Forestry fiasco drags on while Crees go hungry

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The 12,000 member of the James Bay Crees had reason to celebrate Dec. 20 when Justice Jean-Jacques Croteau of the Quebec Superior Court heard a motion and handed down a decision upholding Cree rights under the James Bay and Northern Quebec Agreement (JBNQA).

As a result of his decision, 27 logging and forestry products companies sent a letter to the judge asking him to recuse [disqualify] himself from hearing the main case that is still pending (Mario Lord et al. v. The Attorney General of Quebec et al). The judge refused.

The next move by those aligned against the Crees was to file a motion to have the judge removed.

Associate Chief Justice Deslongchamps was not amused, one of the Crees' lawyers said, that the opposition only served notice of their intent to the Cree side after 11 p.m. on the evening before the matter was to be brought into court. The motion was referred to Chief Justice Lise Lemieux, who heard pleadings for a day and a half, Feb. 16 and 17. Her decision on whether Justice Croteau will continue to hear the forestry case was still pending at press time.

The Crees have filed many pages of complaints since the summer of 1998 and they all come down to one thing: Forestry operations are rapidly clear-cutting Quebec's forests to death, and with that the Indians' traditional way of life. Judge Croteau apparently saw it that way too.

The forestry companies were joined in December by the governments of Canada and Quebec to oppose the Grand Council of the Crees, which was trying to get the court to enforce the JBNQA requirement for an environmental review of Quebec's five-year and 25-year forestry plans. As signatories to the JBNQA, the provincial and federal governments could be expected to perceive themselves in a conflicted position, but apparently they did not.

That motion put forth by the Crees was heard Dec. 6 to 10 in Montreal. Judge Croteau not only decided in the Crees' favor but said Quebec's Forest Act contravened Cree rights that are enshrined in the JBNQA. He said these rights are protected by the Canadian Constitution, which takes precedence over other laws such as the provincial Forest Act. He said further that the forestry operators were violating the Crees' constitutional rights and they had until July 1 to bring their forestry practices into line with the JBNQA.

If they don't, the Crees could shut down forestry operations on their territory.

"The thing has gotten very complicated," Grand Chief Ted Moses said on behalf of the Grand Council of the Crees [Eeyou Istchee]. "Because it involves a 25-year forestry management plan and a five-year forestry management plan. Under the Quebec forestry act, they have to submit those to the minister by the first of April, otherwise the permits don't get renewed. What we're saying is 'listen, wait a minute. The forestry activities are conducted in the territory contemplated under the James Bay and Northern Quebec Agreement - there is a regime.' And that these forestry operations are therefore subject to a full environmental and social review under the regime set up in the agreement."

Specifically, the Crees have accused the companies of using 1987 amendments to the Forest Act, along with the Act respecting Lands in the Public Domain, to circumvent Aboriginal and treaty rights, in direct contravention of the JBNQA. In addition, the Crees' main case states that an amendment made to the Environmental Quality Act is being used to exclude forestry operators from impact assessments.

Their view is that business interests have worked hand in glove with provincial legislators to get laws changed so forestry operations can proceed without regard to Native rights, even though the JBNQA states, according to the unofficial English language translation of Justice Croteau's decision, that amendments to Section 22 of that agreement are prohibited.

"Quebec may not unilaterally abrogate or amend the provisions of Section 22 through its legislation." Subparagrap 22.7.10 says Section 22 can only be changed with the "consent of Canada and the interested Native party in matters of federal jurisdiction, and with the consent of Quebec and the interested Native party, in matters of provincial jurisdiction."

Justice Croteau pointed out that the JBNQA takes precedence over all other legislation.

"Since the amendments made in 1983 to Section 35 of the Constitution Act, 1982, the rights under the JBNQ Agreement have received constitutional protection (s. 35(3)) to the same degree as treaty rights. These rights take precedence in the event of conflict with certain legislative and administrative measures."

Andre Dupras, vice president of communications for Donohue Forestry Products Inc., which is represented by the law firm Ogilvy Renault, said Feb. 18 he had heard nothing about the outcome of the motion to remove Justice Croteau since Feb. 16. He said he would ask a Donohue lawyer to contact Windspeaker to explain their position on this and related matters, but no one did. We attempted to talk to another company's lawyer on the forestry side, but he also did not return our phone calls.

Dupras denied the companies were opposed to full and complete environmental assessments.

"It's not that they don't want that. It's just that what has been done over the last few years is in total agreement with all the papers that have been signed between the companies and the Quebec government, so what we do is in agreement with what we are permitted to do. And I think that these agreements say that the way the environmental effects of cuts or any forest operations, these effects should be evaluated in the same way as the rest of the places where we are allowed to cut wood."

With respect to the move to have Justice Croteau removed from the case, Dupras said, "But you know that the real reason why some companies as well as the Quebec government made this request against Justice Croteau is that he pronounced himself on something else than what hewas asked to do."

Justice Croteau isn't the only judge they want disqualified.

"Obviously, the government treaty busters at the so called federal Department of Justice will jump at any opportunity to attack decisions which uphold treaty rights," executive director of the Grand Council of Crees, Bill Namagoose, said in a press release Jan. 28. "Canada was not even a party to the appeal of the decision that had caused Quebec and the companies so much distress. Still Canada actively pursues the dismissal of Justice Croteau from the main case. Canada, Quebec and the companies have already submitted to the court a list of 37 judges, close to half of the judges of the Court in Montreal, who they thought should not hear the case because of some presumed or real impediment. Now, when they have a judge who was first acceptable to them, they take extreme measures to have him removed," Namagoose said.

Grand Chief Ted Moses also commented on the move by their opponents to have Justice Croteau removed from the case.

"Under the law, the judge is required in a circumstance like that to give his reasons as to why he shouldn't step down from the bench. And he did. He submitted a written declaration, basically saying that 'I have reviewed the James Bay and Northern Quebec Agreement, and the evidence before me is substantial proof that the government of Quebec and the forestry companies - and the government of Canada - are violating the constitutionally protected rights of the Crees under the agreement, every time they issue a permit or approve a forestry management plan to a company.' And he said, 'so for that reason, I refuse to step down from the bench.'"

Moses says that the higher court's ruling regarding the recusation issue could come down in a couple of weeks.

Meanwhile, forestry operations continue 24 hours a day. Chief Paul Gull of Waswanipi First Nation, more than eight hours north of Montreal, is worried about the rapidly disappearing forests while the legal battles rag on. He's even more worried about the morale of his community.

"Right now there's a lot of social impacts related to people being deprived of a way of life, in terms of hunting, fishing and trapping," he said. "Last week, a trapper came to see me - a young trapper. He said 'in the old days, all my brothers - there's five brothers - used to be able to hunt. All of us, on the same trapline. Now, based on whatever's left of the land, only one of us can hunt.'

"So [people of Waswanipi] have social problems," Gull continued. "They have a hard time dealing with living in the community when these people came from the land. It deprives people of a way of life.

"Presently we have vouchers for food, so that even people that hunt come and ask for these vouchers."

Gull provided details of the situation that has brought the people to this deplorable state in his community.

"We have about 45 traplines in this territory," Gull said. "Out of those 45 traplines, 80 per cent of the traplines have been cut. And we have about seven left that haven't been touched." He says within five years 100 per cent of their traplines will be cut.

"The old growth forest is all going to be gone, within the next five to 10 years. And all you'll have is the commercial forestry that is regenerated by the forestry companies for their commercial purposes only.

"They don't give it [the forests] the opportunity to grow naturally and let all the wood that grows naturally grow. They replant only what is needed commercially.

"Certain kinds of animals won't live in commercial harvesting areas," Gull added. "Right now what we're losing is the rabbit, the marten, the lynx, parts of the beaver family . . . and most likely the moose will be displaced."

Gull went on to say they had a clause put in the JBNQA that forestry had to be "compatible with the Cree hunting and fishing way of life." But they made the agreement at a time when operations were conducted manually.

"Right now it's the mechanical stuf