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