The Grand Council of the Crees

Mario Lord et al. v. The Attorney General of Quebec et al.

Mario Lord et al. v. The Attorney General of Quebec et al. Cree Forestry Litigation Checklist of Positions taken in the Proceedings by Plaintiffs

Posted: 0000-00-00

Mario Lord et al. v. The Attorney General of Quebec et al.

Cree Forestry Litigation

Checklist of Positions taken in the Proceedings

by Plaintiffs

1. The Cree Plaintiffs are suing without prejudice to other legal proceedings before the Superior Court and the Federal Court notably Grand Chief Matthew Coon Come et al. V. Hydro-Quebec et al. (Coon Come #1 Superior Court) and Chief Abel Bosum et al. v. The Attorney General of Quebec (Superior Court), Grand Chief Matthew Coon Come et al. V. Her Majesty the Queen et at. (Federal Court), Cree Nation et ad. v. Her Majesty the Queen (Federal Court) and Chief Abel Bosum et al.. v. Her Majesty the Queen in Right of Canada (Federal Court).

2. The Cree Plaintiffs sue on the basis of Aboriginal rights to forestry resources and treaty rights under the James Bay and Northern Quebec Agreement (hereinafter "JBNQA"), including the system of Cree hunting territories under the responsibility of the Ndoho Quchimauch.

Forestry System of Quebec and Forestry Operations prior to the JBNOA

3. Prior to the execution of the JBNQA, Cree Plaintiffs and their ancestors had and exercised Aboriginal rights respecting the forest and forestry resources in Eeyou Istchee. Prior to the JBNQA Cree rights were a federal not a provincial responsibility.

4. Cree Aboriginal rights take precedence over and condition Quebec legislation and any grants under that legislation regarding the forests, forestry resources and lands.

5. Quebec legislation relating to the forest, the forestry resources and lands in Eeyou Istchee is constitutionally null and void or inapplicable.

6. In 1974 the land allegedly allocated to forestry companies for forestry operations in Eeyou Istchee was approximately 24,000 square kilometres.

7. Prior to 1975, certain of the Defendant forestry companies, notably Defendants Domtar Inc., Produits Forestiers Donohue Inc., Kruger Inc., Abitibi-Consolidated Inc., Forex Inc., Bisson et Bisson Inc., Howard-Bienvenue Inc. and Compagnie Internationale de Papier du Canada carried out forestry operations and activities and exploited the forestry resources of Eeyou Istchee illegally and in breach of the rights of Plaintiffs and caused extensive damages to Plaintiffs.

8. Prior to the Agreement-in-Principle (hereinafter "AIP") of November 15, 1974 and the execution of the JBNQA, most cutting took place to the south of Eeyou Istchee and did not extend north of the 50th parallel of latitude. At this time, the area north of the 50th parallel of latitude was considered as not being an area where significant, forestry operations could take place on a commercially viable basis.

9. Consequently no major forestry operations or activities were contemplated for the area north of approximately the 50th parallel of latitude and this was the understanding of the James Bay Crees at the time of the AIP and the JBNQA.

10. At the time of the AIP and the JBNQA, the parties understood that forestry activities and operations in Eeyou Istchee would be controlled and planned and would respect Cree priority use of the land.

The Agreement-in-Principle of 1974

11. The AIP contemplated the reconciliation of forestry operations with the meaningful exercise of Cree rights and interests, the continuation of the hunting territory and trapline system and the protection of the forestry resources.

12. Forestry operations in Eeyou Istchee under the AIP were conditional upon such operations being or being made compatible with Cree rights and interests.

The James Bay Northern Quebec Agreement, 1975

13. The JBNQA is a treaty, the spirit and intent and fundamental purpose of which was to ensure the continuation of and to guarantee of the way of life, culture, values and traditions of the James Bay Crees while providing for a measured use of the natural resources to be done in strict conformity with a fully implemented JBNQA and in accordance with the guiding principles in the JBNQA.

14. The conditions under which the Crees consented to the JBNQA was that they could indefinitely continue, if they so wished, their traditional way of life, that they retained their Aboriginal rights and that they obtained treaty rights over the land, forests and other natural resources.

15. The JBNQA, in accordance with the AIP, contemplated

(a) the reconciliation of forestry operations with the meaningful exercise of and respect for Cree rights and interests respecting the land and the natural resources,

(b) the continuation of the hunting territory system and the Cree trapline system within the meaning of the JBNQA,

(e) the protection of the forestry resources,

(d) the participation of the James Bay Crees in economic development of the forestry resources and

(e) the priority of Cree rights over incompatible federal and provincial legislation.

16. Certain aspects of the hunting, fishing and trapping regime under Section 24 are invoked including the priority of native harvesting, guaranteed levels of harvesting and exclusive rights to fur-bearing animals and other species and the Cree priority use of the forest.

17. The protections afforded by the environmental regime under Sections 22 and 23 are invoked requiring all activities including forestry activities which might affect the rights of the Crees to be subject to social and environmental assessment and review.

18. The land regime under Sections 4 and 5 is invoked and it is stated that the operations of the Defendant forestry companies are taking place on Category II and Category III lands.

Rights under the JBNQA and related legislation and the Constitutional and Trust Obligations

19. The proceedings state that the rights of the Crees under the JBNQA are constitutionally protected treaty rights and arc the treaty confirmation of existing Aboriginal rights and Defendants Quebec and Canada have trust or fiduciary obligations to ensure the preservation and protection of the rights of Plaintiffs.

The JBNOA. Forestry Activities and the Reconciliation of Competing Interests

20. At the time of the signing of the JBNQA, the intentions of the parties and the solemn promise of Canada and Quebec were that the Crees would be entitled to continue their activities, practices and traditions and that;

a) the Crees would have priority respecting the use of the land and natural resources required to continue their livelihood and way of life and that this would take precedence over any incompatible use of Eeyou Istchee;

b) the Cree hunting territory and trapline system would be maintained and enhanced through a systematic reconciliation of Cree traditional pursuits and any other exploitation of Eeyou Istchee;

c) land use plans would be made compatible with the interests of Cree communities; and

e) the Crees would, as a minimum, be consulted and participate in a significant manner in respect to legislation, regulations, policies and operations relating to forestry in Eeyou Istchee, including in relation to Forestry Management Plans.

The Quebec Forestry System after the JBNQA

21. It is stated that the Forest Act incorporating the CAAF system has breached and continues to breach the Aboriginal and treaty rights of Plaintiffs as have the Act respecting Lands in the Public Domain and the amendment made to the Environmental Quality Act to exclude forestry development from impact assessment.

Forestry Operations after 1975

22. It is stated that the amount of land in Eeyou Istchee allocated to Defendant forestry companies exceeded approximately 54,000 sq. km as of December 1994 and as of 1996 some 9,400 sq. km of this land had been clear-cut despite the objections and protests of Plaintiffs.

23. It is stated that Defendant forestry companies have constructed forestry roads interfering with the rights of the Crees, have constructed forestry camps, land or base camps, have conducted forestry operations in Eeyou Istchee since 1975 in breach of Plaintiffs? Aboriginal and treaty rights and have caused extensive damage to Plaintiffs while benefiting from the proceeds of the forest of Eeyou Istchee in amounts which total in the billions of dollars.

24. In spite of these violations of rights, culture, practices, traditions and livelihood of the Plaintiffs and the violation of international law and the Crees? rights under international law, the Crees have received little or no monetary benefit from the resource extraction.

Constitutional Inapplicability of Quebec Laws on Forestry to Eeyou Istchee

25. The Forest Act, the Act respecting Lands in the Public Domain and all regulations thereunder are constitutionally inapplicable to the Crees and to Eeyou Istchee and all authorizations under this legislation including the CAAFs and all activities of the Defendant forestry companies contravene section 35 of the Constitution Act, 1982, the provisions of the JBNQA and its legislation and the trust or fiduciary obligations of Quebec and Canada.

26. The purported exemption of forestry development from environmental impact assessment breaches the Crees? rights to harvest and to participate an environmental and social impact assessment.

27. Quebec and the forestry companies have not obtained the consent of the Crees

28. The James Bay Regional Development Act is inoperative to the extent that it conflicts or interferes with the Aboriginal and treaty fights of Plaintiffs.

General Effect of Forestry Activities on Rights of? Plaintiffs

29. The rights of the Cree Plaintiffs particularly the right to hunt, fish and trap (harvest) are highly dependant on the protection of wildlife, wildlife habitat, and forests, The JBNQA requires that any forestry operations be made compatible with the effective exercise of Cree rights.

30. The Defendants have breached Cree rights in that they have not made forestry operations subject to environmental and social impact assessment and review

Effects of Defendant Forestry Companies? Activities on Plaintiffs and Plaintiff?s Hunting Territories

31.The forestry operations and activities of Defendant forestry companies in Eeyou Istchee have detrimentally affected the wildlife habitats and activities of Plaintiffs and breached the hunting, fishing and trapping (harvesting) rights and the other rights of Plaintiffs, notably in that past, present and contemplated commercial cutting operations by Defendants companies in Eeyou Istchee and on the hunting territories of Plaintiffs:

a) involve particular:

i) logging practices which inadequately reflect the growth rate of northern forests;

ii) logging practices which fail to reflect adequate rates of stocking following clear-cutting;

iii) the improper construction, use and abandonment of roads and camps;

iv) inappropriate operation of heavy equipment which results in major soil disturbance and a deterioration of regeneration conditions; and

v) the influx and presence of a substantial work force with its associated detrimental social consequences and impact on public safety, such as dangers associated with increased road traffic;

b) result in severe negative social, economic and environmental impacts on the harvesting activities of Plaintiffs, including:

i) interruption and disruption of harvesting by Crees due to actual or virtual eviction from large portions of their hunting territories and traplines during cutting and during the variable periods of time required for regrowth after clear-cutting or extensive cutting;

ii) cutting of much of the productive habitat in certain hunting territories and traplines. resulting in severe social and economic effects for the individual Crees dependent thereon;

iii) changes in harvested species and biological diversity after clear-cutting or extensive cutting;

iv) the development of forestry roads increasing accessibility to Eeyou Astchee, which in turn makes wildlife an easier target for sport hunting and fishing;

v) disturbance to Crees and wildlife by reason of noise in the operation of heavy machinery and otherwise resulting in the absence or reduced presence of large and small game animals, furbearers and waterfowl;

vi) excessive disruption of moose winter habitat and shelter;

vii) erosion and consequent deterioration of water quality and diminishing growth and health of wildlife habitat;

viii) deposit of contaminants into waterways;

ix) forestry practices which degrade soil productivity:

x) interference with natural flow in streams and rivers, mainly through inadequate culverts, disturbing fish migration and reducing and changing fish populations;

xi) interference with access to navigable waters at certain camps resulting from the use of undersized culverts and from fallen trees;

xii) disturbance of and inadequate protection for fur-bearing aquatic animals, including beaver and muskrat, and their habitat;

xiii) disturbance of terrestrial fur-bearing animals, including marten, and destruction of their habitat;

xiv) disturbance of waterfowl and destruction of their habitat;

xv) reduced availability of firewood and increased wind chill exposure at and around camps on hunting territories and traplines, rendering them unfit or less fit for the pursuit of harvesting activities:

xvi) theft and vandalism at camps and caches to equipment and material necessary for harvesting, including snowmobiles, canoes, snowshoes, firearms, axes, kitchen and cooking ware and paddles;

xvii) unrestricted public access to a vast network of forestry roads with its associated negative side effects and clash between different cultures;

xviii) as a result of all the above, disruption of the social and economic base of the Crees? communal harvesting practices, including the system of reciprocal invitations on to hunting territories and traplines, the redistribution networks for harvested food within the communities, and the overall supply of harvested food, leaving Plaintiffs with no alternative activity and causing a negative change to their diet;

xiv) inadequacy of buffer strips;

xx) inconsistent and inappropriate application of the principle of sustainable yield of timber supply as formulated in the Forest Act;

xxi) all Ndoho Quchimauch Plaintiffs are consequently no longer able to suitably manage their hunting territories; and

xxii) forestry activities force individual Cree Plaintiffs listed in the proceedings to travel further away from their hunting territories in order to carry on their traditional pursuits, resulting in more time being dedicated to travel, higher fuel costs and shorter life of and more frequent breaks in equipment.

c) have deprived the Crees of the use of and benefit from the forestry resources of Eeyou Istchee and constituted an illegal expropriation or appropriation thereof without compensation.

Social and Environmental Issues

32. All forestry projects in Eeyou Istchee are subject to the environmental andsocial impact assessment and review procedures provided in Section 22 of the JBNQA and federal and provincial impact assessment and review. This has not been done and Defendants are in breach of the JBNQA and of their trust, fiduciary and administrative obligations to properly consult the James Bay Advisory Committee on the Environment.

33. Defendants are also in breach of the Environment Quality Act Chapter 11 and of Section 22 of the Act The forestry activities in Eeyou Istchee violate the Crees? rights to a healthy environment and to its protection and to the protection of the living species in it contrary to Section 19.1 of the Environment Quality Act.

Federal Processes in addition to the specific JBNQA Process

34. All forestry operations conducted between June 21, 1984 and January 19, 1995 were subject to the Environmental Assessment and Review Process Guidelines Order (CARP), but Canada refused to implement EARP.

35. Present and proposed forestry operations are subject to the environmental and social assessment procedures set out in the Canadian Environment Assessment Act (CEAA) but Canada has refused or failed to implement the CEAA with respect to forestry operations in Eeyou Istchee.

Subsidiarily. Breaches of Quebec legislation ? An Act resecting the Lands in the Public Domain, the Forest Act and Regulations thereunder

36. It is further argued that Quebec and the forestry companies have breached the requirements of the Quebec Forest Act and An Act respecting the Lands in the Public Domain by failing to properly consult the Crees as required by this legislation. However, this argument is made subject to the Cree position that the Quebec legislation is constitutionally inapplicable and without prejudice to the rights and recourses of the Crees already mentioned.

Special Status

37. The special statue for the Crees provided in Section 22 of the JBNQA is not respected by the Forest Act.

The Forestry Resource Development Agreements (FRDA) and the Economic Regional Development Agreements (ERDA)

38. These agreements were entered into in the manner that breached the JBNQA and the obligation to protect Aboriginal and treaty rights of the Crees.

Navigable Waters Protection Act

39. The forest companies did not obtain the necessary approvals required under this Act and Canada has failed to enforce the Act.

Breach of Trust or Fiduciary Obligations by Defendants Canada and Quebec

40. Canada and Quebec have trust and fiduciary obligations towards the Crees to ensure the preservation and protection of their Aboriginal rights and their treaty rights under the JBNQA in respect of the forestry resources of Eeyou Istchee. They have breached these obligations.

Relief

41. The Cree Plaintiffs are entitled to an injunction to stop all forestry activities in Eeyou Istchee.

42. The Cree Plaintiffs are entitled to claim from Defendants the net value of the forestry resources already extracted from Eeyou Istchee. Damages of at least $300 million are claimed from all the Defendants together.

43. The Cree Plaintiffs are entitled to claim damages under the Tree Protection Act in the amount of $200 per tree cut since November 11, 1975.

44. The Cree Plaintiffs are alternatively entitled to specific performance by the Defendants of their obligations under the JBNQA and to restoration of the environment of Eeyou Istchee.

45. Defendants Canada and Quebec have breached their trust or fiduciary obligations to the Crees and the Cites are entitled to a further amount of at least $200 million.

46. The Court is asked to make the appropriate declarations in accordance with the above, an order forcing Defendants Canada, Quebec, the Federal and Provincial Administrators and the Ministers to perform their duties respecting the Aboriginal and treaty rights of the Crees and all applicable legislation and to order Canada and the Minister of Indian and Northern Affairs and Quebec to carry out their trust or fiduciary obligations to the Crees.

47. The Court is ordered to declare null the decision of Quebec to execute CAAFs described in the action and to prohibit Quebec from executing further CAAFs.

48. The Court is asked to issue a permanent injunction against the Defendant forestry companies preventing them from carrying out any work relating to forestry activities on Eeyou Istchee without the consent of the Cree Plaintiffs and subsidiarily to submit all present and proposed forestry activities to environmental impact assessment and review under the JBNQA and the Environment Quality Act.

49. The Court is asked to condemn Defendants to damages in the amount of $300 million in respect of forestry resources already extracted from Eeyou Istchee us well as exemplary damages of $200 per tree cut since November 11, 1975 and finally to condemn Canada and Quebec to pay Plaintiffs the additional amount of $200 million for breach of trust or fiduciary obligations.