Temagami

Introduction "Our understanding of the way the natural world works - and how our actions affect it - is often incomplete. This means that we [must] exercise caution, and special concern for natural values in the face of such uncertainty and respect the 'precautionary principal'." - Ontario Minister of Natural Resources, 1991 The History of the Forest Forests have long been recognized as having vast power, both through their potential and how it has been viewed by humans, as well as through their effect on humans in sometimes subtle ways. The inherent properties of wood have always made it attractive as a versatile resource but there are other, more subtle ways in which it affects people. The tropical rainforests, responsible for producing most of the earth's breathable air, have been given the lofty title of "lungs of the Earth," and as stated by the Canadian Encyclopedia Plus '93, "forests provide an additional, although intangible, benefit: the opportunity for renewal of the human spirit" (CAN ENCYC). Once humanity accepts these facts, we open ourselves up to profound responsibilities regarding their protection. Unfortunately for both ourselves and our environment, we have long deigned to shoulder these responsibilities, seeing only the obvious potential of the end product of wood; overall, humanity has always managed the forests very poorly, even before forest management became an issue. Since earliest civilized times, wood has been coveted as a resource for its ability to burn, as well as its pliable nature. With the discovery of fire, came hand in hand the need for fuel. Fortunately, trees have always been abundant in all reaches of the earth, which has made living in harsh climates easier, greatly increasing our already rapid rate of expansion. Eventually electricity replaced wood as a source of energy, but the uses for wood have expanded over time to include building material and paper, and to the present day trees remain important to industry on a global scale. Unfortunately, humans have always had a poor reputation in regards to their environment, the forests being no exceptions. We have always looked upon resources as something to be exploited - used to the fullest, then forgotten. Therefore it should come as no surprise to learn how clear-cutting of forests has become the norm, even knowing that the forest will likely not recover fully for generations after clear cutting and countless animals will die in the process. It should come as no surprise to learn of the appallingly large quantities of tropical rainforests destroyed each day merely to make room for resorts or temporary farmland that will eventually become desert land. It is not highly surprising to learn of these and other such facts, yet they are still terrible to behold, especially knowing that they continue to be true today and will most likely continue to be true in the future. The Forests of Canada The forestry industry has always adopted a "cut and get out" philosophy, which has been accepted and most often encouraged by land-hungry industrialized populations who view trees as little more than an obstruction to growth. (ENCARTA) Such philosophies mean in simple terms clear-cutting large tracts of land and running as quickly as possible, leaving behind nothing but slash, a slowly eroding landscape and animals searching for lost habitat. For a long time forestry was no more than trying to reap maximum profits, clear maximum land in minimum time and get out quickly. We have indeed come far since those times. Clear-cutting is now a thing of the past and strict measures are in place to ensure that logging is done in a sustainable manner. That can be assured . . . can't it? No, not so readily as it may seem; that we have come a far way already is evident but in which direction? Clear cutting, as will be shown, is not a thing of the past and as to the regulations in place... we shall see. These question, and many others besides, can be answered by looking at the case study of Temagami. The word Temagami has become inextricably associated with terms like "old-growth", "protest", "forestry", "environment" and many more. However the actual Temagami issue has always been shrouded in an impenetrable fog which has only lifted at two times in its history as a potential logging and mining site. Behind the fog, a great many things were going on but the focus on Temagami herein will be the two times it surfaced as a genuine concern. "Red Squirrel Road" and "Owain Lake" have become commonly heard phrases but the questions, those which will be examined herein, are more apparant; what do these key phrases mean? And more importantly, what have they to do with the law? Temagami is a prime example in determining the relationship between the environment and the law - both natural and positive. Forestry is a major issue in Canadain society. There are many fundemental problems with the industry and accociated attitudes as stands today but how can the situation be changed for the good of all concerned? This difficult question will be answered herein to a great extent and perhaps some light will be shed on a murky but important issue. Although not all aspects of the issue can be covered, this essay will, through the case study of Temagami, focus on the legal perspective of forestry - the laws which are in place, those which have been changed or should be changed, as well as those laws which are being broken by either side of the controversy - and outline some methods by which conservation can be acheived through our legal system. Part One: The History of the Logger "What are the roots that clutch, what branches grow out of this stony rubbish? Son of man you cannot say, or guess, for you know only a heap of broken images, where the sun beats, and the dead tree gives no shelter, the cricket no relief, and the dry stone no sound of water."--T.S. Eliot The Canadian Forestry Industry Forestry has been longstanding as an industry in Canada; in some ways it was the first real industry - as European settlers found a land of endless forest, they realized that lumber would be the prime resource. Today, approximately 300 000 Canadians are directly employed in the forestry industry - almost 15 percent.(Can Encyc. "Forestry") In practice, forestry means much more than merely cutting trees. Forestry is defined by Encarta '95 as "the management of forestlands for maximum sustained yield of forest resources and benefits." This may seem a simple definition, however the wording of it deserves further attention. First, forestry means management; management means looking after the forests rather than adopting a 'slash and burn' attitude. Second, forestry attempts to attain maximum yields; this appears to support the 'slash and burn' attitude, rather than a conservationist approach. However, the word 'sustained' is the catch; when added it means that this maximum yiled must be available year after year. Therefore, in theory, forestry is sustainable management, as the definition states. Past practices have strayed greatly from this definition. In North America, the first foresters were interested in only exploiting forests, worrying little about management and even less about sustainability. This view, which has persisted well into the 20th century, has always been supported by settlers who have viewed the immeasureable number of trees as an inconvenience which had to be removed before farms, houses, towns and roads could be built. (ENCARTA) As more and more settlers came to North America, agriculture began to expand, roads were built, and trees were cut and burnt more for room than for use as a resource. Such activity became common throughout the United States, as well as the lowlands of Canada where early settlers found the best soil for farmland. Unfortunately, once the majority of trees had been cut down, previously lush soil would begin to erode as rain and wind pounded on the unprotected earth. Under reasonable, small scale farming, such would be of little consequence, however when huge tracts of forest are removed at once, it becomes almost impossible to keep the farmland from turning to wasteland - one has only to look at ancient nations such as Mesopotamia, once a heavy agricultural area and now a vast desert, or the ever expanding Sahara desert to see the devestating effect of soil erosion. (CAN ENCYC) After a time, people began to understand this, at least in a crude sense. Forestry, it seemed, must be more than simply cutting down trees. The forests must also be managed to ensure more cutting in the future. It was not until the end of the nineteenth century, with the signing of the British North America Act in 1867, that forestry was considered important under Canadian law. It was written into the act that "The Management and Sale of the Public Lands belonging to the Province and of the Timber and Wood thereon" would be assigned to the jurisdiction of the individual provinces. (CAN ENCYC) Although this gave the forests some protection under the law in regards to supposed 'sustainability', there remained - as there still remains to an extent to this day, a greed which, for the most part, overpowered any thoughts of conserving for the future. The Ontario Forestry Industry The year 1893 marked the beginning of a somewhat dubious ecological protection program in Ontario with the establishing of the Algonquin National Park as a "public park and forest reservation, fish and game preserve, health resort and pleasure ground for the benefit, advantage and enjoyment of the people of the Province." (GRAY 92) The purpose of the park was the logging of the tall pines, rather than for any conservationist motive. Scattered parks were established on a purely ad hoc basis throughout Ontario for almost eighty years, during which exploitative logging grew and forests were destroyed. Eventually, starting in the 1960s and spreading in the 70s, people began to notice the forests dissapearing, began to see parks as more than merely recreational; more and more concerns were being voiced regarding "uncontrolled development, uncoordinated land-use planning, and the corresponding loss of wilderness." (GRAY 91) One of the outcomes of these protests was that the Ministry of Natural Resources developed the Ontario Provincial Park Planning and Management Policies - titled "The Blue Book". (GRAY) The blue book, which is still in use today, is perhaps the closest thing to forest protection in Ontario. It allowed a comprehensive park system to be created with six classes of park which could ensure some measure of protection to these areas. More parks were created but it was becoming apparant that these parks were doing little to stop the great change being forced on the landscape of Ontario. Writers from the World Wildlife Fund (WWF) state that "over the past 200 years Ontario's natural landscape has been changed on a scale greater than any other since glaciation." (GRAY 92) Most old growth (120+ yrs) pine forests have been cut and replaced with alien monocultural trees - to make future harvesting easier; the land of the Teme-Augama would come under dispute due to fear of such. Part Two: Forest Conservation In Ontario Political Activity In 1990, the election of the provincial NDP under Bob Rae appeared to herrald a new beginning for forestry conservation. Rae had been arrested a year previous in the protest over the Temagami Red Squirrel Road extension - which will be discussed further in part two - and appeared to place the environment high on his agenda. Promises were made to protect five previously unrepresented natural regions by 1994, to be added to the thirty-two already protected out of sixty-five [see appendix, map 2]. (GRAY 95) However little ever came of the promises; by the end of 1993 only one old growth area, inside Algonquin Park itself, was to be protected from logging and road building. Meanwhile, Howard Hampton, the new minister of natural resources, declared that forest harvest across the province was to be increased by up to 50 per cent as a result recommendations by a committee made up entirely of foresters, labour, and the government. (GRAY 94) Public interest groups were outraged; as a means of appeasing them, the government announced a "Keep it Wild" program. The program was said to be a means of protecting the old growth forests in a meaningful way but in the end it became more about public relations than anything. Bits and pieces of forest throughout the province were protected but the outcome was by absolutely no means sufficiant for sustainability. One good thing did come out of the NDP government; a piece of legislation which seemed minimal at the time but would have resounding influence from a legal perspective in the future, the Crown Forest Sustainability Act. The act requires that certain guidlines be followed by the MNR when approving any logging plans. (WILDLANDS) However, for the time being, it appeared that the NDP was as hurtful through their inaction as any past government. And today the PC government appears to be doing nothing to keep the out of control lumber industry in check. Logging practices continue to decimate the landscape, replacing it with rows of arrow straight man-made trees. It appears that each successive government is more willing to promise to support the environment but less willing in actuality to make any meaningful progress. In order to explain this in a meaningful way, the issue of the Temagami old growth forests should be examined; it is a perfect example of Ontario's battle between industry and the environment. Temagami Temagami is named as the land of the Teme-Augama. It is known as one of the most diverse ecosystems in Ontario, if not Canada; known for clean, clear lakes and "one of the highest quality lake trout fisheries remaining in Ontario"; (TEMAGAMI 1) for the 2,400 km of canoeable river systems; for one of the last remaining old-growth forests in the province. Temagami has been glorified by painters Archibald Lampman and David Brown Milne, as well writer Archibald Belaney - known as the Grey Owl. (CAN ENCYC) Also, Temagami is known for the controversy between industrialists and environmentalists over the wildlands it contains. In the course of the past century, loggers and miners have slowly eaten away at the Temagami wilderness while successive governments have sat idly by, and finally this became too much to bear. In the early seventies, the Teme-Augama Anishnaibi decided they must speak out; the method they chose was the launching of a formal challenge against the government's right to allow industry into their homeland. (TEMAGAMI 1) As word of the challenge spread, others joined the call and the opening stage was set for what would later become the first protest to be looked at herein; the Red Squirrel Road blockade. The Red Squirrel Road extension was perhaps the most expensive fifteen kilometres of road laid down by the Ontario government. The bill ended up at six million dollars - half of which was for security against the protesters. (MAITHERS) The Teme-Augama banded together with other concerned protesters, chaining themselves to bulldozers, blocking roads by sitting in the path of loggers, and destroying machinery; all in all, performing a great many acts of civil disobedience which will be discussed later. The outcome, besides the spending of copious amounts of money by both sides, was the setting up of the Comprehensive Planning Council (CPC) by the NDP, meant to "strengthen the role of local communities in the management of natural resources in the Temagami area." (MNR 1) Many protected areas within Temagami were proposed however, dispite making many protective recommendations, eventually it became clear that the CPC did not intend to recommend any sort of substantial protection. This brings the issue to where it stands today. "Red Squirrel Road" has been replaced with "Owain Lake" but from a legal perspective the concerns are the same. The provincial government appears to be even less environmentally friendly than the CPC. In fact, according to Northwatch, an independant environmental group, "seventeen of the thirty-nine recommendations of the CPC were not accepted beyond an amiguous 'agreement in principal' (ie. not in practice)." [see appendix] (NWNEWS) The Ministry, however, boasts that they have "increased environmental protection in the Temagami area, protected old-growth red and white pine and resolved long-standing land use issues." (MNR) The debate, which will be discussed in the next section, remains relatively the same, with a few twists. Industrialists still battle for the right to carry on with their jobs while environmentalists and Anishnaibi fight to protect the diverse wilderness. In order that a better background of the debate be presented, the concerns of each must be presented individually; only then can the actual legal conflict be truly appreciated. Part Three: The Temagami Debate "If Greenpeace devoted all the energy to northern forests as it did to tropical forests, we'd be in trouble" -- Tony Shebbeare, director of the Brussels office of the Canadian Pulp and Paper Association The Forester Almost fifteen percent of Canadians were employed directly in the forestry industry in 1989; (C.E.) since then, little has changed. This type of fact is the basis for what is, and always has been the industrialist response to environmentalist concerns; you can't criticise industry because it creates jobs. And clearly most people accept it, especially today as jobs are becoming more and more scarce. The forest industry has arisen, as was stated earlier, from an attitude of exploitation fostered by greed, expansion, and industrialization. Since early europeans first came to Canada, logging trees has been second nature, a part of the conquering of the country. Only today is there any apparant feeling of conservation; people are perhaps admitting, if somewhat reluctantly, that such practice as clear cutting might be wrong. However, though foresters may be beginning to reconcile a small amount of what has been long ingrained into the industry, the mentality remains today that industry cannot be impeded no matter the cost, as long as jobs are at stake. Basically, forestry today is just like any other industry; a means of raping wilderness such as Temagami in order to make a quick buck. Can they be blamed for wanting to earn a living? In the Temagami case, the MNR has been responsible for most of the logging facilities already set up in Temagami, however, according to the Wildlands League, a Toronto-based environmental organization, they have largely withdrawn from the area and will probably seek to hand management over to a large forest company. (WILDLANDS) As of yet, no such company has stepped forward, however several small companies have begun logging already. What these companies, along with the MNR, want, is the ability to conduct their industry as it has always been conducted; the adage "if it's not broken, don't fix it" seems to apply perfectly to them as they vehemently deny myths like global warming and animal extinction. They feel that the concessions allowed by the MNR in this case are more than fair, and there is the suspiscion that environmentalists wont be happy until all forestry activity has been eliminated. The Environmentalist The environmentalists do not have the same long-standing base that foresters do. The environmentalist movement itself is a recent thing, beginning in the 1960s and 70s with the Green Revolution. Since that time, such individuals and groups have sprung up all around the globe; in the beginning no more than a minor annoyance to industrialists, farmers and average citizens, yet eventually becoming a major factor to be considered by industrialists whenever they attempt anything affecting the environment in any way. Today, environmental concerns are bringing many people to believe that resources are not as 'unlimited' as everyone has believed for so long and the industrial movement is finding it more and more difficult to accomplish the same goals they would have easily accomplished as recently as ten years ago. In response to the Temagami issue, four prominent environmental groups have risen to to stand against the industrialists. They are the Wildlands League - headed by Tim Gray in Toronto, Northwatch - the Northeastern Ontario environmental coalition, Temagami Lakes Association - a powerful cottage owners organization, and Friends of Temagami - a coalition created for the specific purpose of fighting against Temagami loggers and miners. What they want, as outlined in the Wildlands League's Future of Temagami Plan, is a Wildland Reserve established to protect important watershed areas, as well as several other sites of ecological value, amd the Red Squrrel as well as two other roads permenently closed where they enter the Reserve. (TEM. 3) They feel that these measures are the only way to preserve the ecological diversity found in the Temagami wilderness; their feeling is that the MNR and the forestry industry simply do not care about ecological stability. From a legal perspective, there is much to discuss in the Temagami case. Some laws have already been hinted at but little has been said yet about specific legal issues. There are three different aspects of the law which are brought into play in this issue; the purely criminal aspect of civil disobedience, the environmental laws and regulations (or lack thereof), and the ever pressing conflit between positive and natural law. These will all be dealt with individually in the next section, then weighed together to come up with some definite conclusions. Part Four: The Law of the Land "What gives us the right to take the law into our own hands? The answer is simple. Our birthright as natural creatures, citizens of the earth, gives us the right to uphold and defend the laws of nature." ---Watson (TALOS 23) Civil Disobedience According to Abbie Hoffman, "the best way to get heard is to get arrested, and the more times the better." Deemed troublemakers by some and revolutionary by others, the Red Squirrel Road and Owain Lake protesters did just that. Scores of people; sitting in the dead center of the road and refusing to move regardless of threats or coersions, destroying bulldozers or chaining themselves to them, sitting on platforms high atop the trees, hammering metal stakes into various trees to destroy chainsaws; and calling it all civil disobedience. The end result? Many arrests were made, yet few were ever charged for the acts of mischief (mischief being the most likely charge) - most were held for a night or even dropped off in North Bay; those who actually caused damage were never caught or pursued. The government was forced to pay three million dollars for security measures or damages caused by the protesters in the Red Squirrel Road building alone, and the builders lost a great deal of time and money. The legal battle over the civil disobedience is of two views. Some people view the acts as a waste of time and tax payers money, holding the belief that if there is a legal way to protest, it should be used rather than resorting to illegal practices. Clearly, such reasoning is sound; there are many legal methods of protesting and governments always hold the policy of being more willing to listen to the legal protesters than lawbreaking troublemakers. Knowing such, some might wonder as to the reasoning behind such a clearly premeditaited group crime. The answers are varied however, looking at the effects of the disobedience, one comes to mind. Media. Those of the second view towards civil disobedience see it as a means of voicing their concerns to the public effectively and quickly. The fact that their actions are illegal serves only to attract media attention. To them it is a last ditch effort at raising public concern and perhaps forcing the government into action. To a large extent they have succeeded; the only times Temagami has really come up in headline news were during the two large-scale protests. The environmentalists also believe that, as a justification to the laws that are being broken, natural law must prevail over positive law; such will be dealt with later. First, the issue of environmental law must be dealt with. Government Legislation / Wildlands League Lawsuit Environmental legislation is one of the big issues under contention. Environmentalists say that under current legislation the old growth forest cannot sustain itself, provided that loggers take full advantage of the lack of any real legislation. The industrialists, backed by the government, believe that they are just trying to do their job and that the current legislation is strict enough, protecting over fifty per cent of the remaining old growth pines. The actually protected areas fall under the Ontario Provincial Park Planning and Management Policies but what is under contention today is the Crown Forest Sustainability Act. This past September, the Wildlands League and Friends of Temagami, represented by the Sierra Club Legal Defence Fund, filed a law suit against the government under the CFSA, claiming that the MNR had "failed to ensure that logging will protect wildlife, ecosystems or the public interest".(SIERRA) This lawsuit is in itself a landmark, being the first attack on Ontario forestry from a legal point of view. As simply stated by Tim Gray of the Wildlands League, "we are seeking to have the Ontario Court order the Minister to obey the law . . . we had to act now to draw the public's attention to the MNR's plans to rid themsleves of even these minimal laws to protect the public interest." (TEM. UPDATE) As such, the earilier government's weak legislation has become an unlikely hero in the eyes of the environmentalists. The two groups sought an injuction forcing a 'stay' of the logging in the Owain Lake forest area until the case was completed; their feeling was that "we will lose the forest by the time our case is heard." (TEM. UPDATE) After three days of testimony and four days of deliberation by an Ontario Divisional Court judge, the request was denied. However, the case will proceed to full trial this winter and the outlook is optimistic for the environmentalists. If the case succeeds, the industrialists will be forced to cease all activity in the area until the MNR develops the neccessary environmental guidlines. There are few other pieces of legislation corresponding with forestry conservation - it is mainly left up to the individual regional MNR to establish guidlines as regarding their area. The Environmental Assessment Act requires that an assessment be carried out prior to allowing logging of an area, but the Environmental Protection Act does not even mention forestry. That there is no real forestry or even habitat protection in any current Canadian legislation is perhaps an indication that governments still don't realize the full consequences of our present practices. That thought brings up the issue of whether such dire circumstances as environmentalists see us to be in - and with no legislation to back their claims up - warrant the breaking of laws set down by governments - in order to enforce those made by nature. Natural vs. Positive Law Early philosophers believed that those laws created by humans (positive laws) should stem from and reflect those created by nature (natural laws). Cicero is credited as saying that "civil or human laws should be set aside or disobeyed if, in the minds of 'wise and intelligent men,' the laws were deemed in conflict with those of nature." (TALOS 17) In some ways however, along the way, humanity has failed to see the connection or it being severed. Environmental resources have always caused some controversy in this regard; human greed sometimes has an insidious way of overriding care for nature. People are unwilling to compromise their ability to make money, even though it might mean that nature is severly damaged in the process. The desire to make money cannot, in itself, however, be seen as greed; in that respect we must aknowledge that loggers are not to blame for distruction they wreak. It is the law makers themselves who are perpetuating the constant rate of natural destruction both through inaction and harmful action. The question then arises; are environmentalists justified in disobeying positive law In order to bring about what they see as disobedience to higher law? The question brought up in this case is highly disturbing; clearly, the activists acted in disobedience to the law as defined by our government. Yet, just as clearly, there was a cause for their actions - to save ancient forests and the ecological diversity they hold from annihilation and replacement by tree farm. The question in the case is highly sim