November 15 marked the 50th anniversary of the Malouf decision, which recognized existing Cree and Inuit rights in northern Quebec. It was the first explicit judicial recognition of Indigenous rights in Canadian history.
Quebec Superior Court Judge Albert Malouf’s ruling in Chief Robert Kanatewat et al. versus James Bay Development Corporation et al. granted an injunction to stop work on the James Bay hydroelectric project, which eventually led to the James Bay Northern Quebec Agreement (JBNQA).
After learning of Quebec Premier Robert Bourassa’s “project of the century” in 1971, Cree leadership met with the Indians of Quebec Association, who supported their battle as a focal point for all Indigenous rights. Billy Diamond, Philip Awashish, Peter Gull and other young leaders asked Chiefs and tallymen throughout Eeyou Istchee to testify in court proceedings.
Before deciding whether to go to court, a last meeting was held in October 1972 between Bourassa and Billy’s father, Malcolm Diamond. When Bourassa abruptly left without waiting for a translation, Malcolm Diamond told his son to “use the white man’s law to stop this hydro project” – and lawyer James O’Reilly was instructed to take the case to court.
“I left a large firm because I believed in the fight for the Crees,” O’Reilly told the Nation. “The issue was a fight for survival – the Cree people could not conceive of how they could continue with their way of life.”
Fort George Chief Robert Kanatewat was a key figure in this opposition, working very closely with Billy Diamond and hosting several meetings in what is now Chisasibi. While the northern Cree would be most impacted by the proposed project to flood over 1,000 square miles of land, the southern Cree strongly backed Kanatewat’s decisions.
“Everywhere we went, it was the same thing: ‘We’re going to do whatever the Fort George people say,’” Kanatewat later recalled. “But even the Fort George people didn’t know what to do – and I was their Chief. The old people wouldn’t believe [damming the river] could be done. Every time I had to ask myself: Am I doing the right thing?”
O’Reilly believes Kanatewat was “a leader’s leader” who never received the credit he deserved in this struggle. He said Kanatewat was militant and aggressive, and perfectly complemented Diamond’s political skills.
The legal strategy was to demonstrate how the Crees and Inuit occupied all the territory with a viable way of life that would be considerably damaged by the James Bay project. Over 30 representative Cree and Inuit witnesses emphasized their cultural practices and profound spiritual connection with their ancestral lands.
During 71 court days spanning more than a year and a half, Justice Malouf heard 167 witnesses and was presented with 312 exhibits. While a wide range of experts – including John Spence, Alan Penn and Harvey Feit – testified on behalf of the Crees, O’Reilly said Hydro-Québec’s experts countered with the project’s importance for the province, arguing that there would be “minimal damages to the Crees and in any event they have no rights.”
While Justice Malouf’s initial analysis of the legal arguments suggested the Cree people had apparent rights, his final judgment sent shock waves through the system. He studied various constitutional texts, treaties and previous decisions involving Indigenous peoples to find that Cree and Inuit rights to these lands had clearly never been extinguished.
“He was a very courageous judge,” asserted O’Reilly. “We were concerned that very few judges would have done this – maybe one out of 100, but we found that one. We never knew during the whole hearing. We called him the Sphinx. No expression, he treated everybody equally.”
Coming a few years after the federal government’s infamous “White Paper,” which explicitly aimed to officially assimilate all Indigenous people, Malouf dismissed spurious arguments the Cree were a warlike people who subsisted mainly on store-bought food. Noting the irreparable damage to wildlife and vegetation, Malouf concluded that the area’s entire ecosystem would be destroyed.
“This land had the status the old trappers had claimed it had,” declared Malouf. “It was their garden, which had provided them with their livelihood for longer than history could record.”
With no environmental impact studies besides hasty work by an inexperienced task force after the decision had been undertaken, subsequent researchers observed Bourassa’s project lacked basic preparation. With projected costs and resulting jobs having no apparent factual basis, Malouf found more than sufficient grounds for an interlocutory injunction.
“This judgment was a landmark in the whole development of Aboriginal rights and real progress for the environment,” O’Reilly explained. “In the 1960s, Indians were a bit of an irritant but not an obstacle. The James Bay decision was the first time they came up against a real challenge.”
The decision made front-page news across Quebec as the project’s workers returned south. Malouf’s carefully considered judgment was suspended a mere week later and later overturned by the Quebec Court of Appeal based only on an argument that the greater public’s convenience overruled the relative few in the North.
Despite this reversal by what O’Reilly calls “a very conservative court,” the Kanatewat decision marked a pivotal turning point in the relations between Indigenous peoples and governments across Canada. Malouf’s judgment was logically so strong that Indigenous rights could no longer be ignored without risking projects being blocked.
“There was a far greater concern on the part of Quebec and Canada there would be a final judgment that would strongly reinforce the rights recognized by Justice Malouf,” said O’Reilly. “That was the impetus for them to try to resolve the land-claims settlement.”
It was only after further court battles dragged on and the James Bay project continued to advance that the Crees agreed to negotiate what became the JBNQA. With environmental rights, income security and governance mechanisms unrivalled to this day, the JBNQA would have been impossible without the Malouf decision asserting strong Cree rights.
“A hundred agreements later, it all adds up to a special constitutional regime for the Crees of Eeyou Istchee,” concluded O’Reilly. “That special constitutional regime is there in Section 35 of [Canada’s] Constitution Act. All that goes back to one courageous judge who called it the way he saw it based on his conscience.”