Quebec (Attorney-General) v. Moses

Supreme Court of Canada – [2010] 1 S.C.R 557

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Quebec ConsultationEnvironmental assessmentTreaties

Quote

The importance and complexity of the actual text is one of the features that distinguishes the historic treaties made with Aboriginal people from the modern comprehensive agreement or treaty, of which the James Bay Treaty was the pioneer. We should therefore pay close attention to its terms. (par. 7 of the decision).

Issue

Does the JBNQA exempt a mining project within its territory from an independent environmental assessment inquiry by the federal government?

Decision

Both the federal and the provincial environmental assessment inquiries must be completed. The federal assessment is compatible with the JBNQA (5 against 4).

Parties

Between: Quebec

And: Grand Chief Dr. Ted Moses, Grand Council of the Crees (Eeyou Istchee), Cree Regional Authority, Canada, Honourable David Anderson, in his capacity as Minister of Environment, Canadian Environmental Assessment Agency and Lac Doré Mining Inc.

Interveners: Saskatchewan and the Assembly of First Nations

Facts

In 1975, the Cree and Inuit of Quebec settled their land claims by signing the James Bay and Northern Québec Agreement (JBNQA hereafter) with the provincial and federal governments, the first modern treaty with Aboriginal peoples in Canadian history. The JBNAQ renew the special relationship between the Crown and these two Aboriginal peoples by providing new rights and obligations for all parties. The Cree and Inuit surrendered their Aboriginal rights and title in exchange of 25% of the royalties from all future developments, excepting the James Bay hydroelectric project, on their traditional lands for the next 50 years. They also received $150 million in compensation for the environmental damages caused by the project. They were also guaranteed that they could continue their hunting, fishing and trapping activities. (Goudreau, 2002: 22).

The environmental protection regime enacted by the JBNQA provided for environmental assessment for all development of Category III lands by a number consultative and recommending committees in which both Cree and Inuit participate. The final decision rests in the hand of either the Quebec Cabinet or the federal Cabinet, depending on the jurisdiction of the matter.

In 1999, Lac Doré Mining Inc petitioned the Quebec government to allow it to open and operate a vanadium mine located on Category III lands. Under the JBNAQ, it is to the provincial Administer instructed Lac Doré Mining Inc. to give it further information on the potential environmental impacts of its mining operations. In 2003, Lac Doré Mining presented the impact study to the provincial Administrator which concluded that the vanadium mine waste would be deposit in bodies of water crucial for the reproduction of walleye. There was no indication as to the scale or nature of the precise impact or on the manner to mitigate damage to the fish habitat.

The Review Committee then contacted the Canadian Environmental Assessment Agency since the project could impact on a federal matter, fisheries. In 2004, the Review Committee, which is responsible for recommending to the Quebec cabinet if a development project should proceeds, released its report. It recommended that the provincial government ask of Lac Doré Mining to make adjustments and modifications to its project in order to give walleyes access to their spawning grounds. It also expressed general concerns as to habitat would be viable after the mining operations begin.

The Canadian Environmental Assessment Agency decided that the matter fell under its exclusive jurisdiction of fisheries, and that the company needed to go through federal environmental assessment process under the Canadian Environmental Assessment Act instead of the JBNQA one. The Cree then petitioned Quebec Superior Court for a declaratory relief and all environmental assessment were suspended.

Arguments

Quebec: The federal government is bind to issue a permit if the Lac Doré Mining project is approved by the Quebec government, acting as the provincial administrator under the JBNQA. Even though fisheries fall under exclusive federal jurisdiction, according to s. 91(12) of the Constitution Act, 1867, the interpretation of the JBNQA exclude the application of the Canadian Environmental Assessment Act.

The Cree: They objected to Quebec’s position. The requirement that the federal government must solely base its decision to hand out a permit or not on the provincial review process is legally incorrect. When constructing the JBNQA, a federal environmental assessment process for the mining project is essential and required under federal legislation. The federal procedure must not be used as a substitute for the provincial review process – both must be conducted.

Canada: The federal environmental assessment procedure is applicable because the Fisheries Act requires it for every project that has potential impact on fisheries, which is an exclusive federal matter. Since it concerns natural resources, the provincial environmental assessment process is also triggered.

Decision of the lower courts

Superior Court of Quebec, 2006: Even though the project affects a provincial matter and a federal one, the intention of the JBNQA is to hold only one environmental assessment. In this case, only the provincial review process is applicable since the procedure under the Canadian Environmental Assessment Act does not allow for enough Cree participation in the process, which is in contraction with the JBNQA. This Agreement, a tripartite treaty between the Cree and both the federal and provincial governments, provides that in case of conflict between the JBNQA and a provincial or federal legislation, the Agreement is applied.

Court of Appeal of Quebec, 2008: The federal environmental assessment was rightfully triggered by the Lac Doré Mining project, because it has potential impact on fisheries. The JBNQA must be interpreted broadly and liberally, in light of the Crown fiduciary obligations towards the Cree, and by analysing the parties’ intention and the context under which it was concluded. The participatory rights of the Cree are not protected under the federal law. The JBNQA process must be applied, and the recommendation must be made to the federal Cabinet instead of the Quebec Cabinet.

Reasons for Judgement

Jury

McLachlin, Binnie, Fish, Rothstein, Cromwell

Reason

The James Bay Northern Quebec Agreement is a modern treaty that was written with great care, by parties with lawyers on both sides. It is more than 400 pages long, and therefore the treaty interpretation principles that were elaborated in Badger and later cannot be directly applied – the particular nature of modern comprehensive agreement must be considered, and its terms respected.

The Canadian Environmental Assessment Act is not inconsistent with the JBNQA. The Agreement states that the mine promoter must procure the necessary permits from the concerned level of government. For the mine, the Quebec Cabinet must first approve the project. After, the promoter must obtain a fisheries permit under the Fisheries Act because of the potential impact on a species habitat. To issue the permit, an environmental assessment by the federal government is required under the Fisheries Act. A comprehensive study must be conducted, which include public consultation and participation.

There is no conflict between the federal assessment procedure and the one contained in the JBNQA, because the latter specifically provides for the involvement of the federal government to review projects in the Territory affecting its jurisdiction. The process of the Canadian Environmental Assessment Act also must be applied as to respect the Crown’s fiduciary duty towards the Cree.

Since the federal government is opened to collaborate with the provincial review process, there will be no additional delays and costs for taxpayers and the concerned parties. It will tailor its assessment procedure to reflect the context of the proposal: since it is located in JBNQA territory, it will undoubtly involve the Cree population.

Impact

The Moses decision marked the first the Supreme Court had to interpret the JBNQA.

The Grand Council of the Cree was satisfied with the decision. It feared that the mining development would endanger the fisheries habitat in Lac Doré and prevent them from exercising their treaty right to fish. It also wanted to fully participate in a future federal process at all stages. According to the Grand Chief Matthew Coon Come, the provincial environmental assessment process would have only taken into account the mine itself, and not the potential effects it could have on fisheries. The decision also recognized that the federal will have to consult with the Cree and ensure their participation, even though the Canadian Environmental Assessment Act does not specially provide for a mandatory consultation.

In 2002, the Cree and Premier Bernard Landry signed in Waskaganish the Agreement Respecting a New Relationship Between the Cree Nation and the Government of Quebec, commonly known as the “Paix des Braves”. At that time, Quebec’s obligations concerning community and employment development under Section 28 of the JBNQA had yet to be implemented. The Cree gained control over these obligations and receive annual financing to carry them out (Agreement concerning a New Relationship, s. 6.1 and 7.21).

In 2002-2003, they received $23 million in compensation. The amount doubled in 2003-2004 and reached $70 million in 2004-2005. The same payment is kept for each subsequent year and is subject to an indexation factor (Id., s. 7.3 to 7.6). Also, a more equitable revenue sharing mechanism for any forestry, hydroelectricity activities on the JBNQA territory is put in place with this new agreement. The Paix des Braves also provides for changes in the province’s forestry regime in order to adapt to the Cree’s traditions, value sustainable development on the JBNQA territory and increase the Cree participation in planning and managing these resources (Id., 3.1). The Cree consented to two new hydroelectric projects, Eastmain-1 and Eastmain-1-A/Rupert, valued at more than $4 billlion (Id., s. 4.7 and 4.11; Secrétariat aux affaires autochtones du Québec, 2010: 2).

As for future mining projects, Québec reaffirmed its position that they have to undergo the environmental evaluation under the JBNQA. No mention of the federal government involvement is made (Agreement Concerning a New Relationship, s. 5.1). Before the signature of the Paix des Braves, the Cree had sixteen pending litigation cases against the Government of Quebec. They agreed to end them in the spirit of a renewed cooperation (Id., s. 9.3 to 9.5). A veil of secrecy surrounded the negotiations between Eeyou Istchee and the Government in Quebec and the communities were not consulted beforehand. A referendum was held in the Cree communities and the Paix des Braves was ratified by eight of the nine communities. The village of Chisasbi, located the nearest to the La Grande generation complex and the most affected by the environmental impacts of the hydroelectrical development, rejected it, but there was also strong opposition in Waskaganish and Nemiscau. Opponents feared that the projected diversion of the Rupert River would damage beyond reparable their traditional territories and that the generations to come would not be able to carried their traditional way of life (Carlson, 208: 243)