Chapter 13

The aftermath of signing the James Bay and Northern Quebec Agreement

Having signed the agreements, the Cree entered into what Toby Morantz1 calls a state of ‘bureaucratic colonialism’. Many of the Cree communities opposed the signing, as acknowledged by Chief Billy Diamond, but the Grand Council of the Crees decided, in what could not be considered a genuinely free choice, that it was better to have more security in their hunting and fishing rights and to have a share in the revenues of the hydro-electric projects. Later he was to become one of those who saw that the Cree had been misled as to the effects of signing: ‘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 has become a farce.’2

In the years following the signing of the James Bay Agreement,3 Hydro-Québec and the governments ignored or broke terms of the agreement, a signal failure to uphold the honour of the Crown. The Cree and Inuit began to realise that the promises of environmental protection were being ignored by the corporations. There were numerous court cases and renegotiations in unsatisfactory conflict resolution on single issues. Boyce Richardson claims that the corporations manipulated the court process.4

In 1981, a committee was set up to establish whether the governments had complied with both the spirit and the letter of the agreement. This followed Cree and Inuit claims that the governments had failed to honour their social and economic provisions. The ensuing Tait Report identified the main impediment to effective implementation of the JBNQA as a lack of dispute resolution procedures.5

One unforeseen consequence of the James Bay project was the levels of methyl mercury in the impounded water. Methane from the plant life decomposing in the trapped waters combined with organic mercury already in the soil to produce methyl mercury. Levels in the waters in the James Bay area reached six times the safe level for human consumption.6

Another unfortunate consequence was that in 1984 10,000 caribou drowned due to a sudden release of water from the Caniapiscau Reservoir during the seasonal migration of the George River herd. Hydro-Québec claimed that this was an ‘act of God’.7 But in comments to a conference held to mark the tenth anniversary of the signing of the agreement (see below), Michael Barrett, an administrator working on the implementation of the environmental regime, said that there had been no built-in monitoring of the Caniapiscau Reservoir even though they should have been monitoring the increase in flow.8

The conference at which Michael Barrett made his comments was organised ten years after the signing of the JBNQA to assess the social and environmental impacts of the James Bay projects.9 Paul Wilkinson, who chaired the proceedings, identified that the ensuing problems resulted not from questions of land rights but from issues of native identity. He suggested that relations between native and non-native peoples were the major stumbling blocks.10

John Ciaccia, who had been chief negotiator for the Quebec provincial government in the original negotiations admitted that, because of the way in which the negotiations had been framed, there had been too much emphasis on the financial benefits for the indigenous signatories and not enough on aboriginal rights, which were not even defined in the ensuing agreement.11 He went on to remark on the way in which bureaucracy hampered proper environmental protection: ‘On paper, everything is in place, but the regime has not really proven implementable, and should in any case be modified in the light of new environmental practice.’

However, he claimed that the main problem was that the agreement had not been implemented properly, and that the government had not fulfilled its obligations, especially in relation to funding. The agreement, he maintained, had not put an end to the era of paternalism.

Speaking later in the day, anthropologist Harvey Feit said that, although the Cree hunters had spent more time in the interior and more young people were encouraged to follow the hunting way of life since the signing of the agreement, they often felt that they had no effective role in decision-making about development activities that affected them. They had believed that the agreement would change this state of affairs.12 Hunting was disrupted in many ways by the development and there was a perception among the Cree that hunting was getting harder. He stressed the importance of the traditional knowledge of the older hunters, which should play a part in the decision-making process.13 He noted that increased incomes from employment on the project had brought greater consumerism in Cree villages.

As for wildlife management, Harvey Feit said that little had changed since the signing of the agreement. He said that lack of funding from Quebec for wildlife research was limiting its extent and that research requested by the indigenous peoples which was both reasonable and necessary was not undertaken.14 He concluded that decisions relating to wildlife management were driven by political rather than ecological concerns and that ‘conservation of wildlife had not been assured by the agreement, primarily because of incomplete implementation by governments.’15 He also noted the administrative and legalistic rather than conservationist nature of the co-ordinating committee’s decision-making.16

Speaking on behalf of the Cree, Albert Diamond spoke of the way in which the Cree were called on to implement programmes, but when they asked for reimbursement of their costs this was refused.17 Alan Penn commented on the difficulty in integrating the indigenous groups into the decision-making processes, saying that this would take 15–25 years rather than ten.18 He spoke of the communication gap between north and south. He too mentioned that the agreement was principally concerned with administration and noted that its administrative procedures failed to adapt in the light of experience during implementation. In this climate, research on ecological issues ‘faded away’ so that, for example, mercury levels were not measured. Advisory committees were put in place instead of proper research. There were also language difficulties, because committee proceedings were conducted in French whereas the Cree spoke English. Finally, very little had been done to monitor what was going on on the ground.19

Billy Diamond claimed that Cree aboriginal rights were never extinguished under the JBNQA. He claimed that the Cree had merely given permission for the James Bay project to take place on their land, enabling the Cree to take part in modern industrial development. Nevertheless, the description of the Category III lands in the agreement specifically states that these lands are owned by the Crown in Right of Quebec and that, while hunting and fishing rights are reserved to the Cree and Inuit, rights to the exploitation of the land for forestry, mining and tourism are shared. Category III lands comprise 908,000 sq km.

One of the Cree who had sought the Malouf injuction, Billy Diamond, also said that, whereas the Cree had worked hard to make the project work, Canada and Quebec were conspiring not to make the agreement work.20 Eric Gourdeau took up the point about non-extinguishment, saying that the only aboriginal rights which had been extinguished were those of Quebec’s aboriginal people who were not signatories to the agreement.21 James O’Reilly maintained that all that had been conceded were the Cree and Inuit rights to the exclusive use of the land.22 Yet, on the ground, the Cree land was flooded and its ecology ruined.

Opening the first workshop of the conference, Pierre Lepage pointed out that the land signed away under the agreement had been shared by other indigenous groups: the Algonquin, Attikamekw, Montagnais (Innu) and the Inuit who lived in Labrador.23 Robert Pratt spoke about Bill C-9, which would extinguish all the rights of third parties in the James Bay lands.24

Nobody attended the conference to represent the Innu. Both Gaston McKenzie, who had been chief negotiator for the Conseil Attikamekw-Montagnais (CAM), the group which pursued negotiations for the recovery of the lost lands of the Attikamekw and Innu, and Alexandre McKenzie, chief negotiator for the Innu domiciled in Matimekush Lac John, were invited but failed to attend.25 It was left to William Anderson of the Labrador Inuit Association to describe the exclusion of the third parties as a ‘massive betrayal’, expressing his frustration that: ‘If Quebec parties insist on treating the claimants as beggars, as people who are being granted new rights, and reminding us that we are in a position of weakness, the process of affirmation of our rights will be a degrading and resented experience.’26

Paul Charest,27 the anthropologist working with CAM, said the Innu of Schefferville had tried to bring an action to stop Bill C-9 (something which Robert Pratt had earlier described as ‘near impossible’). Later, Pratt said that the claim had been dismissed on the grounds that the federal government had the legal right to extinguish claims with or without compensation. Charest estimated that 15–20 per cent of the James Bay land belonged to third parties. He spoke of the difficulty for the Innu from Schefferville in hunting, trapping and fishing on their traditional territories, which had been allocated to the Cree and Naskapi under the JBNQA. Taking up these themes the following day, he went on to add that the expenditure on housing, health and education in Cree and Inuit communities drew funding away from the non-signatory indigenous groups. The agreement also gave the signatories preferential access to the governments involved, since they had been better able to organise themselves and to form a political lobby.

Joseph Guanish, Chief of the Naskapi who had moved from Schefferville to Kawawachikamach, on lands allocated to the Naskapi under the North Eastern Quebec Agreement, made the following observation: ‘A land claims settlement that does not create or guarantee a healthy economic basis for its beneficiaries is so seriously flawed as to risk becoming harmful to the long-term interests of those beneficiaries.’ 28

He claimed that the North Eastern Quebec Agreement, which brought the Naskapi into the James Bay Agreement, was negotiated by them on the basis that Schefferville remained a prosperous mining town. But the Iron Ore Company mine was closed in 1982, ruining their economy, and unemployment among the Naskapi rose to 85 per cent.29 He concluded that the North Eastern Quebec Agreement had been of no benefit to the Naskapi economy, on the basis that the Innu – who did not sign – had received the same assistance in compensation for the closure of the mine. The Naskapi had subsequently wanted to return north to where they had lived from 1929–48, but the government had insisted that they remain in the Schefferville region. Now they were bound to their village just outside Schefferville because they could not exercise their North Eastern Quebec Agreement rights anywhere else.

Another symposium was held in 2001 to take stock of the implementation of the JBNQA over the course of its first 25 years.30 Albert Diamond,31 having listed the many successful projects and improvements to living standards in the Cree communities, concluded by saying how much more there was to be done in the areas of community development, sanitation and housing.

Reporting on the symposium, Sylvie Vincent noted that no Naskapi were present and that there was no representation from any of the indigenous groups who were not signatories, and no mention of them during the proceedings. She reported a boycott of the symposium by Ted Moses and other Cree, who were at that time involved in renegotiations with the Quebec government.32

Louis-Edmond Hamelin summed up the implementation of the agreement 25 years on as follows:

Could the 1975 Agreement have generated greater benefits? The answer has to be Yes, given the restrictive circumstances of the process: insufficient deliberation in general, lack of northern geopolitical experience, too little time dedicated to drafting of the report (only two years starting in 1973), predominance of administrative concerns, obligatory linguistic conformity with a non-Aboriginal legal framework, vast areas to be covered by the planning, lack of preparation on the part of institutions and individuals for the implementation of contractual provisions, absence of arbitration mechanisms, and lack of equivalents for Cree, Inuit, French and English terms. All these factors hampered a more thorough conceptualisation and understanding of the things to be changed.33

The Paix des Braves

In 2002 a new accord was signed by the James Bay and North Eastern Quebec parties known as the Paix des Braves, following the recommendations of the Royal Commission on Aboriginal Peoples. In line with recent developments in the Comprehensive Land Claims process elsewhere, under this new treaty the Cree received a further C$125 million and guarantees of apprenticeships, employment and support for Cree business enterprises.

With the signing of the Paix des Braves, the Cree and Inuit were said to become partners of the Quebec and federal governments with greater recognition of their rights in the land, but still under the regime of the James Bay Agreement. It was claimed that the accord was designed to ensure that corporations like Hydro-Québec took Cree and Inuit needs fully into account.34

The Paix des Braves was based on four principles:

• respect for Cree values and traditional way of life, including their requirement for sustainable development;

• greater Cree autonomy and self-determination in economic development;

• partnership between the Cree Nation and the province of Quebec; and

• the setting up of a dispute resolution and mediation system specific to the James Bay Agreement, in order to avoid the need for recourse to the courts.35

Perhaps the most significant change brought in by the Paix des Braves is that it is couched in terms of a 50-year lease, rather than insistence on extinguishment of all indigenous rights in the land.

As Romeo Saganash, at the time a member of the Grand Council of the Cree, pointed out:36 ‘Real “partnership” demands genuine equality of status and equity of outcomes between the partners. No true partnership can exist when one party exerts power over and possesses rights at the expense of the other. What characterizes a true partnership is the agreement on a common set of goals – shared objectives with equitable results, which require the respectful cooperation of the parties in order to be achieved.’

Earlier, he had also commented that partnership can be used to disguise what is really going on, including dispossession. He distinguished the Paix des Braves from indigenous land claims settlements in that it is not based on surrender and extinguishment, and made the questionable claim that the James Bay and Northern Quebec Agreement did not require the Cree to give up their land rights.

Renée Dupuis37 is more critical of the Paix des Braves, however, suggesting it may be, in fact, merely a transfer of power between the federal and provincial governments without the creation of authoritative governance structures in Cree, Naskapi and Inuit communities. Further, it confers powers on regional authorities which are not directly accountable to local populations. She has also questioned whether the decentralised structures created for health and social services for the local communities actually improved living conditions in the subsequent years. Finally, 30 years after the JBNQA was signed, Dupuis called on the Quebec government to critically appraise its relations and policy regarding the Cree and Inuit before it embarks on future negotiations with the Attikamekw, Innu and Quebec-Algonquin peoples.

There was a further settlement in 2007 when the Cree received another C$1,050 million, plus a further C$300 million as compensation for proposed amendments to the Cree Naskapi Act.38

Reflecting on this situation, Kathleen Wootton told Boyce Richardson: ‘It’s very sad to see how we Cree have been corrupted by money – that is all our politicians and tallymen talk about now. While I agree that the Cree should be entitled to some compensation for the impacts we have to tolerate, it is sad to see some tallymen refusing to share the money with other family members. It seems that we, as a people, have lost the value of sharing.’39

On 2 June 2012, at the tenth anniversary celebration of the Paix des Braves and bookended by self-congratulatory speeches on both sides, Dr Matthew Coon Come, former Grand Chief of the Cree Nation and former National Chief of the Assembly of First Nations, couched his support for the Paix des Braves in less hubristic terms, pointing out that:

The Paix des Braves is also an ending. It marks the end of a certain paradigm, a certain framework which defined the relationship in the past. Sometimes we called that relationship ‘colonial’; sometimes we called it ‘paternalism’; and sometimes we called it ‘cultural genocide’. In an era when we were excluded from development of the resources on our traditional territory and when development took place without our consent; when we were excluded from certain basic and fundamental rights – even the right to vote – and excluded from the management of our own affairs; and sent to residential schools forbidding us to speak our language; these were not inaccurate characterisations.40

In the 37 years between the signing of the James Bay Agreement and the tenth anniversary of the Paix des Braves, the Innu of the Strategic Alliance continued to suffer the indignities and exclusion described by Dr Coon Come. In his foreword to a collection of papers comparing the effects of hydro-electric developments in Quebec and Manitoba, John Bonner describes how, since the coming of the hydro-electric projects:

… old values have disappeared. Elders are not as respected as they used to be, there is less closeness, respect, mutual aid in families, there is more quarrelling, more squabbling. Even worse, now violence, drug and alcohol abuse are common in our community, while thirty years ago we didn’t know anything about these. White diseases. It is despairing to see our young people being ruined by all these imported behaviours. The worst is that we cannot do much to stop that social disaster.41

Bonner goes on to speak of the way in which villages wait for the governments to provide new housing to ease the overcrowding, wasting time arguing for the money – time which could be better spent building the housing for themselves.

While at pains to assign no blame to the Cree, the Naskapi or the Inuit and demonstrating respect for their right to reach a settlement, many of the Innu interviewed in 2009 claim that the signatories to the James Bay Agreements are no better off than those who refused to sign. They say that although the upfront lump sums that they receive in return for their signatures give them more opportunities to improve their lives, they are simply equivalent to the annual sums paid to the non-signatory Band Councils by the Department of Aboriginal Affairs. This is borne out to an extent by the words of John Bonner. The main difference in the quality of life in Cree, Inuit and Naskapi villages is that they have a degree of self-determination, provincial schooling for their children and access to funding for private enterprise and employment opportunities rather than the tight annual budgets received by the Innu who continue to be wards of the Crown.

The last word should go to Cree Chief Allan Happyjack, who gave evidence to the Royal Commission on Aboriginal Peoples in 1992 that the Cree have borne a large part of the costs and reaped few of the benefits of the massive James Bay hydro-electricity project. Speaking for all indigenous peoples dispossessed under the James Bay agreements, he says:

Our trees are gone. When the trees are gone, the animals are gone and all the land is destroyed. They all came from the outside, from non-native economic development. That is where we have our problems, with our hunting and fishing, our traditional way of life has been affected and these developments cause other problems, from alcohol and drug abuse, but you have also heard about the dams and flooding on the territory. You heard about forestry and those people that are leaders of Quebec and Canada – they are the ones that are letting the developers come into our territory to do what nobody has asked us, asked for our consent, or to talk about it. Nobody asked us for our consent, if we approve or are in favour of these projects.

Allan Happyjack gets to the heart of the matter. Without free, prior consultation, and, in a case as significant as the flooding of the northern woods, free and prior informed consent, it would appear that there can never be reconciliation in a situation where the majority of the people affected are excluded from negotiations.