From DDEOCAMP@PEARL.TUFTS.EDU Thu Mar 4 09:37:14 1993 Date: Thu, 4 Mar 1993 09:34 EDT From: DDEOCAMP@PEARL.TUFTS.EDU Subject: history of JB/HQ The James Bay Story So Far When Quebec's then youthful premier, Robert Bourassa, announced the James Bay hydroproject on April 30, 1970, he called it "the Project of the Century." The scheme he proposed would cost $6 billion and produce 125,000 jobs. "James Bay," Bourassa proclaimed, "will be the key to the economic and social progress of Quebec, the key to the political stability of Quebec, the key to the future of Quebec." Shortly after Bourassa took office, the new separatist party, the Parti Quebecois, mstituted the controversial War Measures Act which established martial law throughout the province. That fall, 340 Quebecois were arrested and held without charge. Realizing that his image could prove to be fatal politically in a province that has always had a troubled relationship with the federal government, Bourassa seized upon the James Bay development scheme as a means of providing Quebec with a symbol of provincial pride, and providing economic development and jobs on a grandiose scale. In 1972 Bourassa wrote, "Quebec must occupy its territory; it must conquer James Bay." Only a Few Thousand Natives The James Bay region has been the home of the Cree people since time immemorial. The area north of the Cree territory is occupied by the Inuit. The territory was essentially inaccessible to the Quebec culture to the south. A 1988 publication by Hydro-Quebec, the provincially owned utility, stated that the region "was inhabited by only a few thousand native people, most of them Cree Indians." This has been the strategy of the developers from the beginning: to ask if the rights of "a few thousand" Indians should be allowed to stand in the way of the greater good of 7 million Quebecers, much of the rest of Canada, and of the northeastern United States. When Bourassa announced his plans to proceed with the development, no one thought to consult with, or even notify, the Crees and Inuit. The Crees learned of the plans to flood their territory by newspaper and radio reports. The development of James Bay was a provincial undertaking. Hydro-Quebec is a crown corporation. There was no independent government to regulate the activities of HQ, to protect the environment, or to protect the rights of the region's native peoples. The interests of HQ were identical to the interests of the government. The Crees Organize While the Crees had hunted and trapped in the region, they had only begun to settle in small villages around James Bay in the 1950s. This forgotten people had had no experience with the economic, legal, and cultural institutions of the white culture to the south. They had no central government, and very few Crees had been educated in Canadian schools. Led by 22-year-old Billy Diamond, newly appointed chief of the Rupert House Crees, they organized quickly to protect their territory and way of life. In July 1971, leaders of the various bands met and decided to protest to the minister for Indian Affairs through the agency of the Indians of Quebec Association (IQA). Billy Diamond later stated: "We were in shock. There had been no consultation, nothing. This was our land. We believed this land had been created for us. We felt we had a responsibility to protect it, to make sure no one harmed it. Did we get riled up! The more we talked, the more we realized that what all Crees had in common was their reliance on the land. And we knew that if the land was destroyed, the animals would be destroyed-and if you killed the animals, you would kill the Crees. This was a war council." The Crees Sue Quebec In May 1972, IQA lawyers initiated court action to halt the project through a permanent injunction against damaging Cree land. Northern Quebec had been federal territory from 1871 until the Quebec Boundary Extension Acts of 1898 and 1912. These acts transferred the territory to the province of Quebec with the stipulation that Quebec must negotiate treaties settling aboriginal claims to the land. Quebec had not negotiated these treaties, and therefore the aboriginal claims were still valid. The IQA was prepared to call upon Ottawa to revoke the Boundary Extension Acts and return the land to the Crees and Inuit. In the context of the constitutional disputes between Quebec and Ottawa, this was a political bombshell that both governments wished to avoid. After a deadlock between the James Bay Energy Corporation's lawyers and the IQA over three social impact studies commissioned by IQA, the Crees (and IQA) took the James Bay Development Corporation and JBEC to court in October. They asked for an interim injunction to prevent irreparable harm to the Crees if construction continued unchecked until the hearing of the permanent injunction case. The Day in Court In December 1972, the interim injunction proceedings started before Judge Albert Malouf of the Superior Court of the province of Quebec. The hearings lasted four months. The Crees' case was mostly presented by dozens of hunters who testified about their current use of the land. Chief Billy Diamond told the court: "My people are not prepared for the impact of economic development." Roy MacGregor writes: "When Job Bearskin of Fort George was asked to give the court his address, he simply sat with a perplexed look on his face and refused to comment. Asked again, he was able to say, in Cree, 'I have come from what I have survived on.' When pressed further to identify where he lived, he offered: 'I have lived in the bush. I come from the bush.' When Francois Mianscum, a Mistassini hunter, was asked to place his hand on the Bible and tell the truth and nothing but the truth, he asked first to consult with the translator. They spoke for a while, and the translator turned to the judge, helpless. 'He doesn't know whether he can tell the truth,' the translator told Malouf. 'He can only tell what he knows.' " 400 Miles in 400 Days While the case was being heard, the James Bay Energy Corporation built a major paved highway from Matagami to the site of the first dam called La Grande 2 on the La Grande River, 30 miles upstream from the Cree village of Fort George. Nearby, an airfield with a paved runway was built, and the town of Radisson was created to house 1,000 executive staff and their families. The field received direct flights from Montreal. The 400-mile road took 400 days to build. Victory for the Crees On November 15, 1973, Judge Malouf announced his decision. MacGregor describes the historic event: "It was a massive decision-170 pages long-which the ever-serious Malouf insisted on reading in great detail. And nowhere was there the slightest hint of which side he was leaning toward. One by one he addressed the issues raised in the testimony, finding on the side of the corporation in some, on the side of the Natives in others. In page after page he traced the historical documentation and said he was forced to conclude that: 'The evidence also shows that the rights of the Cree Indian and Inuit populations have never been extinguished.' This land, Malouf believed, had the status the old trappers had claimed it had: it was their garden, which had provided them with their livelihood for longer than history could record. That they pursued a traditional way of life on this land was beyond dispute. And when he combined the testimony of the various scientific experts with that of the trappers and hunters and fishermen, he could not help but conclude that the land would be significantly altered by the massive hydroelectric project. The effect on the way of life the old Crees and Inuit had described to him in their own language would be nothing short of 'devastating,' Malouf concluded. Furthermore, he had a great deal of difficulty comprehending the arguments of the James Bay Development Corporation regarding the extent of the financial loss incurred by calling a halt to the work. The numbers did not make sense. 'In addition,' he said in his slow, even voice, 'I find it difficult to compare such monetary loss to the damages which such a large group of people will suffer. The right of petitioners to pursue their way of life in the lands subject to dispute far outweighs any consideration that can be given to such monetary damages.' The Natives had a right to their court injunction, he said. The work on the James Bay project would cease immediately, by order of the Superior Court of Quebec." Justice Overturned The proponents of development immediately appealed. That fall, the Arab-Israeli war had led to an oil embargo for the United States, Japan, and Europe for supporting Israel. Suddenly, James Bay seemed a sensible alternative to reliance on foreign oil. On November 22, Judge Jean Turgeon of the Quebec Court of Appeal reversed Judge Malouf's decision which had been delivered one week earlier. He stated that because of their investment in the development thus far, the inconvenience to JBDC and JBEC would be much greater than the damage to the Crees if the project proceeded. He ignored the evidence supplied by scientists and impact studies that showed that the development would damage the environment and destroy the Cree and Inuit ways of life. Judge Turgeon invoked a provision in the Quebec Code of Civil Procedure to suspend the injunction without further hearing. The 1975 James Bay and Northern Quebec Agreement Following the overturning of the injunction, the Crees realized they were powerless to stop the proposed Phase I of the development. Accordingly, they agreed to enter into negotiations with the provincial and federal governments to settle their land claims. They did so, feeling that a gun was pointed at their heads. The agreement was finally signed in November 1975. In return for recognizing Quebec's sovereign rights to the region and for a promise not to base future land claims on "aboriginal rights," the Crees would be compensated with $90 million to be paid in installments. They agreed to give up their legal action against JBDC and JBEC. The Crees gave up claims to all but 5,400 of 410,000 square kilometers of their homeland. They retained their hunting privileges on lands not flooded by the dams, although all but about 75,000 square kilometers were opened to the public. Sections 22 and 23 of the agreement outlined the procedure for environmental impact and review for future projects in the James Bay and Hudson Bay region. Unfortunately, the agreement only requires an environmental assessment as a means to minimize impacts. There is no mechanism to measure whether to proceed with a project. An equally glaring weakness is that the agreement does not require a cumulative impact assessment of the developments, nor does it require public comment or consideration of alternatives to a proposed project. In short, the deck is stacked in favor of development. The best that can be hoped for is that the damage will be monitored and mitigated. Landmark Agreement or Cruel Hoax? The issue of future development remains a source of contention. HQ claims that the agreement permits future development. The Crees' understanding is: "No new projects without our consent." The Quebec cabinet was outraged by the generosity of the settlement, but the province was so deeply committed to development that it felt it could not afford further delays. The Crees do not feel that it was generous at all. Grand Chief Matthew Coon-Come stated recently: "The agreement contains no gifts. It has simply given the Cree people what other Canadians have enjoyed for years: basic rights such as citizenship, schools, health care, control over municipalities, as well as ensuring the rights we have enjoyed since time immemorial-hunting, trapping, and fishing." HQ's claim that the agreement "assured [Natives] of a voice in the decision-making process likely to have an impact on their environment" is hotly contested by the Crees. Billy Diamond has said: "If I had known in 1975 what I know now about the way solemn commitments become twisted and interpreted, I would have refused to sign the agreement. Protection of the environment in Northern Quebec has been a farce." With the signing of the agreement, the way was cleared for the development of the first phase of the James Bay projects, the La Grande complex. Since then, the bureaucrats in Ottawa and Quebec have refused systematically to implement the agreement. The Crees have called this white collar terrorism. Although the Canadian government has spent far more than the original $90 million, internal governmental memos acknowledge that it has not been enough to discharge the commitments made to the Crees. In the continuing legal saga, in 1991, Judge Paul Rouleau of the federal court of Canada ruled that the JBNQA is a law, and most recently, that "under the terms of sections 22 and 23...the federal administrator has a public, non-discretionary duty to carry out an independent federal environmental review of the Great Whale project." In August, Premier Bourassa acceded to the request of the New York Power Authority to grant a one-year extension on the deadline for a final decision on the NYPA/HQ contract in which HQ would supply the largest block of power in the history of New York State. While it is a given that any court decision will almost immediately be appealed, it is uncertain whether either government will sit down with the Crees to talk about fulfilling their mutual obligations. Premier Bourassa has made it clear that he will not let a handful of Indians stand in the way of construction. It is possible that he could decide to proceed with Great Whale if less public attention is paid to events in that remote region. Meanwhile, Quebec's Bill 150 calls for a referendum on independence if the National Assembly does not like what it receives from Canada before the summer of 1992. A vote favoring independence will be binding within a year. The Crees would probably then make further appeals to the United Nations, and take what actions they deem necessary to protect their rights under international law and under the JBNQA. -written by Michael Posluns