is to operate at arm's length from the government. Alternatively, any decisions on the composition of the list made by the minister which are not parallel to COSEWIC recommendations should be subject to public review.

Section 3(2), which limits application in the provinces of sections 30 (listing) should be amended so all species that are nationally endangered are placed on the List of Wildlife Species at Risk. The list of species at risk must include all species whether under federal jurisdiction or not. This is necessary to ensure greater harmonisation of the Act with the provinces and to facilitate voluntary efforts by individuals, landowners, conservation organizations, etc.

2. Protection of Species Listed

a) Direct harm to species and their homes

The definition of "residence" must be clarified in the Bill. Residence is defined in Bill C-65 as "a specific dwelling place, such as a den, nest or other similar area habitually occupied by an individual during all or part of its life cycle". It is unclear from this definition whether breeding grounds for species that do not build or use shelters (e.g., calving grounds for caribou) will be protected. The Act could be interpreted either to include or exclude such breeding grounds. The definition of residence must include the breeding habitats for species that do not use a specific den or nest site. Furthermore animals require more than a place to reside and breed. The prohibitions should be strengthened to protect areas where animals range.

The automatic prohibitions of the Act should be extended to apply to extirpated species as well as endangered and threatened species.

Bill C-65 fails to adequately prohibit "disturbance" of species and their residences. Rather, it prohibits "harassment" of species or "damage" of residences. The Act must be amended to prohibit disturbance of species or their residences.

b) Recovery Plans and Habitat Protection

The Act makes no specific reference to recovery or habitat protection in national parks and wilderness areas. The Act should include a provision requiring the automatic protection of critical habitat of endangered, threatened and vulnerable species in national parks.

The Act states that the technical and biological feasibility of a species' recovery is to be determined by the responsible Minister based on the advice of COSEWIC. The Act should clearly specify what constitutes "technical" unfeasibility, and should require that a cost-benefit analysis of recovery measures be included in the recovery plan of species whose recovery is determined to be technically unfeasible.

Recovery plans have no legal force, they are merely non-binding plans. The Act should require that the government implement the protection measures called for in a recovery or management plan, including protection of species' habitat.

c) Exemptions

The Act includes an extremely broad automatic exemption for any activity undertaken for the protection of national security, safety or health, including plant and animal health. Under section 36(a), there is no requirement even to minimize impacts to the species or to ensure that the species is not wiped out. Nor is there any requirement to register such exemptions in the public registry. This automatic exemption is far too broad. It would allow military weapons testing to occur in an area that housed the last members of an endangered species. There is no reason why such activities cannot go through the normal exemption permitting process established under section 46, including the requirement to mitigate impacts. The Task Force recommended that automatic exemptions be given only in emergency situations, when necessary. Other than in such emergency situations to protect life or safety, there is no reason for a blanket exemption--such a provision prevents any possibility of balancing the needs of the species against the reasons for the activity (military reasons, protection of plants or animals from pests, etc.).

d) Emergency Protection

Emergency protection orders should be based on COSEWIC's ability to designate species at risk (see section 1). Once COSEWIC designates an emergency listing, an interim protection order should be automatic.

4. Advance Review

Under Bill C-65, most development projects affecting species at risk and their habitat will not undergo advance review. This is because most development projects affecting species at risk (e.g., logging, pesticide spray, wetlands filling) are not currently subject to environmental assessment under existing federal legislation, and Bill C-65 does not create any new environmental assessment requirement.

The Bill, and the Canadian Environmental Assessment Act, should be amended to provide that all projects which will affect a listed species at risk or its habitat must undergo environmental assessment before proceeding.

5. Citizen Enforcement Action

The Bill should be amended to provide (i) that a citizen may bring an enforcement action, without waiting for an investigation, any time there is an imminent threat of significant harm to an endangered or threatened species or its habitat (this is like Ontario's law); (ii) that, in non- emergency cases, a citizen may have access to injunctive relief any time they are not satisfied with the government's response to their investigation request.

6. Administration

The Act states that the responsible minister may authorize any person or governmental body to perform or excerise any of the Act's functions (6. (2)). The Act also allows the minister to enter into agreements with other provinces or countries with respect to conserving species at risk and protecting their habitat (7.(2)). This should be amended to state that where Aboriginal peoples are concerned--either through lands classified as Indian, management boards established under treaty, land claim, self-government or co-management agreement--their approval must be sought prior to the delegation of authority of the Act.