Michael O'Brien

February 15, 2002

On February 3, 2002 the James Bay Cree voted to allow massive hydro development and other resource extraction on their traditional lands.[1]  Sixty-nine percent of the Cree voted for signing the Agreement in Principle (Agreement),[2] a contract with the Quebec provincial government.[3]  In exchange for their assent to the Agreement, the Cree will receive 3.5 billion tax-free dollars over fifty years and will attain control of development and community organizations previously managed by the province.[4]  In return, the Cree must permit large-scale forestry and mining projects[5] and allow Hydro Quebec to divert the Rupert River.[6]  Among other commitments, the Cree must assume many of Quebec's responsibilities under section 28 of the James Bay Northern Quebec Agreement, such as encouraging training programs, assisting Cree entrepreneurs, and operating the Cree Trappers' Association.[7]  Additionally, both parties will retreat from specified ongoing litigation.[8]

Mathew Coon-Come, former Cree Grand Chief, best summarized the Agreement's signing. In his editorial in Eeyou Eenou, the Cree Nation magazine, he stated,

[a]boriginal people across Canada have their eyes on us. If we do not sign, we can be assured that the government will be back for the rivers and the lakes. Will we win the next time? Maybe, but we should take the progress that we have made with the governments. This is what we have always done-made some progress, and then moved along from there. That is what we must do this time.[9]

It may be difficult for some-especially environmentalists-to hear Coon Come's words and watch the Cree sign the Agreement, as signing will mean the logging, mining or submersion of thousands of acres of wilderness.  However, while no one questions the Cree connection to the land, their culture is more than this connection.  This editorial argues that while signing the Agreement will necessarily mean the destruction of part of the Cree's environment, it does not necessarily mean the destruction of the Cree.

Cultural Misperception

To the newcomer's eye, Cree culture may appear unvarying.  However, their culture is like a river, a dynamic force that cannot be frozen in a moment, nor whose course can easily be changed.  In 1974, the Quebec Superior Court, while temporarily enjoining hydro development on Cree land, focused on whether the Cree really were still "Indians" in the stereotypical sense of the word.[10]  In particular, lawyers for the Province and Hydro Quebec argued that the Cree no longer needed their land for subsistence food gathering and that processed, store-bought food had replaced traditional "country food."[11]  This line of reasoning, that indigenous people are only really "Indians" if they maintain certain cultural activities, is racism.  A similar line of questions asked to white Americans or Canadians would be ludicrous.  For example, one would not decide the citizenship or property rights of an American or Canadian based on her ability to churn butter, build a log cabin, or trap a beaver, even though these may have been skills that partially defined "American" and "Canadian" activity several hundred years ago.  This sort of standard is just as ridiculous when applied to North America's indigenous people.

The Cree embrace modern lifestyles as well as traditional.  Just as the line of reasoning that only allows true "Indian-ness" to those that practice an anachronistic form of "traditional" lifestyle is ridiculous, so is the patronizing view that seeks to "protect" indigenous people from western culture by relegating them to cultural tourist attractions.  This mindset is marked by heartfelt remorse and deep sorrow for indigenous peoples who embrace modern technology, clothing and food, and it seeks to 'preserve' indigenous peoples in a natural, park-like setting.  It implies that the Cree "cannot safely be exposed to other ways of life: they are incapable of making an informed judgment about whether or when to borrow influences from other cultures."[12]

If the Cree want hydro development and heavy industry, they should have it.  Denying the Cree the right to develop these industries out of a need to "protect" them, or because these industries are not "traditional" is no less oppressive than forcing them to accept these industries against their will.  It robs them of their sovereignty under the guise of benevolent "protection."  As Robert Yazzie, Chief Justice of the Navaho Nation, has said,

[t]here is a lot of talk about sovereignty, and the talk has become very stale. It is mostly about whether the United States or Canada will "allow" Indigenous peoples to control their own lands, lives and destinies. 'Sovereignty' is nothing more than the ability of a group of people to make their own decisions and control their own lives.[13]

Justice Yazzie's criticism cannot be reserved solely for the industrialists, policy-makers and bureaucrats in Washington and Ottawa.  Environmentalists must also ask themselves whether their interest in Cree sovereignty is compatible with sovereign, yet environmentally unsustainable, decisions, or whether their care exists only so long as the Cree live in a "traditional," environmentally-benign manner.  As others have argued, a purely environmental argument for sovereignty must also eventually argue against attempts by sovereign indigenous peoples themselves to develop their resources.[14]  Such cooption is no better than any other exploitation, and it reduces the vibrant philosophy of indigenous sovereignty to a dim feudalism rooted in primitive land stewardship.

Cultural Change

The Cree are participating less frequently in their "definitive," "traditional" subsistence culture.  Some culture-changing forces have been extremely subtle and perhaps imperceptible to the non-Cree eye.  But the reality is that Cree culture is dynamic, and this fact makes a mockery of any political or legal theory hewn only from motives seeking to protect a static notion of "traditional" Cree activities.

For example, the destruction caused by logging corporations' extensive even-aged logging south of the James Bay territory has been well documented.[15]  Among other obvious problems, logging has displaced bald eagles that have now moved further north to escape habitat destruction and prey on the migratory birds passing through the James Bay region.[16]  Even a relatively slight increase of eagles can reduce the number of available geese dramatically.  In the past, hunters would return from a day of hunting with canoes laden with Blue geese-they are now lucky to return with one or two.[17]  Thus, the pursuit of what the Canadian or American might call "traditional" Cree culture has been blocked by environmental degradation well beyond Cree control.

One might assume that those with the longest traditional connection to the land-elders and trappers-would be the most opposed to signing the Agreement, and that the younger, more "westernized" Cree might support it.  However, trappers, who stand to lose profoundly from hydro development, stated "that they could not think only of their own interests and that they would take the Agreement in Principle and other information from the meeting and when the time came, make a decision based on the future of the Cree people as a whole."[18]  Diverting the river will effectively eliminate the trappers' lifestyle, yet they are able to consider the options objectively.  Non-Cree outsiders should be just as hesitant to judge the Cree's solemn decision.

As Waskaganish Band Chief Robert Weistche explained, "The Cree have undergone a tremendous change over the past twenty years. Where in the past, 12 from a hunting camp might go out hunting each year, now only one or two go."[19]  Weistche explained that the statements of some elders echo this sentiment, "Elders say country food doesn't taste as good anymore. It has tasted different the last thirty years. What if we are told in thirty years that we cannot eat off of the land?"[20]  He went on to note that in his village people now eat more store-bought food, such as pork and chicken.[21]

Listening to the trappers' and elders' statements about their country foods no longer tasting good and adding them to the scientific community's concern that the Cree are suffering from mercury poisoning, one must ask whether switching to store-bought food is such a bad idea.  Indeed, scientists studying the Cree diet now support what the Cree have long known: those who live most "traditionally" and live closest to the land-elders and trappers-already have the highest blood methylmercury levels.[22]

Methylmercury Poisoning

There is a significant danger of methlymercury poisoning downstream from any large impoundment of water in the James Bay region.[23]  This is in part due to large amounts of elemental mercury occurring naturally in the geologic formations underlying the region.[24]  The reservoirs created by hydroelectric dams impound thousands of square miles of water and submerge millions of trees.[25]  The trees rot when submerged, releasing carbon dioxide and methane gas.[26]  When methane gas enters the aquatic ecosystem it combines with elemental mercury, forming deadly methylmercury.[27]  Once in the rivers, lakes and streams, methylmercury becomes trapped in the lipid cells of organisms living in that ecosystem, magnifying as it travels up the food chain.[28]  The traditional Cree diet is based heavily on fish and fowl, both of which feed on methlymercury-laden organisms.[29]  As a result, methylmercury passes through the food chain into the Cree diet.

Methylmercury is a known human toxicant,[30] and consumption of highly contaminated food produces overt mercury neurotoxicity.[31]  At low doses, methylmercury neurotoxicity decreases motor skills and sensory ability, and at extremely high exposures, causes tremors, an inability to walk, convulsions and death.[32]

Levels of blood methlymercury rise dramatically depending on age and lifestyle.[33]  Older Crees who have participated longest in the traditional hunting and trapping lifestyle are far more prone to suffer from methylmercury poisoning than are younger members who eat less country food.[34]

The only way to completely prevent methlymercury poisoning is to cease traditional cultural subsistence practices.  From a nutritional and health standpoint, this is easy enough, but this kind of 'simple' shift has complex cultural ramifications.  The replacement of traditional country foods with lower quality, highly processed foods can have grave results; among the Cree, this transition has been shown to lead to an increase in "western diseases" such as obesity, non-insulin-dependent diabetes, cardiovascular disease and cancer.[35]  The nutrients found in fish tissue protect against cardiovascular disease and provide the polyunsaturated fatty acids essential for normal brain development.[36]  And while scientists and nutritionists studying this issue have urged that "[t]he health risk posed by contaminants in fish must be balanced against the nutritional benefits of this food and, in the case of native populations, against the loss of traditional lifestyles,"[37] no one has been able to find a healthy balance between a market and country food diet.  Post-diversion, the Waskaganish will be forced into an impossible dilemma: eat country foods and suffer from methlymercury poisoning, eat processed foods and succumb to "western diseases," or both.

Further, the Canadian and provincial government have never been upfront with the Cree about toxins and have even hidden knowledge about potentially deadly levels of heavy metals in subsistence foods.[38]  And while most studies suggest that blood methylmercury levels are decreasing, none can firmly establish whether this is because of the Cree's transition away from their now-poisoned country foods or because of a true amelioration of the methylmercury problem.[39]  One fact is known: the Cree's country food is no longer a reliable source of healthy sustenance.  It hasn't been since hydro development first came to the James Bay region.[40]

Conclusion

Two facts are clear.  The Cree will need nontraditional, non-subsistence foods to survive, and second, subsistence on market foods requires a consistent source of income.  Non-indigenous witnesses may only begrudgingly accept that the Cree are "already active participants in a larger social and political structure, and they need a form of self-determination that enables them to negotiate on fair terms with the larger world, rather than remaining isolated from it."[41]  But the elders' pragmatic sentiment ratifies this notion.  Additionally, the elders' statement acknowledges that signing the Agreement will not sign away all that is traditionally Cree, as "Cree-ness" is not a static concept, but a dynamic one with strong connections to the land and past.  Finally, the elders' sentiment recognizes that the Cree will need money to feed themselves, and need it soon-the Agreement in Principle provides that money.[42]

The Cree face a challenge of basic cultural survival.  Upon signing the Agreement, the James Bay Cree will see their final $70 million dollar payment in 2053.  If the Agreement protects Cree autonomy as well as their attachment to the land, the Cree may find themselves 50 years from now to be a very different, but financially secure and healthy people.  As much as some may want the Cree to remain "traditional" and "unchanged," they must also realize that this is an unrealistic expectation that no one would expect from a minority community in Montreal or Winnipeg.  If "traditional" and "unchanged" continue to mean poor and poisoned, good intentions become a death sentence.  However, if the Agreement does not protect the Cree autonomy or land, they may no longer live on the shores of the James Bay's tributaries, as they will expire along with the fish and birds.

______________

^* The author extends profound thanks to Chief Robert Weistche, without whose help this article would have been impossible.

[1] Quebec and Crees in Deal, N.Y. TIMES, February 4, 2002 at A4.

[2] Grand Council of the Crees, Referendum Results at http://www.gcc.ca/AIP/results.htm.

[3] Grand Council of the Crees (Eeyou Istchee), Agreement in Principle, Final Version 3 Draft, (October 23, 2001), available at http://www.gcc.ca/News/agreement_in_principle.htm [hereinafter Agreement in Principle].

[4] Agreement in Principle, supra note 3, at § 5.1.

[5] Id.

[6] Id. at § 5.2.

[7] Id. referring to § 4.

[8] Id. at § 5.3.

[9] Mathew Coon Come, I Support the Agreement, EEYOU EENOU, 43 (February 2001) available at http://www.gcc.ca/AIP/eeyou_nation_feb.pdf.

[10] See generally BOYCE RICHARDSON, STRANGERS DEVOUR THE LAND (1991) [hereinafter RICHARDSON]; SEAN MCCUTCHEON, ELECTRIC RIVERS (1991).

[11] See generally RICHARDSON, supra note 10.

[12] WILL KYMLICKA, POLITICS IN THE VERNACULAR 129-130 (2001) [hereinafter KYMLICKA].

[13] Robert Yazzie, Indigenous Peoples and Post Colonialism, RECLAIMING INDIGENOUS VOICE AND VISION 46 (Marie Batiste ed.) (2000) (emphasis added).

[14] KYMLICKA, supra note 12, at 141.

[15] Grand Council of the Crees (Eeyou Istchee), Forestry, at: http://www.gcc.ca/Environment/forestry/forestry.htm [hereinafter Forestry].

[16] Telephone Interview with Chief Robert Weistche (Nov. 27, 2001) [hereinafter Weistche Interview].

[17] Id.

[18] Grand Council of the Crees (Eeyou Istchee), Update - Community Consultation on Cree Quebec Agreement, at http://www.gcc.ca/AIP/aip_community_update.htm.

[19] Weistche Interview, supra note 16.

[20] Id.

[21] Id.

[22] Charles Du Mont et al., Mercury Levels in the Cree Population of James Bay, Quebec, from 1988 to 1993/94, 158 CANADIAN MEDICAL ASSOCIATION JOURNAL 1440 (1998); Tom Clarkson, Methylmercury and Fish Consumption: Weighing the Risks, 158 CANADIAN MEDICAL ASSOCIATION JOURNAL 1465 (1998) ("Given the data presented by Dumont and colleagues, this would imply that most of the Cree are still at risk.") [hereinafter Clarkson].

[23] See RICHARDSON, supra note 3, at 343-345.

[24] Id.

[25] DONALD GRINDE AND BRUCE JOHANSEN, ECOCIDE OF NATIVE AMERICA 221 (1995).

[26] Id.

[27] Id. at 223 ("Rotting vegetation in the area had released about 184 million tons of carbon dioxide and methane gas into the atmosphere by 1990, possibly accelerating global warming around the world.")

[28] Forestry, supra note 15.

[29] See Clarkson, supra note 22, at 1465.

[30] UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, MERCURY STUDY REPORT TO CONGRESS, Vol. 1, 2-6 (1997).

[31] Id.

[32] Id.

[33] Clarkson, supra note 22, at 1466.

[34] Du Mont, supra note 22, at 1439-45 ("Logistic regression analyses showed that significantly higher levels of mercury were independently associated with the male sex, increasing age and trapper status.").

[35] D.L. Belinsky and H.V. Kuhnlein, Macronutrient, Mineral and Fatty Acid Composition of Canada Goose (Branta Canadensis): An Important Traditional Food Resource of the Eastern James Bay Cree of Quebec, 13 JOURNAL OF FOOD COMPOSITION AND ANALYSIS 101 (2000).

[36] See Clarkson, supra note 22, at 1466.

[37] Id. quoting Dewailly et al., Weighing Contaminant Risks and Nutrient Benefits of Country Food in Nunavik, 55 (1 Suppl) ARCTIC MED RES 13-19 (1996).

[38] Mark Bourrie, Native People Ate Tainted Fish Wile State Kept Quiet, INTER PRESS SERVICE, November 16, 2001, at http://www.ips.org/index.htm (Stating that the Quebec provincial government knew about high levels of arsenic, lead and mercury in the water and food supply of the Cree community Ouje-Bougoumou for two years before warning residents.).

[39] GRAND COUNCIL OF THE CREES, NORTH AMERICAN REGIONAL ACTION PLAN ON MERCURY PUBLIC CONSULTATION, OBSERVATIONS AND RECOMMENDATIONS SUBMITTED TO THE COMMISSION FOR ENVIRONMENTAL CO-OPERATION 5 (1999) ("Some older families continued [to fish], undeterred by the successive interventions to collect samples and warnings of impending risks. But the great majority of young and middle-aged households effectively ceased to use fish as they had done in the past. Most of the population, therefore, were no longer considered 'exposed'; but the underlying toxicological and biochemical issues remained largely unresolved."); Clarkson, supra note 22, at 1465-1466 (Dumont and his colleagues state, "It is likely that Crees have changed the type of fish eaten, from contaminated to less contaminated fish, or have decreased their total fish consumption considerably, or both." This is a crucial question. Was there a considerable fall in fish consumption? What were the alternate food sources?").

[40] GRAND COUNCIL OF THE CREES (EEYOU ISTCHEE), OBSERVATIONS AND RECOMMENDATIONS SUBMITTED TO THE COMMISSION FOR ENVIRONMENTAL CO-OPERATION BY THE GRAND COUNCIL OF THE CREES 4-5 (1999).

[41] KYMLICKA, supra note 12, at 130, discussing JAMES ANAYA, INIDIGENOUS PEOPLES IN INTERNATIONAL LAW 183 (1996).