Essay/Term paper: Temagami

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Temagami

Table of Contents

Introduction 2
The History of the Forest 2
The Forests of Canada 3

Part One: The History of the Logger 5
The Canadian Forestry Industry 5
The Ontario Forestry Industry 7

Part Two: Forest Conservation in Ontario 8
Political Activity 8
Temagami 9

Part Three: The Temagami Debate 11
The Forester 11
The Environmentalist 12

Part Four: The Law of the Land 13
Civil Disobedience 13
Government Legislation / Wildlands League Lawsuit 15
Natural vs. Positive Law 16

Conclusion 17
Summation 17
Future Outlook 18

Bibliography and Suggested Reading 21

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