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“Home and Native Land”: How the Eeyouch in Québec and the Sámi in Norway Used Hydropower Developments to Democratize Legislation

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“Home and Native Land”: How the Eeyouch in Québec and the Sámi in Norway Used Hydropower Developments to Democratize Legislation “HOME AND NATIVE LAND”: HOW THE EEYOUCH IN QUÉBEC AND THE SÁMI IN NORWAY USED HYDROPOWER DEVELOPMENTS TO DEMOCRATIZE LEGISLATION ANN ÅSFRID HOLDEN Bachelor of History and Education, 1998 Volda University College and Bergen University A Thesis Submitted to the School of Graduate Studies of the University of Lethbridge in Partial Fulfilment of the Requirements for the Degree MASTER OF ARTS Department of History University of Lethbridge LETHBRIDGE, ALBERTA, CANADA © Ann Åsfrid Holden, 2014 “HOME AND NATIVE LAND”: HOW THE EEYOUCH IN QUÉBEC AND THE SÁMI IN NORWAY USED HYDROPOWER DEVELOPMENTS TO DEMOCRATIZE LEGISLATION ANN ÅSFRID HOLDEN Date of Defense: August 25, 2014 Dr. Christopher Burton Associate Professor Ph.D. Co-supervisor Dr. Heidi MacDonald Associate Professor Ph.D. Co-supervisor Dr. Jo-Anne Fiske Professor Ph.D. Thesis Examination Committee Member Dr. Carol Williams Associate Professor Ph.D. Thesis Examination Committee Member Dr. Thora Martina Herrmann Associate Professor Ph.D. Thesis Examination External Supervisor, Université de Montréal Dr. Christopher Epplett Associate Professor Ph.D. Chair, Thesis Examination Committee ii Dedication To Matthew, Katarina and Erika for the love and support during the thesis writing. iii Abstract This comparative study examines how Indigenous people, the Eeyouch in Québec and the Sámi in Norway, have secured their right to be consulted prior to new developments on their land through the James Bay and Northern Québec Agreement and the Finnmarksloven. The longstanding tension between notions of private property and collective land-use rights are also found in these laws: the Agreement broke loose from the Indian Act’s patrilineal base of collective land ownership, and the Finnmarksloven emphasized land as important to Sámi culture while recognizing the local reality of ethnic diversity. Consultation based on dialogue with an aim to reach consensus was an important aspect of traditional Indigenous law-making. Ostrom’s theories on local land governance, combined with Habermas’ theories on colonization of the lifeworld, are used to illuminate the Sámi and Eeyouch agency to incorporate their own cultural and normative aspects into national laws. iv Acknowledgements: I would like to express my deep gratitude to Dr. Christopher Burton, my research supervisor for his patience when I had to find my own path and for always encouraging me to think deeper. His multiple pages of thoughtful comments on every chapter were like a lighthouse as I ventured out into unfamiliar waters. I would also like to thank my supervisor Dr. Heidi MacDonald who through encouragement, the opportunity to do research assistant work and help with the Parkland scholarship made me feel competent enough to finish this project. I am also grateful to the committee members Dr. Jo-Anne Fiske, for the inspiration and insights into aboriginal law, and Dr. Carol Williams whose graduate student meetings kept my progress on schedule. Assistance with finding sources provided by librarians Marinus Swanepoel, Maxine Tedesco, and Sandra Cowan, was greatly appreciated. I would also like to extend my thanks to Kirsti Strøm Bull who advised me on how to find and use Norwegian legal cases, to Jan Åge Riseth who connected me to the right people, and advised me on literature, and to Carmen Derkson for inspiring me to write a master’s thesis. Thank you to the cohort, especially Alan Santinele Martino, Leon Crane Bear, Arielle Perrotta, Elizabeth Young, and William Doberstein for feedback on my writing and for showing me high standards by sharing yours. Finally, I wish to thank my family for their support and patience throughout my study. v Table of contents: Dedication………………………………………………………………………………………….iii Abstract…………………………………………………………………………………………….iv Acknowledgements…………………………………………………………………………………v Table of contents…………………………………………………………………………………...vi Abbreviations……………………………………………………………………………………...vii Introduction………………………………………………………………………………………………1 Electrification socialists and electrification of the North…………………………………………...2 Legal methods………………………………………………………………………………………5 Methods……………………………………………………………………………………………11 Chapter 1: Contested Territory: Eeyouch and Sámi jurisprudence meet Canadian and Norwegian jurisprudence…………………………………………………………………………………………...17 The Royal Proclamation of 1763 and the Lapp Codicil of 1751………………………………….17 Land ownership traditions…………………………………………………………………………23 The Law of Public Lands of the Dominion of 1872………………………………………………..28 The Indian Act……………………………………………………………………………………..30 Land rights in Finnmark…………………………………………………………………………...36 Governing land in Eeyou Istchee…………………………………………………………………..43 Conclusion…………………………………………………………………………………………46 Chapter 2: Confrontations and resistance over closures of the commons……………………………...47 James Bay Region Development Act: Bill 50………………………………………………………55 Fragmented political opposition…………………………………………………………………....58 Kanatewat et al. v. James Bay Development corp. et al., 1975…………………………………....63 The Alta case, 1982………………………………………………………………………………..69 Conclusion…………………………………………………………………………………………74 Chapter 3: The right to be consulted: “We have endured as Crees because we have adapted to the changes in the land……………………………………………………………………………………..77 The Sámi Rights Commission (Samerettsutvalget)…………………………………………….....87 Connecting the Sámi to the land…………………………………………………………………..90 International meetings…………………………………………………………………………….92 The Brundtland Report………………………………………………………………………........96 Nation building in Eeyou Istchee………………………………………………………………....97 Conclusion………………………………………………………………………………………..104 Conclusion: “As long as the sun rises and the river runs.”……………………………………………106 Bibliography…………………………………………………………………………………………..113 Appendix 1: Definitions………………………………………………………………………….126 vi Abbreviations: CEAA: Canadian Environmental Assessment Agency CPR: Common Pool Resource CRA: Cree Regional Authority CTA: Cree Trapping Association EEC: European Economic Community EFTA: European Free Trade Association EU: European Union FTA: Free Trade Agreement GATT: General Agreement on Tariffs and Trade ILO: International Labour Organization IQA: Indians of Québec Association JBNQA: James Bay and Northern Québec Agreement JBRDA: James Bay Region Development Act (Bill 50) NAFTA: The North American Free Trade Agreement NIB: National Indian Brotherhood NRL: Norske Reindriftsamers Landsforbund [Reindeer Herders’ Organization] NS: Norsk Sameråd NSR: Norske Samers Riksforbund [National Association of Norwegian Sámi] SLF: Samenes Landsforbund [Sámi Association] UN: United Nations UNDRIP: UN Declaration on the Rights of Indigenous Peoples WCIP: World Council of Indigenous Peoples WGIP: UN’s Working Group on Indigenous Populations ZEC: zone d'exploitation contrôlée (ZECs) or “controlled exploitation zones” vii Introduction: Finnmark, the northernmost county of Norway, is located well above the Arctic Circle, and because of its latitude one might expect a very cold climate. The continental climate, with large differences between winter and summer temperatures, is primarily found on the interior plateau, on Finnmarksvidda, a tundra that stretches from Finland in the east to Alta in the west.1 The open landscape on the tundra is rich in lichen, shrubs and cloudberries. The mountain plateau “falls steeply into the fjord,” creating a dramatic landscape, where farms have utilized the green grass for a few sheep or cows.2 The rivers are like arteries in this landscape, rich in fish, with the most fertile soil along the river banks. The Gulf Stream keeps the coast line ice-free; the larger stream goes back to the Atlantic at Troms county, while a smaller current goes to the Barents Sea.3 In 1970, 71 982 people lived in Finnmark, a territory slightly bigger than Denmark (46 537.2 km).4 Eeyou Istchee, in Northern Québec, is located south of the Arctic Circle; however, without the Gulf Stream much of the coastline on the James Bay is frozen between December and May. The land is part of the Canadian Shield, and the landscape was formed by ice and water.5 Water still defines the landscape, as millions of lakes are woven between rolling hills and marshes. The interior plateau reaches a height of 700 meters, and it is on this plateau that the headwaters of eight large rivers and their many estuaries are found. Four of the nine communities of Eeyou Istchee are located by the coast, and the wildlife the coastal zone has to offer is important to the Eeyou or “coasters’” livelihood.6 Boreal forest covers much of the land in the southern part while the northern parts, the tundra, make an excellent habitat 1 Gro B. Ween and Marianne Lien, “Decolonialization in the Arctic? Nature Practices and Land Rights in the Norwegian High North,” Journal of Rural and Community Development 7, (2012), 96. 2 Ween and Lien, “Decolonialization in the Actic,” 96. 3 Ween and Lien, “Decolonialization in the Arctic,” 96. “Gulf Stream: Charting the chaotic current that warms Norway,” The Research Council of Norway. Last accessed 29/5/2014. http://www.sciencedaily.com/releases/2011/12/111202091148.htm. The North Atlantic Current – popularly known as the Gulf Stream – warms Norway and Northern Europe, but if its waters flowed smoothly north along the Norwegian coastline, the current would deliver far less warmth to Norway. Researchers have discovered that it is the chaos of the seas that warms the country. 4 Norges Offisielle Statistikk XII 263, Statistical Yearbook of Norway 1970, 89th Issue, Central Bureau of Statistics of Norway, Oslo: 1970,
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