Temagami Essay, Research Paper

Temagami

Table of Contents

Introduction2

The History of the Forest2

The Forests of Canada3

Part One: The History of the Logger5

The Canadian Forestry Industry5

The Ontario Forestry Industry7

Part Two: Forest Conservation in Ontario8

Political Activity8

Temagami9

Part Three: The Temagami Debate11

The Forester11

The Environmentalist12

Part Four: The Law of the Land13

Civil Disobedience13

Government Legislation / Wildlands League Lawsuit15

Natural vs. Positive Law16

Conclusion17

Summation17

Future Outlook18

Bibliography and Suggested Reading21

Appendix.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

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