Canada: Signing Of A New Agreement Between Québec Government And Eeyou Istchee Cree Nation

The Québec Government and the Eeyou Istchee Cree Nation recently announced the signing of a new agreement which settles a longstanding dispute pending before the Québec courts, dealing with the Cree Nation's challenge to the management of forestry activities in Québec's North.

The dispute had significant implications, as it related to a wide range of issues, from the appropriateness of timber harvesting practices to the protection of the wood forest caribou, and had even resulted in Resolute Forest Product's loss of its Forestry Stewardship Council (the "FSC") certification.

In order to understand the significance of  this new Agreement, some historical perspective is in order.

Pursuant to the James Bay and Northern Québec Agreement (the "JBNQA"), forestry activities fell within the ambit of Chapter 30A. A subsequent agreement, known as the "Paix des Braves", signed in 2002 between the Cree Nation and the Québec Government, sought to reinforce the political, economic and social relationships created by the JBNQA, while also stipulating a number of  particular measures to be taken to implement same. This Paix des Braves addressed certain specific sectors, such as hydroelectric development and forestry.

The so-called "Baril-Moses Agreement", signed at the same time and subsequently supplemented on February 23, 2005, dealt expressly with timber cutting rights and licences on Cree territory. It provided for the implementation of an adapted forestry management plan, whereby the existing provincial forestry regime would be more properly reflective of, and would take into account, Cree concerns related to the impact of forestry activities on traditional hunting, fishing and trapping activities.

The dispute resulted from the provincial government's alleged failure to abide by the  letter, if not the spirit, of the Baril-Moses Agreement. The Cree initiated court proceedings, seeking damages in excess of $13M, alleging that the provincial government and the forestry industry were carrying out their timber harvesting activities without any regard for the terms of the Baril-Moses Agreement.

The Cree, in this context, had also successfully challenged Resolute Forest Product's FSC certification with respect to its forestry operations in the Saguenay–Lac-Saint-Jean region, on the basis that both Resolute and the provincial government, by essentially disregarding and\or violating the terms of the Baril-Moses Agreement, had failed to satisfy the FSC's Principle 3, which encompasses and upholds the interests of aboriginal or indigenous peoples. The Cree had satisfied the FSC auditors that the company's failure to honour the conditions pursuant to which the Cree had consented to the forestry operations on the Cree trap line had, in effect, voided their consent.

A crisis of sorts ensued, which eventually brought the parties to mediation before former Québec Premier Bouchard.

The newly signed and announced Agreement brings that litigation to an end and provides for the implementation of a more collaborative approach to the management of the forest in the territory concerned.

The Agreement seeks to harmonize the forestry activities with  traditional Cree hunting, fishing and trapping activities.

The Québec Government undertakes to honour the requirements of the Baril-Moses Agreement until such time as a Working Group, newly created pursuant to the Agreement and comprised of the Cree and Innu communities and provincial representatives, can jointly develop a set of forestry management standards. 

As evidence of the collaborative approach favoured by the Agreement, the Working Group will develop and propose forestry practices and standards which take into account the needs of the users of the territory involved, including the Cree communities of Mistissini and d'Ouje-Bougoum, and the lands of the Innus, with respect to hunting, fishing and trapping, with a view to ensuring the compatibility of those uses with modern forestry methods and, significantly, forestry certification.

Those standards will be developed, while taking into consideration such matters as development areas of particular interest for the Cree and Innus, preservation of forest cover in designated areas and other matters and various economic, environmental and social factors to be defined.

The Agreement stipulates that the Government will abide by the terms of the Baril-Moses Agreement until June 30, 2020, at which time the Working Group's recommendations are to be implemented and the adapted forest management plan amended accordingly. 

The Working Group is also tasked with proposing a process which will ensure that the development requirements evolve, taking into consideration the needs of the users and the communities, as well as advances in sustainable forest management.

Finally, the Agreement sets out a number of forest and biodiversity preservation measures. The Québec Government has agreed to designate a new protected and biodiversity reserve for the Broadback River area, covering some 9,134.81 square kilometers.

The provincial government has also re-asserted its commitment to re-establishing the habitat for the wood caribou in Québec and will work with all parties and experts on developing a plan to implement rapidly the measures required to achieve that goal.

While the announcement of the Agreement was generally well received, there were nonetheless certain dissenting voices, such as the Innus and a number of Cree communities who feel that its terms are not sufficiently reflective of their concerns.

This new Agreement is certainly welcome, in that it brings a measure of certainty into forestry activities, at a time when the industry, as a whole, has been reeling from significant negative market impacts. Successfully addressing the concerns of the dissenting communities will remain an important objective to ensure that this new Agreement attains its stated objectives.

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