SUPREME
COURT OF CANADA
Between:
Attorney General
of Quebec
Appellant
and
Grand
Chief Dr. Ted Moses, Grand Council of the Crees
(Eeyou
Istchee), Cree Regional Authority, Attorney General
of
Canada, Honourable David Anderson, in his capacity as
Minister
of Environment, Canadian Environmental
Assessment
Agency and Lac Doré Mining Inc.
Respondents
‑ and ‑
Attorney
General for Saskatchewan and
Assembly
of First Nations
Interveners
Coram: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish,
Abella, Charron, Rothstein and Cromwell JJ.
Reasons for
Judgment:
(paras. 1 to 56)
Dissenting
Reasons:
(paras. 57 to 143)
|
Binnie J. (McLachlin C.J. and Fish, Rothstein and Cromwell
JJ. concurring)
LeBel and Deschamps JJ.
(Abella and Charron JJ. concurring)
|
______________________________
Quebec (Attorney General) v. Moses, 2010 SCC 17, [2010] 1
S.C.R. 557
Attorney General of Quebec Appellant
v.
Grand Chief Dr. Ted Moses, Grand Council of the Crees
(Eeyou Istchee), Cree Regional Authority, Attorney General
of Canada, Honourable David Anderson, in his capacity as
Minister of Environment, Canadian Environmental
Assessment Agency and Lac Doré Mining Inc. Respondents
and
Attorney
General for Saskatchewan and
Assembly of First Nations Interveners
Indexed as: Quebec (Attorney General) v. Moses
2010 SCC 17
File No.: 32693.
2009: June 9; 2010: May 14.
Present: McLachlin C.J. and Binnie, LeBel,
Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.
on appeal from the court of appeal
for quebec
Environmental law — Environmental assessment —
Mining project — Project situated in James Bay area of Quebec covered by treaty
between Aboriginal peoples and provincial and federal governments — Treaty
setting out comprehensive procedures for environmental impact assessments and providing
that “a project shall not be submitted to more than one (1) impact assessment
and review procedure unless such project falls within the jurisdictions of both
Québec and Canada” — Project falling within provincial jurisdiction but having
significant impact on fish habitat — Fisheries within federal jurisdiction —
Whether only provincial environmental assessment applicable — Whether treaty
excluding assessment of project under federal environmental assessment
legislation — James Bay and Northern Québec Agreement, ss. 22.6.7, 22.7.1,
22.7.5 — Canadian Environmental Assessment Act, S.C. 1992, c. 37 .
Aboriginal law — Treaty — Environmental assessment
— Mining project — Project situated in James Bay area of Quebec covered by
treaty between Aboriginal peoples and provincial and federal governments —
Treaty setting out comprehensive procedures for environmental impact
assessments and providing that “a project shall not be submitted to more than
one (1) impact assessment and review procedure unless such project falls within
the jurisdictions of both Québec and Canada” — Project falling within
provincial jurisdiction but having significant impact on fish habitat —
Fisheries within federal jurisdiction — Whether only provincial environmental
assessment applicable — Whether treaty excluding assessment of project under
federal environmental assessment legislation — James Bay and Northern Québec
Agreement, ss. 22.6.7, 22.7.1, 22.7.5 — Canadian Environmental Assessment
Act, S.C. 1992, c. 37 .
Aboriginal law — Treaty — Modern treaty —
Interpretation.
Constitutional law — Aboriginal peoples — Treaty —
Whether James Bay and Northern Québec Agreement qualifies as a treaty under
s. 35 of Constitution Act, 1982 .
The Cree and Inuit communities signed the James Bay
and Northern Québec Agreement with the governments of Quebec and Canada in
1975. The Agreement established a governance scheme and created a framework
that would govern many aspects of life in the territory, including the
Aboriginal economic and social development and the preservation of the natural
environment. Under s. 22, the Agreement set out detailed and
comprehensive procedures for environmental impact assessments. Whether a
provincial or federal assessment will be conducted under the Agreement depends
on the constitutional jurisdiction within which the project itself falls. In
particular, s. 22.6.7 provides that “a project shall not be submitted to
more than one (1) impact assessment and review procedure unless such project
falls within the jurisdictions of both Québec and Canada”. If the exception
applies, two assessments will be required, but these assessments may be
combined with the “mutual agreement” of the parties. Section 2.5 of the
Agreement also provides that the Agreement is paramount over all other laws of
general application that are inconsistent with it.
A company intends to open and operate a mine in the
James Bay area of Quebec in the Agreement “Category III” lands, an area where
the Agreement recognizes Quebec’s right to regulate natural resource
development subject to the environmental protection provisions of s. 22.
In accordance with the Agreement’s procedures, the proponent of the project
submitted to the administrator responsible for “matters respecting provincial
jurisdiction” information concerning its proposed development. The provincial
Administrator transmitted this information to the Evaluating Committee, which
made a recommendation about the extent of impact assessment and review and
whether or not a preliminary and/or a final impact statement should be done.
Subsequently, the provincial Administrator alone decided the scope of the
assessment and gave appropriate directions to the proponent. On receipt of the
provincial Administrator’s instructions, the proponent supplied information
about the potential environmental and social impacts, which acknowledged a
significant impact on fish habitat. This was transmitted by the provincial
Administrator to the provincial Review Committee and was then to be transmitted
to the Cree Regional Authority for their representations.
Meanwhile, federal officials who were not involved in
the review process under the Agreement, concluded that the project’s impact on
fisheries — a matter within exclusive federal jurisdiction under s. 91(12)
of the Constitution Act, 1867 — engaged s. 35(2) of the Fisheries
Act and required a comprehensive study pursuant to the regulations made
under the Canadian Environmental Assessment Act (“CEAA ”). The
federal officials informed the Cree that the study would be conducted by a
review panel under the CEAA and not through the federal assessment
procedure provided for in s. 22 of the Agreement. While the provincial
review process of the project was still pending, the Cree commenced an action
for declaratory relief in the Quebec Superior Court, which declared that only
the provincial environmental assessment was applicable to the project pursuant
to the Agreement. The Court of Appeal set aside that decision. The court concluded
that the CEAA , in conjunction with the federal Fisheries Act ,
validly triggered a federal environmental assessment under the CEAA but
that there were practical and operational inconsistencies between the CEAA
review procedure and the one set out in the Agreement. Since the Agreement was
paramount, the court held that the CEAA review procedure was
inapplicable, but substituted the federal review procedure in the Agreement for
the one in the CEAA . The court also concluded that the project is
subject as well to the provincial review procedure under s. 22 of the
Agreement.
Held (LeBel, Deschamps,
Abella and Charron JJ. dissenting): The appeal should be dismissed but
the order of the Court of Appeal varied to provide that if the mine project is
approved pursuant to the Agreement, the proponent may not proceed with the work
without an authorization under s. 35(2) of the Fisheries Act , and
that the issuance of any such authorization is to comply with the CEAA
in accordance with its procedures, as well as the Crown’s duty to consult with
the Cree in relation to matters that may adversely affect their rights under
the Agreement.
Per McLachlin C.J.
and Binnie, Fish, Rothstein and Cromwell JJ.: The Agreement is a treaty
covered by s. 35(1) of the Constitution Act, 1982 . The text of
modern comprehensive treaties is meticulously negotiated by well‑resourced
parties and close attention should be paid to its terms. This case therefore
should be decided on the basis of the terms the parties actually negotiated and
agreed to as set out in the text of the Agreement rather than on general
observations and ideas which are unsupported by the text.
A mining project within the territory covered by the
Agreement that results in the harmful alteration, disruption or destruction of
fish habitat is not exempted from any independent scrutiny by the federal
Fisheries Minister by virtue of the Agreement. While there is no doubt that
this project, considered in isolation, falls within provincial jurisdiction, a
mining project anywhere in Canada that puts at risk fish habitat cannot proceed
without a permit from the federal Fisheries Minister, which he or she cannot
issue except after compliance with the CEAA .
On the view advanced by the appellant Attorney General
of Quebec, the provincially appointed Administrator under the Treaty could base
a final decision upon an abbreviated fisheries study that is simply
unacceptable to the federal Fisheries Minister. Alternatively, the Quebec
Cabinet could for its own reasons override the fisheries concerns altogether
and approve the mining project over the objection of the Administrator it has
appointed, or lighten the conditions designed to mitigate the adverse effects
of the project on the fisheries. In any such circumstances, on his view, the
federal Fisheries Minister would be powerless to withhold the permit. Such a
view is not consistent with the terms of the Agreement entered into by the
parties.
The reference in s. 22.6.7 of the Agreement to
only one impact assessment and review procedure merely regulates the internal
review processes of the Agreement leading up to the decision of the
Administrator or (on application by the mine proponent) the provincial Cabinet.
The recommendations forwarded to the relevant Administrator will come from
either the provincial committee or the federal panel but (in the absence of
governmental agreement) not both, unless the project itself falls within both
jurisdictions. The relevant Administrator will then (at least in the first
instance) make an approval decision. While there is to be only one “impact
review” of the mine project under the Agreement, the agreement of the parties
to avoid duplication internal to the Agreement does not eliminate the post‑approval
permit requirement contemplated by the Agreement itself if imposed externally
by a law of general application, such as the CEAA or the Fisheries
Act . Under s. 22.2.3 of the Agreement, all federal laws of general
application respecting environmental protections apply insofar as they are not
inconsistent with the Agreement. The CEAA is a federal law of general
application respecting the environment and there is no inconsistency between
the CEAA and the Agreement. Section 22.7.1 provides that once the
proposed development is approved under the Agreement, the proponent “shall
before proceeding with the work obtai[n] . . . the necessary
authorization or permits from responsible Government Departments and Services”.
If the argument of the Attorney General of Quebec were correct, s. 22.7.1
would be worded to place the obligation on the responsible Government
Department and Services to issue automatically the necessary authorization or
permit, not to put the obligation on the proponent to obtain the necessary
authorization or permit. Since nothing in the Agreement relieves the proponent
from compliance with the ordinary procedures governing the issuance of the
necessary authorization or permits referred to, it follows that once the
project is approved by the provincial Administrator (or the provincial Cabinet
overruling the Administrator’s disapproval), the proponent would have to make
an application for the s. 35(2) fisheries permit to the federal Minister
of Fisheries. As a matter of federal law, a CEAA assessment is
obligatory prior to the grant of a s. 35(2) permit. The federal laws, the
provincial laws and the Agreement fit comfortably together, and each should be
allowed to operate within its assigned field of jurisdiction. A refusal by the
federal Fisheries Minister to issue the necessary fisheries permit pursuant to
s. 35(2) of the Fisheries Act without compliance with the CEAA
would neither be in breach of the Agreement nor be unconstitutional even if the
project had been approved in accordance with the Agreement.
The Court of Appeal erred in substituting the
Agreement procedure for the CEAA procedure. Although the Agreement
guarantees the Cree particular rights to participate in the assessment process,
s. 22.7.5 expressly permits a federal impact assessment review procedure
where required by federal law or regulation. Since the Agreement specifically
provides for processes outside those established by the Agreement, it cannot be
inconsistent with the Agreement to require the proponent to follow them. In
this case, the CEAA procedure governs and it must be applied by the
federal government in a way that fully respects the Crown’s duty to consult the
Cree on matters affecting their rights pursuant to the Agreement in accordance
with the principles established in this Court’s jurisprudence. In many cases,
the Agreement procedures would provide sufficient information for federal
fisheries purposes, and the CEAA allows the responsible federal
authority to collaborate with another jurisdiction in order to promote
uniformity and harmonization in the assessment of environmental effects at all
levels of government. The participatory rights of the Cree on matters that may
adversely affect their rights pursuant to the Agreement are not at risk. The
issue is whether, in relation to a mine which is expected to pollute fish
habitat, the fisheries interest is ultimately the responsibility of the federal
Fisheries Minister or provincial treaty bodies and (if its assistance is
invoked by the mine proponent) the Quebec Cabinet. Common sense as well as
legal requirements suggest that the CEAA assessment will be structured
to accommodate the special context of a project proposal in the territory
covered by the Agreement, including the participation of the Cree.
The federal Minister is not bound to issue a
s. 35(2) fisheries permit following the approval of a mining project by
the provincial Administrator or the Quebec Cabinet. The requirement for the
provincial bodies to have regard to the native fisheries in reaching a
conclusion on the merits of the project for the purposes of the Agreement does
not constitute the provincial Administrator or Quebec Cabinet delegates of the
federal Minister or relieve the federal Minister of the responsibility to
comply with federal rules and responsibilities in relation to fish habitat.
Per LeBel, Deschamps,
Abella and Charron JJ. (dissenting): The Agreement, which is both an
Aboriginal rights agreement and an intergovernmental agreement, establishes a
comprehensive and elaborate regime for the administration of the James Bay
territory. It settles and determines not only the rights and obligations as
between the provincial and federal Crowns, on the one hand, and the Aboriginal
peoples living in the territory, on the other, but also the obligations, in
relation to the territory, of the federal and provincial governments as between
themselves. This Agreement, which was clearly intended to have the force of
law, has supra‑legislative status. It came into force and bound the
parties only after both provincial and federal legislation approving and giving
it effect was in force, and includes a clause which clearly indicates that, in
the event of a conflict, the Agreement is to be paramount over other federal
and provincial laws of general application. Both provincial and federal
authorizing legislation confirm the Agreement’s paramountcy. The Agreement has
also constitutional status as it qualifies as a modern treaty for the purposes
of s. 35(3) of the Constitution Act, 1982 . It creates mutually
binding obligations and establishes a comprehensive legal framework, setting
out the parties’ respective responsibilities where services and rights to land
are concerned and organizing their relationships for the future. Furthermore,
it is clear from the legislative record that the parties intended to resolve
all outstanding issues between them and settle their respective rights and
obligations. When interpreting a modern treaty, a court should strive for an
interpretation that is reasonable, yet consistent with the parties’ intentions
and the overall context, including the legal context, of the negotiations. Any
interpretation should presume good faith on the part of all parties and be
consistent with the honour of the Crown. Any ambiguity that arises should be
resolved with these factors in mind.
As is clear from an overview of the environmental
assessment scheme contemplated by s. 22 of the Agreement, the nature of
that project, not its impact, determines which assessment should be conducted
and, as a general rule, a development project will be subject to only one
environmental assessment process. In this case, the project is subject only to
the provincial environmental assessment set out in the Agreement. The nature
of the project — the development of a mine — falls under the exclusive
jurisdiction of the province over either local works and undertakings, property
and civil rights in the province, or non‑renewable natural resources in
the province, and the project’s impact on fish habitat — a matter of federal
jurisdiction — does not bring it within the exception in s. 22.6.7 so as
to override the general rule of only one assessment. Nothing in the language
of s. 22 supports the conclusion that a project’s impact can trigger a
second environmental review process where the project itself falls within the
jurisdiction of one government and it has effects which fall within that of the
other government. If a project’s impact could trigger a separate environmental
review process, the consequence would be to turn the exception into the rule.
Such a conclusion would directly contradict the clear intention of the parties
who were extremely careful to distinguish between projects within federal
jurisdiction and those within provincial jurisdiction. Furthermore, s. 22
explicitly addresses the role and participatory rights of the Cree in the
environmental assessment process. They have both a substantive and a
procedural role at each and every stage of that process. The federal process
under the CEAA , which does not provide for either substantive or
procedural participation by the Cree, is inconsistent with the provisions of
the Agreement and cannot apply.
An additional federal assessment of the project is not
required by s. 22.7.5 of the Agreement, which provides that nothing in
s. 22 “shall be construed as imposing an impact assessment review
procedure by the Federal Government unless required by Federal law or
regulation”. That sentence does not impose any obligations on the federal
government other than those ordinarily required by general federal law or
regulation. In view of the parties’ express intention that the Agreement
constitute a comprehensive governance scheme for the entire territory, that it
provides for only one environmental assessment as the general rule and that it
be paramount over all other laws of general application which are inconsistent
with it, and of the fact that no other government assessment process existed at
the time and that no parallel process was provided for in the Agreement itself,
s. 22.7.5 cannot be interpreted as triggering a separate federal
environmental assessment of the project under the CEAA . To agree that
the CEAA should prevail over the specific provisions of the Agreement
would be to subvert the constitutional structure the parties to the Agreement
intended to establish. Furthermore, s. 22.7.5 is a transitional
provision. It was included in the Agreement in order to address the
application of the law during the period between the signing of the Agreement
and its coming into force, and govern environmental matters until the coming
into force of the authorizing legislation.
The CEAA was enacted after the Agreement had
been signed and implemented by statute. It is clear from the Agreement and its
authorizing legislation that neither party can unilaterally modify its terms.
In light of the constitutional normative hierarchy, the CEAA cannot
prevail to impose a parallel process in addition to the ones provided for in
the Agreement. Any other interpretation would mean that the federal government
can unilaterally alter what was intended to be a comprehensive, multilateral
scheme. The federal government is therefore prohibited from effectively and
unilaterally modifying the procedure established by the Agreement, or
derogating from the rights provided for in the Agreement, by purporting to
attach conditions based on external legislation of general application. The
practical effect of this interpretation is that, if the Fisheries Minister determines
that a permit must be issued under the Fisheries Act , the Minister must
issue one on the basis of the environmental processes established by the
Agreement and cannot insist that an additional environmental process be
undertaken pursuant to the CEAA . The environmental review process under
the Agreement is paramount.
Cases Cited
By Binnie J.
Referred to: R.
v. Badger, [1996] 1 S.C.R. 771; Eastmain Band v. Canada (Federal
Administrator), [1993] 1 F.C. 501; MiningWatch Canada v. Canada
(Fisheries and Oceans), 2010 SCC 2, [2010] 1 S.C.R. 6; Haida Nation v.
British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511; Taku
River Tlingit First Nation v. British Columbia (Project Assessment Director),
2004 SCC 74, [2004] 3 S.C.R. 550; Mikisew Cree First Nation v. Canada
(Minister of Canadian Heritage), 2005 SCC 69, [2005] 3 S.C.R. 388.
By LeBel and Deschamps JJ. (dissenting)
Eastmain Band v. Canada (Federal Administrator), [1993] 1 F.C. 501; Friends of the Oldman River Society v.
Canada (Minister of Transport), [1992] 1 S.C.R. 3; R. v. Marshall,
[1999] 3 S.C.R. 456; Cree School Board v. Canada (Attorney General),
[2002] 1 C.N.L.R. 112; Canadian Western Bank v. Alberta, 2007 SCC 22,
[2007] 2 S.C.R. 3; Husky Oil Operations Ltd. v. Minister of National Revenue,
[1995] 3 S.C.R. 453; Reference re Employment Insurance Act (Can.),
ss. 22 and 23, 2005 SCC 56, [2005] 2 S.C.R. 669; Fédération des
producteurs de volailles du Québec v. Pelland, 2005 SCC 20, [2005] 1 S.C.R.
292; R. v. Sioui, [1990] 1 S.C.R. 1025; Simon v. The Queen,
[1985] 2 S.C.R. 387; Mikisew Cree First Nation v. Canada (Minister of
Canadian Heritage), 2005 SCC 69, [2005] 3 S.C.R. 388; Ermineskin Indian
Band and Nation v. Canada, 2009 SCC 9, [2009] 1 S.C.R. 222; R. v.
Marshall, 2005 SCC 43, [2005] 2 S.C.R. 220; Calder v. Attorney‑General
of British Columbia, [1973] S.C.R. 313; R. v. Badger, [1996] 1
S.C.R. 771; R. v. Sundown, [1999] 1 S.C.R. 393; R. v. Howard,
[1994] 2 S.C.R. 299; Haida Nation v. British Columbia (Minister of Forests),
2004 SCC 73, [2004] 3 S.C.R. 511; R. v. Crown Zellerbach Canada Ltd.,
[1988] 1 S.C.R. 401; R. v. Hydro‑Québec, [1997] 3 S.C.R. 213.
Statutes and Regulations Cited
Act approving the Agreement concerning
James Bay and Northern Québec, R.S.Q., c. C‑67,
ss. 2(1), (6)(a), 6.
Canadian Environmental
Assessment Act, S.C. 1992, c. 37, ss. 5 ,
12(5) (c), 14 , 16 , 16.1 , 40 to 45 .
Comprehensive Study List
Regulations, SOR/94‑638, s. 3, Sch.,
s. 16 (a).
Constitution Act, 1867, ss. 91 “preamble”, (12), (27), 92(5), (10), (13), (16), 92A.
Constitution Act, 1982, s. 35 .
Fisheries Act, R.S.C. 1985, c. F‑14, ss. 31 , 34(1) , 35(1) , (2) .
Interpretation Act, R.S.C. 1985, c. I‑21, s. 13 .
James Bay and Northern Quebec
Native Claims Settlement Act, S.C. 1976‑77,
c. 32 , Preamble, ss. 3(1), (3), 8.
Law List Regulations, SOR/94‑636, Sch. I, item 6(e).
Treaty
James Bay and Northern Québec
Agreement, ss. 2.5, 2.7, 2.9.7, 2.15, 16.0.2,
22, 23.
Authors Cited
Bankes, Nigel. “Co‑operative
Federalism: Third Parties and Intergovernmental Agreements and Arrangements in
Canada and Australia” (1991), 29 Alta. L. Rev. 792.
Côté, Pierre‑André, avec la
collaboration de Stéphane Beaulac et Mathieu Devinat. Interprétation des
lois, 4e éd. Montréal: Thémis, 2009.
Gourdeau, Éric. “Genesis of the
James Bay and Northern Québec Agreement”, in Alain‑G. Gagnon and Guy
Rocher, eds., Reflections on the James Bay and Northern Québec Agreement.
Montréal: Québec Amérique, 2002.
Grammond, Sébastien. Aménager
la coexistence: Les peuples autochtones et le droit canadien.
Cowansville, Qué.: Yvon Blais, 2003.
Grammond, Sébastien. “Les effets
juridiques de la Convention de la Baie James au regard du droit interne
canadien et québécois” (1992), 37 McGill L.J. 761.
Kennett, Steven A. “Hard Law,
Soft Law and Diplomacy: The Emerging Paradigm for Intergovernmental
Cooperation in Environmental Assessment” (1993), 31 Alta. L. Rev. 644.
Poirier, Johanne. “Les ententes
intergouvernementales et la gouvernance fédérale: aux confins du droit et du
non‑droit”, in Jean‑François Gaudreault‑DesBiens and Fabien
Gélinas, eds., The States and Moods of Federalism: Governance, Identity and
Methodology. Cowansville, Qué.: Yvon Blais, 2005, 441.
Quebec. Secrétariat aux affaires
autochtones. James Bay and Northern Québec Agreement and Complementary
Agreements. Sainte‑Foy: The Secretariat, 1998.
Rotman, Leonard I. “Taking
Aim at the Canons of Treaty Interpretation in Canadian Aboriginal Rights
Jurisprudence” (1997), 46 U.N.B.L.J. 11.
Sanders, Douglas. “‘We Intend to
Live Here Forever’: A Primer on the Nisga’a Treaty” (1999‑2000),
33 U.B.C.L. Rev. 103.
Sullivan, Ruth. Sullivan on
the Construction of Statutes, 5th ed. Markham, Ont.: LexisNexis, 2008.
APPEAL from a judgment of the Quebec Court of Appeal
(Pelletier, Rochon and Hilton JJ.A.), 2008 QCCA 741, [2008] R.J.Q. 944,
[2009] 1 C.N.L.R. 169, 35 C.E.L.R. (3d) 161, SOQUIJ AZ‑50487232, [2008]
J.Q. No. 3142 (QL), 2008 CarswellQue 8289, setting aside a decision of
Bénard J., 2006 QCCS 1832, [2006] R.J.Q. 1113, [2007] 1 C.N.L.R. 256,
SOQUIJ AZ‑50365314, [2006] J.Q. No. 3112 (QL), 2006 CarswellQue
3042. Appeal dismissed, LeBel, Deschamps, Abella and Charron JJ.
dissenting.
Francis Demers, Samuel
Chayer and Hugues Melançon, for the appellant.
Robert Mainville, Henry S.
Brown, Q.C., and Jean‑Sébastien Clément, for the
respondents Grand Chief Dr. Ted Moses, the Grand Council of the Crees (Eeyou
Istchee) and the Cree Regional Authority.
René LeBlanc, Bernard
Letarte and Virginie Cantave, for the respondents the Attorney
General of Canada, the Honourable David Anderson, in his capacity as Minister
of Environment, and the Canadian Environmental Assessment Agency.
Yvan Biron, for
the respondent Lac Doré Mining Inc.
Written submissions only by P. Mitch McAdam
and Chris Hambleton, for the intervener the Attorney General for
Saskatchewan.
Bryan P. Schwartz
and Jack R. London, Q.C., for the intervener the Assembly of
First Nations.
The judgment of McLachlin C.J. and Binnie, Fish,
Rothstein and Cromwell JJ. was delivered by
Binnie J. —
I. Introduction
[1]
The question raised by this appeal is whether a mining project within
the territory covered by the James Bay and Northern Québec Agreement (“James
Bay Treaty” or “Treaty”) that “results in the harmful alteration, disruption or
destruction of fish habitat” (Fisheries Act, R.S.C. 1985, c. F-14, s.
35(1) ) is nevertheless exempted by virtue of the Treaty from any independent
scrutiny by the federal Fisheries Minister before issuing the federal fisheries
permit. All parties to this appeal agree the mine will require the permit
before commencing operations. If the permit is not obtained, or if the permit
conditions are not complied with, the mine operator would face civil and
criminal consequences.
[2]
The Attorney General of Quebec contends that the federal Minister will
have no choice but to issue the permit once the mine is approved by a
provincially appointed Treaty Administrator or the Quebec Cabinet. He contends
that despite the anticipated impact of the mine’s tailing ponds and other
pollutants on fish and fish habitat, and despite fisheries being a matter
within exclusive federal jurisdiction under s. 91(12) of the Constitution
Act, 1867 , the James Bay Treaty should be interpreted to exclude what would
elsewhere be a compulsory assessment of the project’s impact under the Canadian
Environmental Assessment Act, S.C. 1992, c. 37 (“CEAA ”), and/or
under federal fisheries policy.
[3]
My colleagues LeBel and Deschamps JJ. agree with that position. They
rely, in particular, on a term of the Treaty that provides that “a project
shall not be submitted to more than one (1) impact assessment and review
procedure unless such project falls within the jurisdictions of both Québec and
Canada” (s. 22.6.7). They then interpret the Treaty to exclude fisheries’ “impacts”
from the determination of whether the mine is to be considered “exclusively”
federal or provincial. In the result, on this view, the provincially appointed
Administrator under the Treaty could base a final decision upon an abbreviated
fisheries study that is simply unacceptable to the federal Fisheries Minister.
Alternatively, the Quebec Cabinet could for its own reasons override the
fisheries concerns altogether and approve the mining project over the objection
of the Administrator it has appointed, or lighten the conditions designed to
mitigate the adverse effects of the project on the fisheries. In any such
circumstances, on this view, the federal Fisheries Minister would be powerless
to withhold the permit. I do not agree that the terms of the Treaty support
such an anomalous result.
[4]
My colleagues go further and accuse the federal government of
“unilaterally reneg[ing] on its own solemn [treaty] promises” (para. 58). This
is a very serious allegation and, I believe, highlights the importance of
paying attention to the actual terms of the treaty to determine what the
parties (including the federal government) agreed to, and whether the federal
government has (as alleged) gone back on its word and, as my colleagues see it,
violated “the honour of the Crown” (para. 58). With respect, I find no support
whatsoever for this harsh condemnation in the body of the Treaty, or in the
circumstances that gave rise to this dispute.
[5]
My colleagues express concern about the “First Nations’ participatory
rights” (para. 58), but the Cree First Nation — certainly a profoundly
important party to the Treaty — considers that it is the Quebec government
position, endorsed by my colleagues, that is not only “legally incorrect” but
“makes no practical sense”. In a factum filed jointly on behalf of Grand Chief
Dr. Ted Moses, Grand Council of the Crees (Eeyou Istchee) and Cree Regional
Authority (the “Cree respondents”), they write:
In essence, the Attorney-General of Québec argues
that federal authorities responsible for the implementation and enforcement of
the Fisheries Act, R.S.C. 1985, c. F-14 , are required to rely solely on
a provincial review (in which they do not participate) to base their decisions
under the Fisheries Act in regard to the Vanadium project. In addition
to being legally incorrect, this approach makes no practical sense. [para. 6]
The Cree
objection was essentially endorsed by the Quebec Court of Appeal. While, as
will be seen, I do not entirely accept the procedural element of the Cree
argument, I agree with their conclusion that on a proper construction of s.
22.7.5 of the Treaty, “a federal assessment in this case is indeed ‘required by
Federal law or regulation’” (Cree Factum, at para. 80). Furthermore, as I
interpret the Treaty, the participatory rights of the Cree are fully protected
(contrary to what is said by my colleagues, at para. 58), as will be discussed.
[6]
What all of this means, I believe, is that it is necessary to approach
this case on the basis of the terms the parties actually negotiated and agreed
to as set out in the text of their agreement rather than on general
observations and ideas which, in my respectful view, are unsupported by the
text. Applying this approach, I would dismiss the appeal, albeit for reasons
that differ somewhat from those of the Quebec Court of Appeal (2008 QCCA 741,
[2009] 1 C.N.L.R. 169).
A. Overview
[7]
In R. v. Badger, [1996] 1 S.C.R. 771, Cory J. pointed out that
Aboriginal “[t]reaties are analogous to contracts, albeit of a very solemn and
special, public nature” (para. 76). At issue in that case was an 1899 treaty.
The contract analogy is even more apt in relation to a modern comprehensive
treaty whose terms (unlike in 1899) are not constituted by an exchange of
verbal promises reduced to writing in a language many of the Aboriginal
signatories did not understand (paras. 52-53). The text of modern
comprehensive treaties is meticulously negotiated by well-resourced parties.
As my colleagues note, “all parties to the Agreement were represented by
counsel, and the result of the negotiations was set out in detail in a 450-page
legal document” (para. 118). 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.
[8]
I do not agree with the attribution by the Attorney General of Quebec
of “trump” status to the reference in s. 22.6.7 to only “one (1) impact
assessment and review procedure”. This provision merely regulates the internal
treaty review processes. It does not refer to requirements external to
the Treaty. Indeed, s. 22.7.1 specifically preserves the external requirement
imposed on the vanadium mine promoter, triggered by final approval of the
project under the Treaty, to obtain “the necessary authorization or permits
from responsible Government Departments and Services”, as follows:
22.7.1 If the proposed development is approved in
accordance with the provisions of this Section, the proponent shall before
proceeding with the work obtai[n] where applicable the necessary authorization
or permits from responsible Government Departments and Services. The Cree
Regional Authority shall be informed of the decision of the Administrator.
[Emphasis added.]
If the
argument of the Attorney General of Quebec were correct, s. 22.7.1 would be
worded to place the obligation on the responsible Government Department and
Services to issue automatically the necessary authorization or permit,
not to put the obligation on the proponent to obtain the necessary
authorization or permit.
[9]
What, then, is the role and function of s. 22.6.7 relied upon by the
Attorney General of Quebec whose approach in this respect is adopted by my
colleagues? It provides:
22.6.7 The Federal Government, the Provincial
Government and the Cree Regional Authority may by mutual agreement combine the
two (2) impact review bodies provided for in this Section and in particular
paragraphs 22.6.1 and 22.6.4 provided that such combination shall be without
prejudice to the rights and guarantees in favour of the Crees established by
and in accordance with this Section.
Notwithstanding the above, a project shall not be
submitted to more than one (1) impact assessment and review procedure unless
such project falls within the jurisdictions of both Québec and Canada or unless
such project is located in part in the Territory and in part elsewhere where an
impact review process is required.
My colleagues
lay stress on the second paragraph (“shall not be submitted to more than one
(1) impact assessment and review procedure”), but clearly the second paragraph
must be read with the first paragraph. The two paragraphs read together are an
elaboration of the internal treaty processes leading up to the decision
of the Administrator. The rule against duplication simply provides that only
one impact assessment is to be conducted within the pre-approval treaty
process for the benefit of the Administrator. The recommendations forwarded to
the relevant Administrator will come from either the provincial
Committee or the federal Panel but (in the absence of governmental
agreement) not both, unless the project itself falls within both jurisdictions.
[10] I
agree with my colleagues that there is to be only one “impact review” of the
mine project under the James Bay Treaty. The recommendations of that
review process, as stated, will provide input to the provincial Administrator.
The provincial Administrator (or the Quebec Cabinet) will then make an approval
decision. However, the agreement of the parties to avoid duplication internal
to the Treaty does not eliminate the post-approval permit requirement
contemplated by the Treaty if imposed externally by a law of general
application, such as the CEAA or the Fisheries Act , whose
operation is preserved by the Treaty itself in s. 22.7.1 .
[11] To
this group of provisions the parties added a further stipulation which
contemplated the possibility of an external “impact assessment review procedure
by the Federal Government” as follows:
22.7.5 Nothing in the present Section shall be
construed as imposing an impact assessment review procedure by the Federal
Government unless required by Federal law or regulation. However, this
shall not operate to preclude Federal requirement for an additional Federal
impact review process as a condition of Federal funding of any development
project. [Emphasis added.]
The parties to
the Treaty plainly agreed that the Treaty provisions dealing with the
environment do not themselves require an independent impact assessment review
by the federal government (i.e. the federal government itself as distinguished
from the Treaty review bodies on which the federal government may or may not be
represented). However, this provision is expressly made subject to such an
external requirement being imposed by “Federal law or regulation” (i.e. not the
Treaty). Far from excluding a separate federal obligation external to the
Treaty, the Treaty thus contemplates the obligation of compliance with federal
law whether in existence at the time of the negotiations (e.g. s. 31 of the Fisheries
Act as it then was) or impact assessments subsequently imposed by federal
law (e.g. the CEAA ). This is the position of the Cree respondents and I
agree with it.
[12] My
colleagues LeBel and Deschamps JJ. take a different view. They state that s.
22.7.5 must be understood as merely a “transitional” provision pending
enactment of implementing legislation (para. 133). I can find no support for
this idea in the text of the Treaty or its context. It is true that s. 22.7.5
is found at the end of Section 22 in a group of sections headed (appropriately
enough) “Final Provisions”. The same group includes the provision for a
Cabinet override of an Administrator’s decision not to authorize a proposed
development (s. 22.7.2), a provision which is clearly permanent, not
“transitional”. Where transitional arrangements are contemplated (as in s.
22.7.7), the text refers in explicit language to “interim measures”. There is
no such qualification in s. 22.7.5. If we are to proceed, as I do, on the
basis that these provisions were drafted by skilled individuals to reflect the
precise agreement reached by the Cree with the federal and provincial
governments, we have no mandate to rewrite them. The Court ought to do the
parties the courtesy of respecting the rights and obligations in the terms they
agreed to.
[13] My
colleagues refer to the Treaty as a manifestation of cooperative federalism,
but with respect, as they interpret it, the Treaty turns out to be a vehicle
for provincial paramountcy. My view, on the contrary, is that a refusal by the
federal Fisheries Minister to issue the necessary fisheries permit to alter,
disrupt or destroy fish habitat pursuant to s. 35(2) of the federal Fisheries
Act without compliance with the CEAA would neither be in breach of
the Treaty nor be unconstitutional (as argued by the Attorney General of Quebec
— see transcript, at pp. 2‑3 and 5‑9, and para. 84 of the
Appellant’s Factum). The federal laws, the provincial laws and the James Bay
Treaty fit comfortably together, and each should be allowed to operate within
its assigned field of jurisdiction.
B. The
Treaty Addressed a Long-Standing Aboriginal Grievance
[14] The
James Bay Treaty was an epic achievement in the ongoing effort to reconcile the
rights and interests of Aboriginal peoples and those of non-Aboriginal peoples
in Northern Quebec. Concluded in 1975 between the Grand Council of the Crees
(of Quebec), the Northern Québec Inuit Association, the Governments of Canada
and Quebec, and a number of Quebec Crown corporations, the Treaty was designed
to fulfill obligations assumed by Quebec towards Aboriginal peoples at the time
of the transfer of approximately 410,000 square miles of land and lakes from
Canada’s northern territories to Quebec in 1898 and 1912.
[15] There
is no doubt that when the First Ministers’ Conference on Aboriginal
Constitutional Affairs agreed in 1983 to amend s. 35 of the Constitution
Act, 1982 to provide in subsection (3) that “[f]or greater certainty, in
subsection (1) ‘treaty rights’ includes rights that now exist by way of land
claims agreements or may be so acquired”, their deliberations included the
James Bay Treaty concluded but a few years earlier. The Cree participated in
the relevant sessions, as did the federal and Quebec First Ministers. Many
observers at the time considered the amendment to be superfluous. Hence the
phrase “[f]or greater certainty”. The James Bay Treaty is clearly covered by
s. 35(1) of the Constitution Act, 1982 .
[16] The
Treaty is not intended to operate as a land freeze. It contemplates “[t]he
right to develop in the Territory” (s. 22.2.2) and preserves the “rights and
interests of non-Native people, whatever they may be”, but such development is
to be regulated by planning procedures that recognize “[t]he protection of the
hunting, fishing and trapping rights of Native people in the Territory” and the
need to minimize the “negative environmental and social impacts of development
on Native people and on Native communities” (s. 22.2.4).
[17] It
was of great importance to have Cree and Inuit participation in the
environmental impact assessment of projects within their respective
territories, although their formal participation in the development of Category
III lands (as here) was to be only as members of consultative and recommending
bodies. In a project involving Category III lands, these Treaty bodies include
the James Bay Advisory Committee on the Environment, which is described in the
Treaty as “the preferential and official forum for responsible governments in
the Territory concerning their involvement in the formulation of laws and
regulations relating to the environmental and social protection regime” (s.
22.3.24); and the Evaluating Committee, which recommends “the extent of impact
assessment and review” of a proposed development (s. 22.5.14) as well as the
Environmental and Social Impact Review Committee for projects
“involving” provincial jurisdiction (s. 22.6.1) and the Environmental and
Social Impact Review Panel for projects “involving” federal jurisdiction
(s. 22.6.4). In none of these committees or panels do the Cree nominees have a
majority (s. 22.6.2 and s. 22.6.5). In any event, these bodies do not make
development decisions. Their recommendations are not binding on the relevant
decision makers.
C. The Ultimate Treaty Decision Maker on This
Project Is the Quebec Cabinet
[18] The
treaty decision-making power in relation to development on the lands in
question rests not with these committees or panels but with the provincial
Administrator (in “matters” respecting provincial jurisdiction) and a federal
Administrator (in “matters” involving federal jurisdiction) or a Cree
Administrator in matters involving Category I lands (s. 22.1.1). (As stated,
the proposed vanadium mine is located on Category III lands.)
[19] The
Treaty contains a political override. An appeal lies from the decision of the
Administrator to the Lieutenant-Governor in Council of Quebec (the Quebec
Cabinet) or the federal Governor in Council (the federal Cabinet) on projects
within their respective jurisdictions (s. 22.7.2). Cabinet may “authorize a
development which has not been authorized [by the Administrator] or alter the
terms and conditions established by the Administrator pursuant to Sub-Section
22.6” (s. 22.7.2). Cree participation is important and essential, but, at the
end of the day, the Quebec Cabinet will have the final word on Category III
lands if its intervention is sought by a mine promoter dissatisfied with the
provincial Administrator’s decision.
II. Facts
[20] The
salient background is set out in the opinion of my colleagues LeBel and
Deschamps JJ. It is appropriate, however, to elaborate on some of the concerns
related to the fisheries and fish habitat.
[21] The
assessment procedure under the Treaty leading up to the Administrator’s
decision consists of three stages. At the first stage of the present
application, the proponent of the mining project submitted to the Administrator
responsible for “matters respecting provincial jurisdiction” some preliminary
information concerning its proposed development (s. 22.5.11). (I will refer to
this official throughout as the “provincial Administrator” as it is a
provincial appointment.) All parties accept that for treaty purposes the
vanadium mine is a provincial project, relying on Eastmain Band v. Canada
(Federal Administrator), [1993] 1 F.C. 501 (C.A.), at p. 527:
. . . once the project falls under provincial jurisdiction (as opposed
to under federal jurisdiction) it is the provincial side of the procedure which
is set in motion, regardless of whether the project has an environmental
impact in an area under federal jurisdiction, and that the federal
Administrator, the federal Review Panel and the Governor in Council then have
no active role to play. [Emphasis added.]
Eastmain
Band addressed internal treaty procedures. It said nothing about the
requirement imposed on a mine operator to obtain required permits and
authorizations. As mentioned, the parties to the Treaty segregated out the
fisheries licence issue and left it to be determined not under the
Treaty procedures but according to federal laws of general application.
A. The Review Procedure
[22] The
provincial Administrator transmitted the proponent’s information about its
proposal for a mine to the Evaluating Committee (s. 22.5.12), which was limited
to making a recommendation about the extent of impact assessment and review and
whether or not a preliminary and/or a final impact statement should be done (s.
22.5.14). Once provided with the Evaluating Committee’s recommendations, the
provincial Administrator alone decided the scope of the assessment (s.
22.5.4) and gave appropriate directions to the proponent (ss. 22.5.4, 22.5.15
and 22.5.16) in that regard.
[23] While
Schedule 3 to Section 22 contemplates a broad ranging assessment that would
normally include fish habitat, where relevant, the Administrator is not bound
by Schedule 3, which itself provides in its introduction that:
In the exercise of his functions, and duties pursuant to this Section
of the Agreement, the Administrator shall give due consideration to the
provisions of this Schedule but shall not be restricted or bound by or to
the said provisions. [Emphasis added.]
It is to be expected that all participants in the approval process will
be conscientious and carry out their work with due diligence, but the fact
remains that the Treaty is structured to give the Administrator(s) and
Cabinet(s) a lot of leeway in establishing the scope of the impact assessment
and in reflecting (or not) its recommendations in their final decision to
approve or not to approve a development project such as a vanadium mine.
[24] On
receipt of the provincial Administrator’s instructions, the proponent supplied
information about the potential environmental and social impacts “especially
those on the Cree populations potentially affected” (Section 22, Sch. 3). This
material (“the impact statement”) was transmitted by the provincial
Administrator to the provincial Review Committee (s. 22.6.10). The material
was also to be transmitted to the Cree Regional Authority (s. 22.6.11) for
their “representations” (s. 22.6.12).
B. Fisheries Concerns
[25] The
impact study prepared in this case by the mining proponent was presented on
June 26, 2003. It acknowledged a significant impact on fish habitat, including
the risks associated with the tailing ponds, and the fact that many water
bodies, including lakes, would be lost during the building of the complex. In
its summary of the impact study, the proponent itself mentioned the following:
[translation] As for the
federal framework, it requires, first, compliance with the Canadian
Environmental Assessment Act (CEAA ) to the extent that the project has an
impact on fish habitat . . . .
.
. .
Some small bodies of water that are undergoing eutrophication will be
lost as a result of the disposal of mining waste. A number of watercourses
will be spanned by the access road and the electrical power line, while others
will be cut off by or diverted around the plant and its waste disposal sites.
The main collectors (Villefagnan, Boisvert) have minimum annual flows up to 40
times greater than the tributaries that will be affected by the project.
.
. .
The study area includes a walleye spawning ground in the Armitage River
and several brook trout spawning grounds at the outfall of Audet Lake and in
Wynne Creek. The Boisvert River has a habitat suitable for the reproduction of
walleye. Chibougamau Lake is of great importance to the region’s residents
and tourists, primarily for walleye fishing in the summer. [Emphasis
added; Exhibit P-11, Appellant’s Record, vol. III, at pp. 76 and 81-82.]
(See Exhibit P-11, Appellant’s Record, vols. III to IX, for the
detailed Impact Study.)
The proponent,
however, did not provide very much information about the scale and nature of
the precise impact of the project on fish habitat; nor did it disclose in any
detail how it proposed to mitigate the environmental damage.
[26] On
the basis of the impact study and other information before it, the Review
Committee was given the task of recommending to the provincial Administrator
whether or not the development should proceed and, if so, under what terms and
conditions (s. 22.6.15).
[27] In
this case, the Review Committee found the fisheries information deficient, as
noted in its report dated March 2004, as follows:
[translation] To
compensate for the loss of fish habitat that would result from the mining
project, the proponent recommends alterations to a waterfall located 300 metres
upstream of Villefagnan Creek in order to provide access to the walleye
spawning grounds.
However, the information in the impact assessment statement does not
make it possible to quantify the loss of fish habitat production capacity
associated with the project, although it is agreed that the project will result
in a net loss of breeding, nursery and rearing areas, overwintering habitat,
etc., for several species of fish in various types of environments.
The proponent must therefore present its fish habitat compensation
exercise by specifying the various types, functions and surface areas involved
together with the multispecies potential of the environments affected by the
project. [Exhibit P‑13‑1, at p. 15, Appellant’s Record, vol. IX,
at p. 60]
[28] The
Review Committee notably expressed concern with respect to fish habitat, water
quality loss, loss of numerous lakes, use of explosives, pollution through
discharge of effluent into water, extraction and use of fresh water, pollution
of waters frequented by fish through tailing ponds, remedial works including
construction of a fish ladder or waterfall, loss of fish production, and
degradation of fish habitat generally (Exhibit P‑13‑1, at pp. 14‑16,
Appellant’s Record, vol. IX, at pp. 59‑61).
C. Federal Commentary on the Fisheries
Concerns
[29] Although
there are no federal appointees on the provincial Review Committee, the
Canadian Environmental Assessment Agency did contact the provincial
Administrator by letter dated October 28, 2003 to try to coordinate the Treaty
process and the CEAA review (Exhibit P‑25, Appellant’s Record,
vol. IX, at pp. 153‑54). The CEAA expressly contemplates dealing
with bodies designated by land claims agreements (see ss. 12(5) (c) and
40(1) (d)). It therefore seems that the federal government was willing
to harmonize both assessment processes as it is authorized (but not required)
to do under ss. 40 to 45 of the CEAA . Such harmonization would be an
exercise in cooperative federalism. For present purposes, it is sufficient to
note that no joint body was established, by the federal Minister or delegation
made to the Treaty body, as must be done in writing under s. 43(2) of the CEAA .
[30] Fisheries
and Oceans Canada commented in its October 2003 statement on the proponent’s
submission:
[translation] As a
result, the content of the impact assessment statement (IAS) submitted by
McKenzie Bay Resources Ltd. (MBRL) does not meet the requirements of DFO [the
Department of Fisheries and Oceans] and is insufficient for the FHMB [Fish
Habitat Management Branch] to conduct a complete analysis of the project’s
potential impact on fish and fish habitat for the purposes of the Fisheries Act
(FA ). Much information remains to be clarified or provided. [Exhibit P-24,
Appellant’s Record, vol. IX, at p. 121]
.
. .
On page 176 of Volume 2 of the IAS, the promoter proposes alterations
to a waterfall 300 m upstream from its mouth in order to provide access to
potential spawning grounds for walleye in the downstream portion of Villefagnan
Creek. This measure is proposed to compensate for the losses of fish habitat
that would result from the mining project.
At this time, the information in the IAS is insufficient for us to
quantify the loss of fish habitat production capacity. It is therefore
currently impossible to determine whether the proposed compensation project
would make a result of no net loss possible.
. . . the mining project will likely result in the loss of breeding,
feeding, nursery and rearing areas, overwintering habitat, etc., for several
species of fish in various types of environments (lenitic, lotic, grass
bed, etc.). However, only walleye spawning grounds were considered for the
purposes of compensation. [Emphasis added; Exhibit P‑24, Appellant’s
Record, vol. IX, at p. 129.]
[31] Environment
Canada commented in November 2003:
[translation] First of
all, it is our opinion that there are significant gaps in the project
description and in the description of the receiving environment. The
information in the report does not provide a sufficient scientific basis for
assessing the project’s environmental impact, particularly where the aspects
under our jurisdiction are concerned. [Exhibit P-24, Appellant’s Record, vol.
IX, at p. 135]
[32] Natural
Resources Canada also commented in November 2003:
[translation] Natural
Resources Canada is of the opinion that there are significant gaps in the
impact assessment statement and that we need more information to assess the
project’s environmental impact, especially where the aspects under our
jurisdiction are concerned. [Exhibit P‑24, Appellant’s Record, vol. IX,
at p. 141]
[33] Thus,
all parties involved in the present matter acknowledged the harmful impact of
the mining project on fish and fish habitat, and both the Review Committee and
the governmental authorities at the federal as well as the provincial level
identified a serious lack of pertinent information.
[34] The
Treaty provides that the Review Committee report is to be forwarded to the
Administrator who makes the decision whether or not to approve the project and
on what conditions. In the present case, the litigation was commenced before
the provincial process had proceeded to completion.
III. Relevant Statutory Enactments
[35] See
Appendix.
IV. Analysis
[36] There
is no doubt that a vanadium mining project, considered in isolation, falls
within provincial jurisdiction under s. 92A of the Constitution Act, 1867 over
natural resources. There is also no doubt that ordinarily a mining project
anywhere in Canada that puts at risk fish habitat could not proceed without a
permit from the federal Fisheries Minister, which he or she could not issue
except after compliance with the CEAA . The mining of non‑renewable
mineral resources aspect falls within provincial jurisdiction, but the
fisheries aspect is federal.
[37] Parliament,
of course, has bound the federal government to comply with the Treaty
provisions in all respects: James Bay and Northern Quebec Native Claims
Settlement Act, S.C. 1976-77, c. 32, s. 8 . The Attorney General of Quebec
argues that the Treaty review process leading up to a decision by the
Administrator is exhaustive of environmental assessment requirements (unless
overturned by order of the Cabinet) but, in my view, the effect of the Treaty
provisions is as follows. Under s. 22.2.3 of the Treaty, all federal laws of
general application respecting environmental protections apply insofar as they
are not inconsistent with the Treaty (a similar regime applies to education (s.
16.0.2 )). The CEAA is a federal law of general application respecting
the environment. The question, then, is whether there is any inconsistency
between the CEAA and the Treaty. I believe not. As stated, s. 22.7.1
of the Treaty provides that once the proposed development is approved by the
Administrator following consultation and receipt of “recommendations”, the mine
promoter is required notwithstanding such approval to obtain “the
necessary authorization or permits from responsible Government Departments and
Services”. Nothing in the Treaty relieves the proponent from compliance with
the ordinary procedures governing the issuance of the necessary authorization
or permits. If the makers of the Treaty had intended the Administrator’s
approval (or Cabinet’s substituted approval) to be the end of the regulatory
requirements, they would have said so, but they did not. They said the
contrary.
A. Application of the Canadian
Environmental Assessment Act
[38] What
must the proponent of the mine do in order to obtain the s. 35(2) fisheries
permit as required (“shall” obtain) by s. 22.7.1 of the Treaty? Once the
project is approved by the provincial Administrator (or the provincial Cabinet
overruling the Administrator’s disapproval), the proponent would have to make
an application for the s. 35(2) fisheries permit to the federal Minister of
Fisheries. As a matter of law, a CEAA assessment is obligatory prior to
the grant of a s. 35(2) permit.
[39] Section
5(1) (d) of the CEAA provides that an environmental assessment
must be made “before a federal authority” acting “under a provision prescribed
[by regulation] pursuant to paragraph 59 (f) [of the CEAA ], issues
a permit or licence, grants an approval or takes any other action for the
purpose of enabling the project to be carried out in whole or in part”. The
Governor General in Council has enacted the Law List Regulations,
SOR/94-636, which set out the government functions that require an
environmental assessment pursuant to s. 5(1) (d). Item 6(e) of
Sch. I on the list is “Fisheries Act . . . subsection 35(2) ”.
[40] The
vanadium mine at issue here — a metal mine with an ore production capacity of
greater than 3,000 tons per day — is covered by s. 3 of the federal Comprehensive
Study List Regulations, SOR/94-638, and s. 16(a) of the Schedule.
As such, the assessment under the CEAA must comply with the
“comprehensive study” provisions, meaning that it requires public consultation
and participation, among other procedures set out in the CEAA itself : MiningWatch
Canada v. Canada (Fisheries and Oceans), 2010 SCC 2, [2010] 1 S.C.R. 6.
B. There Is No Conflict Between the Treaty
and the CEAA
[41] The
Treaty specifically provides for processes outside those established by the
Treaty and it cannot, therefore, be inconsistent with the Treaty to require the
mine promoter to follow them.
[42] The
Quebec Court of Appeal found that the CEAA procedures conflict to
some extent with the Treaty procedures. For example, the CEAA does not
specifically contemplate Cree participation, although it does provide that
“[c]ommunity knowledge and aboriginal traditional knowledge may be considered
in conducting an environmental assessment” (CEAA, s. 16.1 ). The
argument is that the Treaty guarantees the Cree particular rights to
participate in the assessment process (ss. 22.5.6 , 22.6.2 and 22.6.5 ) and that
the CEAA process denies them that constitutionally protected right. The
CEAA process (it is contended) is to that extent inconsistent with the
Treaty.
[43] However,
s. 22.7.5 not only singles out the federal government for special attention in
matters of impact assessment, but specifically preserves the application of its
federal “impact assessment review procedure”. I reproduce s. 22.7.5 for
convenience:
22.7.5 Nothing in the present Section shall be
construed as imposing an impact assessment review procedure by the Federal
Government unless required by Federal law or regulation. However, this
shall not operate to preclude Federal requirement for an additional Federal
impact review process as a condition of Federal funding of any development
project. [Emphasis added.]
I noted
earlier that the Cree respondents themselves emphasized in their factum the
words “unless required by Federal law or regulation” as preserving the
application of the CEAA to the proposed vanadium mine.
[44] Section
22.7.5 cannot, in its terms, refer to the Environmental and Social Impact
Review Panel established under s. 22.6.4 to review “development projects in the
Territory involving Federal jurisdiction” because the words “Federal
Government” are not apt to describe a Treaty body to which the federal
government may nominate some of the members. Moreover, the reference in s.
22.7.5 expressly permits a federal impact assessment review procedure where
required by federal law or regulation. In this respect, the Quebec Court of
Appeal erred, in my view, in substituting the Treaty procedure for the CEAA
procedure. The application of a federal government procedure is
expressly preserved by the Treaty.
[45] Accordingly,
unlike the Quebec Court of Appeal, I do not believe the correct outcome here is
to substitute the Section 22 Treaty procedure in place of the statutory
procedure required by the CEAA . The CEAA procedure governs but,
of course, it must be applied by the federal government in a way that fully
respects the Crown’s duty to consult the Cree on matters affecting their James
Bay Treaty rights in accordance with the principles established in Haida
Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3
S.C.R. 511, at para. 32, Taku River Tlingit First Nation v. British Columbia
(Project Assessment Director), 2004 SCC 74, [2004] 3 S.C.R. 550, and in Mikisew
Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69,
[2005] 3 S.C.R. 388. I need say nothing further on this aspect of the case
because nothing in the evidence or argument suggests a federal reluctance to
consult fully with the Cree in the CEAA process.
[46] Nor
can it be said that the federal Fisheries Minister would not, in the ordinary
course, pay close attention to the work done by the Treaty bodies.
Undoubtedly, in many cases, the Treaty work would provide sufficient
information for federal fisheries purposes. Indeed, as Canada points out in
its factum, at para. 49, the CEAA allows the responsible federal
authority to collaborate with another [translation]
“jurisdiction”/“instance” and, at para. 50, that one of the objects of the CEAA
is to promote uniformity and harmonization in the assessment of environmental
effects at all levels of government.
[47] In
short, I believe the concern expressed by my colleagues (at para. 58) that
“[t]he results would be duplication, delays and additional costs for taxpayers
and interested parties, and a breach of the First Nations’ participatory
rights” is not well founded. The “First Nations’ participatory rights” on
matters that may adversely affect their Treaty rights are not at risk. The
issue is whether in relation to a vanadium mine, which is expected to pollute
fish habitat, the fisheries interest is ultimately the responsibility of the
federal Fisheries Minister or (if invoked) the Quebec Cabinet.
[48] Common
sense as well as legal requirements suggest that the CEAA assessment
will be structured to accommodate the special context of a project proposal in
the James Bay Treaty territory, including the participation of the Cree.
Reference has already been made to the possibility of a joint or substituted
panel under ss. 40 to 45 of the CEAA . Nevertheless, the legal question
before us is whether, absent such an arrangement, the federal Minister is bound
to issue a s. 35(2) fisheries permit following the approval of a mining project
by the Administrator (or the Quebec Cabinet) and, in my view, he is not so
bound.
C. The Autonomy of the Federal Minister of
Fisheries
[49] Section
35(1) of the Fisheries Act provides that “[n]o person shall carry on any
work or undertaking that results in the harmful alteration, disruption or
destruction of fish habitat.” As stated, s. 35(2) allows the Minister to set
conditions upon which a person can engage in conduct otherwise prohibited by s.
35(1) . Specifically, it provides that “[n]o person contravenes subsection (1)
by causing the alteration, disruption or destruction of fish habitat by any
means or under any conditions authorized by the Minister or under regulations
made by the Governor in Council under this Act.” In other words, s. 35(2)
allows the Minister to issue a permit to a person, like the proponent of the
vanadium mine, to engage in conduct harmful to fish habitat that would
otherwise contravene s. 35(1) and expose the mine operator to serious
consequences.
[50] Although
the requirement for authorization under s. 35(2) of the Fisheries Act
was disputed by the Attorney General of Quebec in the courts below (see Quebec
Court of Appeal decision, at para. 114), he now concedes that a federal
fisheries permit is required. (See transcript, at pp. 8‑9 and 11‑12.)
I agree that the federal permit is required once the Treaty approvals are
given. Having conceded the necessity of a federal fisheries permit, however,
the Attorney General of Quebec is unable to point to anything in the Treaty
that would relieve a mining promoter of compliance with the federal law
applicable to the issuance of such a permit, including in particular the CEAA .
[51] The
Treaty does not purport to dictate to the federal Minister how to go about
making his decision under s. 35(2) of the Fisheries Act . In particular,
it does not fetter the exercise of his or her evaluation of the fisheries
issues to the outcome of the provincial Treaty Administrator’s (or Quebec
Cabinet’s) assessment of the mine and its impact on fish habitat.
[52] The
autonomy of the federal Fisheries Minister is preserved even though Section 22
of the Treaty requires the provincial bodies to “consider” fisheries concerns.
The provincial bodies do not bear constitutional responsibility for the
fisheries. The Treaty requirement for them to have regard to the native
fisheries in reaching a conclusion on the merits of the vanadium mine for
treaty purposes does not constitute the provincial Administrator (or, if called
on, the Quebec Cabinet) delegates of the federal Minister or relieve the
federal Minister of the responsibility to comply with federal rules and
responsibilities in relation to fish habitat.
V. Conclusion
[53] In
my view, the vanadium mine cannot lawfully proceed without a fisheries permit.
The proponent is unable to obtain, and the federal Minister is unable to issue,
a s. 35(2) fisheries permit without compliance with the CEAA . The
contention of the Quebec Attorney General that the Treaty requires the federal
Minister to issue the s. 35(2) fisheries permit as a result of the province‑led
review panel regardless of the federal Minister’s independent assessment of
potential damage to fish habitat should be rejected.
[54] It
is only after final approval by the Treaty bodies that it can be said that “the
proposed development is approved in accordance with the provisions of this
Section”, which is the condition precedent to the proponent’s obligations under
s. 22.7.1 to “obtai[n] where applicable the necessary authorization or permits
from responsible Government Departments and Services”. There is thus no
conflict. The need for a post‑Treaty approval fisheries permit is
made mandatory by the Treaty itself (“shall” obtain). In the case of
fisheries, it is federal law, not the Treaty, that governs when such a permit
may be granted as well as its terms and conditions.
[55] I
agree with the observation expressed by my colleagues LeBel and Deschamps JJ.
that “[i]t would hardly be reasonable to believe that the parties intended that
one of them might sign the Agreement one day and withdraw its signature the
next day, week or year in respect of a key part of their contract” (para. 58).
This sentiment is true so far as it goes, but in my view, with respect, it has
no application to the dispute at issue in this appeal. I would dismiss the
appeal but vary the order of the Quebec Court of Appeal to provide that if the
vanadium mine project is approved pursuant to the Treaty, the proponent may not
proceed with the work without authorization under s. 35(2) of the Fisheries
Act , and that the issuance of any such authorization is to comply with the CEAA
in accordance with its procedures, as well as the Crown’s duty to consult with
the First Nations in relation to matters that may adversely affect their Treaty
rights.
[56] The
Attorney General of Quebec is to pay the Cree respondents and the Attorney
General of Canada respectively their costs in this Court. The costs of prior
proceedings are to remain as disposed of by the courts below.
The reasons of LeBel, Deschamps,
Abella and Charron JJ. were delivered by
LeBel and
Deschamps JJ. (dissenting) —
I. Introduction
[57] For
the first time since the groundbreaking James Bay and Northern Québec
Agreement (“Agreement”) was signed in 1975, this Court must interpret its
provisions. At issue are conflicting views about which, or how many, of three
possible environmental assessment processes should apply to a mining project in
the James Bay area of Quebec that is covered by this agreement between certain
First Nations, the governments of Quebec and Canada and several Crown
corporations. The parties disagree about whether the project should be
reviewed once, twice or three times, or possibly through a combination of
competing processes. We find that there is but one answer from both a legal
and a practical standpoint: on the facts of this case, only the provincial
process provided for in the Agreement applies. The Quebec Superior Court so
concluded, while the Court of Appeal disagreed.
[58] Our
colleague Binnie J. rejects this interpretation. He finds support in the
argument of the Cree that to interpret the Agreement as limiting the assessment
to the provincial process would be legally incorrect. However, far from
accepting the only interpretation the Cree consider legally correct, one that
would entitle them to participate in the assessment process (see para. 29 of
the factum of the Cree respondents), he proposes yet another interpretation,
which rests on s. 22.7.5 of the Agreement. According to this interpretation, a
federal environmental assessment based on a statute that was not in force at
the time of the Agreement is mandatory because of a proviso that the negotiated
process applies alone only if no other process is “required by Federal law or
regulation”. With respect, this provision is merely transitional. In any event,
we cannot accept these words as proof that the parties intended to allow the
federal government to unilaterally alter the terms of the Agreement. In so
interpreting them, Justice Binnie would add yet another level of assessment
without any evidence of a benefit for the public or of an improvement on any
aspect of the processes provided for in the Agreement, especially the
provincial process. The results would be duplication, delays and additional
costs for taxpayers and interested parties, and a breach of the First Nations’
participatory rights. The parties to the Agreement adopted a pioneering
approach in respect of environmental law. The Canadian Environmental
Assessment Act, S.C. 1992, c. 37 (“CEAA ”), did not exist at the
time. The parties surely did not intend that one of them would be able to
unilaterally change the terms of the Agreement with respect to a matter that
was one of their main concerns and had been the subject of difficult and
intensive negotiations. The Agreement contemplated the application of existing
laws of general application. It would hardly be reasonable to believe that the
parties intended that one of them might sign the Agreement one day and withdraw
its signature the next day, week or year in respect of a key part of their
contract. The long history of negotiations and of amendments to the Agreement
does not allow of such an interpretation. Our colleague would now condone a
decision by the federal government to unilaterally renege on its own solemn
promises. This is hardly what one would expect this Court to endorse in such
stark contradiction to the honour of the Crown.
[59] In
the reasons that follow, we will explore the background and judicial history of
this case. We will discuss important issues concerning the nature and
interpretation of the Agreement and of modern treaties between the Crown and
the First Nations of Canada more generally, and these issues will inform our
final disposition of this appeal.
II. Background
A. James Bay Agreement
[60] In
1971, the Quebec government announced plans to build an extensive
hydro-electric generation complex on the La Grande River in the James Bay
area. The project involved flooding vast expanses of land used by the Cree for
hunting and fishing in order to build reservoirs that would feed hydro-electric
turbines. The Cree responded by initiating litigation. In November 1973, the
Quebec Superior Court granted an interlocutory injunction that stopped all work
on the project on the basis that it had been undertaken without any
consultation about its environmental and social impact on Aboriginal
inhabitants. The Court of Appeal reversed that decision, and leave to appeal
to this Court was refused ([1975] 1 S.C.R. 48). While the litigation was under
way, the Cree and Inuit communities entered into negotiations with the
governments of Quebec and Canada that resulted in the signing of the Agreement
in November 1975.
[61] The
Agreement territory, which comprises more than 1,082,000 square kilometres
extending inland from the shores of James Bay, constitutes the northernmost
reaches of present‑day Quebec (the “Territory”). Its only permanent
inhabitants in 1975 were 7,000 Cree and 5,000 Inuit, who had occupied the land
“since time immemorial” (É. Gourdeau, “Genesis of the James Bay and Northern
Québec Agreement”, in A.‑G. Gagnon and G. Rocher, eds., Reflections
on the James Bay and Northern Québec Agreement (2002), at p. 17). The
Agreement was intended to settle all Aboriginal claims to the land, establish a
comprehensive and forward-looking governance regime, and provide a framework
for the exercise and performance of the respective rights and obligations of
the two First Nations and the two governments in the course of their ongoing
relationship. In many respects, the Agreement grants the First Nations parties
a form of self-government.
[62] For
this purpose, the Agreement established a far-reaching governance scheme under
which important powers are conferred on the Cree and Inuit. It created a
framework that would govern many aspects of life in the Territory, including
Aboriginal hunting and fishing, resource and hydro-electric development, the
administration of justice, school administration, Aboriginal economic and
social development, health and social services, local governance and — the
aspect that is in issue in this case — preservation of the natural
environment.
[63] The
environmental protection regime will be examined in greater detail below, but
it will be helpful here to mention a few of its most noteworthy features.
Sections 22 and 23 of the Agreement set out detailed and comprehensive
procedures for environmental impact assessments that, when drafted, were ahead
of their time. Indeed, they predated analogous environmental legislation that
has since been enacted by all the provinces and by the federal government. In
a sense, the Agreement foreshadowed the increased knowledge of and heightened
concern for environmental issues that have since developed throughout Canada.
Another significant feature of the Agreement is the explicit affirmation in s.
22.2.2 of its goal of striking a balance between two overarching objectives:
economic development and the protection of traditional Aboriginal uses of the
land. The resulting environmental impact assessment procedure, which involves
the First Nations and the governments of Quebec and Canada, rests on two key
principles: guaranteeing Aboriginal participation and consultation at all
stages of the assessment process, and avoiding duplication by providing for a
single environmental assessment process based on the nature of the project
involved and on whether it falls within provincial or federal constitutional
jurisdiction.
B. Vanadium Mine Project
[64] At
issue in this appeal is the future of a vanadium mining project (“Project”)
located at Lac Doré, near Chibougamau, within the James Bay Territory. Lac Doré
Mining Inc. (“proponent”) intended to open and exploit the mine. The Project is
to be situated in the Agreement Territory on “Category III” lands, with respect
to which the Agreement recognizes Quebec’s right to regulate natural resource
development subject to the environmental protection provisions of Section 22.
Vanadium is an element used in the production of steel alloys. The mine
contains reserves of 10 million tons, has an anticipated life of 40 years,
corresponds to 12 percent of worldwide vanadium consumption, and is the only
mine of its kind in North America.
[65] On
May 27, 1999, the proponent forwarded to the Quebec Minister of Environment a
Notice of Project in respect of the Project in accordance with the Agreement’s
procedures. In June 2003, the proponent submitted its impact statement to the
deputy minister, and the impact statement was then forwarded to the provincial
Review Committee.
[66] Meanwhile,
federal officials concluded that the Project’s impact on fisheries engaged s.
35(2) of the Fisheries Act, R.S.C. 1985, c. F-14 , and required a
comprehensive study pursuant to s. 16(a) of the Schedule of the
Comprehensive Study List Regulations, SOR/94-638, made under the CEAA .
In April 2004, federal officials informed the Cree that the study would be
conducted by a review panel under the CEAA and not through the federal
assessment procedure provided for in Section 22 of the Agreement.
[67] In
response, the Cree commenced an action for declaratory relief in the Quebec
Superior Court. The commencement of this litigation effectively interrupted the
environmental assessment process originally undertaken pursuant to the
Agreement.
III. Judicial History
A. Superior Court, 2006 QCCS 1832, [2007] 1
C.N.L.R. 256
[68] In
the Superior Court, the Cree sought a declaration (i) that the CEAA was
inapplicable in the Agreement Territory because it was inconsistent with the
Agreement, and (ii) that the federal and provincial environmental assessments
under the Agreement should be conducted instead in light of the nature and
impact of the Project. The Attorney General of Quebec (“AGQ”) agreed with the
Cree that the CEAA was inapplicable but argued that because the nature
of the Project related to a matter within provincial jurisdiction, only the
provincial assessment under the Agreement was applicable. The Attorney General
of Canada took a third position: (i) because of the licence requirement in the Fisheries
Act , the Project’s potential impact on fisheries validly triggered the
federal environmental assessment legislation, and (ii) because the nature of
the Project related to a matter within provincial jurisdiction, the provincial
environmental assessment procedure in the Agreement was also applicable. In
the Superior Court, the parties proceeded on the basis of an agreed statement
of facts that read as follows:
(1) that the Cree rights under the
Agreement “exist by way of land claims agreements” in the sense of s. 35(3) of
the Constitution Act, 1982 ;
(2) that the lands impacted by the
vanadium mine are used by the Cree for traditional activities;
(3) that mining projects are “Future
Developments Automatically Subject to Assessment” as provided by Sch. I of
Section 22 of the Agreement;
(4) that the provincial nature of the
project made it subject to provincial jurisdiction and a provincial
environmental assessment, though litigation was required to determine whether
its impact on federal jurisdiction might also make it subject to a federal
assessment.
[69] The
parties’ divergent positions gave rise to several issues: (i) whether the
environmental assessment procedures under the Agreement are consistent with the
procedures required by the CEAA ; (ii) the effect of any inconsistency
between the Agreement and the CEAA ; and (iii) whether the requirement to
proceed with a provincial or federal environmental assessment under the
Agreement was triggered solely by the nature of the Project, or by both its
nature and its impact.
[70] On
the first issue, Bénard J. undertook a detailed comparison of the environmental
assessment provisions of Section 22 of the Agreement and those of the CEAA .
She observed that Section 22 establishes a set of principles that inform the
conduct of the assessment. A salient feature of this regime is that it ensures
consultation with the Cree — about the specific impact of the use of the lands
on their lifestyle and traditional activities — in all environmental
assessments conducted on Category III lands. By contrast, the CEAA ’s
procedure contains no equivalent guiding principles or consultation rights for
the Cree and grants no rights to Aboriginal membership in review panels. Bénard
J. referred to nine different examples of inconsistency between the CEAA and
the Agreement (paras. 111-34), focusing most notably on the issue of Cree
participation. She held that the overall effect of proceeding with an
environmental assessment under the CEAA would be to dilute the role of
the Cree in the conduct of the assessment, contrary to the protections guaranteed
by the Agreement (para. 134).
[71] After
identifying the inconsistencies between the Agreement and the CEAA ,
Bénard J. turned to the second issue. She observed that the Agreement is a
tripartite pact between the governments of Canada and Quebec and the Cree, is
binding upon the two levels of government and imposes an obligation on them to
uphold Cree rights, including the right to a [translation]
“detailed and exhaustive” environmental review process (paras. 136 and
138). She added that the Agreement cannot be amended without the consent of
all parties (para. 138). Both the Agreement and the implementing
legislation provide that in the event of any inconsistencies between the
Agreement and provincial or federal law, the Agreement is paramount, which meant
that owing to the inconsistencies between the Agreement and the CEAA ,
the CEAA was inapplicable to the Project (paras. 147 and 177).
[72] This
led to the third issue: whether the Project was covered by the Agreement’s
provincial or federal assessment procedure. To resolve this issue, it was
necessary to decide whether the nature of the Project alone, or both its nature
and its impact, should be considered in determining which procedure or
procedures would apply. Bénard J. acknowledged the dictum of the
Federal Court of Appeal in Eastmain Band v. Canada (Federal
Administrator), [1993] 1 F.C. 501 (per Décary J.A.), that only the
nature of the project is relevant in determining which procedure to employ, but
she stopped short of explicitly endorsing it. Instead, she reached the same
result by interpreting the words of the Agreement, resting her conclusion on
the following propositions: First, the Agreement clearly distinguishes between
federal and provincial projects. Second, the intent of the Agreement is to
provide, as a general rule, for a single environmental assessment, subject to
only two narrow exceptions, neither of which was relevant on the facts of the
instant case. As a result, Bénard J. concluded that the position of the Cree
that both the nature and the impact of a project can trigger an assessment
would lead to a dual assessment in most cases, thereby turning the exception
into the rule. Bénard J. concluded that only the provincial process was
applicable in the case at bar.
B. Quebec Court of Appeal (Pelletier,
Rochon, and Hilton JJ.A.), 2008 QCCA 741, [2009] 1 C.N.L.R. 169
[73] The
Cree appealed the Superior Court’s judgment. The Quebec Court of Appeal ruled,
in a per curiam decision, on three issues: (i) whether there was a valid
CEAA trigger justifying a federal environmental assessment procedure;
(ii) whether there was any inconsistency between the CEAA ’s assessment
procedure and the procedures set out in the Agreement; and (iii) whether, under
the Agreement’s assessment procedures, two assessments — one provincial, the
other federal — can be conducted if the federal trigger is the CEAA and
not the Agreement.
[74] In
the court’s view, the first issue did not concern the constitutional validity
of the CEAA , as this Court had held it to be valid in Friends of the
Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3.
Rather, the question was whether, in light of the decision on jurisdiction in Oldman,
the CEAA was applicable in the instant case. Comparing the Guidelines
Order (the federal legislation at issue in Oldman) with the CEAA (more
recent legislation passed after Oldman), the Court of Appeal concluded that
the CEAA , in conjunction with s. 35 of the federal Fisheries Act ,
validly triggered a federal environmental assessment. As a result, before the
Minister of Fisheries and Oceans could authorize a work or undertaking, a valid
environmental assessment had to be conducted pursuant to s. 5(1) (d) of
the CEAA .
[75] The
AGQ had argued that the CEAA ’s review procedure exceeded the scope of
the federal jurisdiction over fisheries as delineated in Oldman, because
s. 16(2) of the CEAA authorized the Minister to review the purpose of
the Project, not merely its effects. Such a power extended beyond the limits of
the federal jurisdiction recognized in Oldman (para. 108). The
court rejected this argument, comparing s. 16(1) (e) of the CEAA
to s. 4(2) of the Guidelines Order upheld in Oldman and finding
that they were equivalent although the CEAA provision was [translation] “[w]ritten more
elaborately” (para. 111). Rejecting the AGQ’s constitutional and textual
arguments about the scope of the CEAA , the court concluded that there
was a valid external trigger for a federal assessment.
[76] The
second issue arose from the first: the finding of a valid external trigger for
the federal process led to an analysis of whether the CEAA ’s process was
consistent with Section 22 of the Agreement. In this inquiry, the
question was what principles should guide the court in interpreting a modern
Aboriginal treaty. After reviewing the principles of interpretation applicable
to treaties as summarized by this Court in R. v. Marshall, [1999] 3
S.C.R. 456 (“Marshall (1999)”), and the decisions of the courts of
appeal in Cree School Board v. Canada (Attorney General), [2002] 1
C.N.L.R. 112 (Que. C.A.), and Eastmain Band, the Court of Appeal
outlined a set of guiding principles for the interpretation of modern treaties.
First and foremost, the Agreement must be interpreted broadly and liberally, in
a manner consistent with the government’s fiduciary obligations to the Cree.
Nevertheless, the interpretation must reflect a reasonable analysis of the
parties’ intentions and interests, taking into account both the historical
context and the legal context of the Agreement. Finally, where two or more
interpretations are reasonably possible, the interpretation most consistent
with the interests of the Aboriginal signatories must prevail.
[77] The
Court of Appeal then proposed a method for applying these principles to conduct
a comparative analysis of the CEAA and the Agreement. To begin, an
inconsistency will be found only if there is an irreconcilable conflict that
prevents the Aboriginal signatories from exercising their rights under the
Agreement. An inconsistency may emerge, first, from a comparative analysis of
the provisions of the Agreement and those of the CEAA . However, beyond
this comparative exercise, there may also be a second level of inconsistency
resulting from the principles underlying the Agreement itself. This analysis is
based solely on the words of the Agreement.
[78] In
the first inquiry, the court found that while the [translation] “principles, purposes, and objectives of the two
texts are consistent” (para. 148), “[t]he irreconcilable conflict appears when
the review procedures at issue are examined to reveal a practical and
operational inconsistency” (para. 149). Briefly stated, the consultative and
participatory rights guaranteed to the Cree in the Agreement are not available
under the CEAA (paras. 154-60). As a result, the CEAA
procedure must be excluded on the Agreement Territory.
[79] The
second inquiry turned on a key principle found by the court to arise from the
Agreement: the prohibition against a dual federal/provincial assessment of the
same project (s. 22.6.7). Reading the Agreement as a whole, and noting in
particular the [translation]
“considerable care [the parties took] to distinguish the projects under federal
jurisdiction from those under provincial jurisdiction”, the court rejected the
argument of the Cree that the level of government designated to conduct an
environmental assessment should be determined by both the nature and the impact
of the project (para. 171). Instead, it endorsed the Superior Court’s
reasoning and refused to make the conduct of dual federal and provincial
assessments the rule rather than the exception. The determination of the level
of government that would conduct the assessment depended on the nature of the
project (paras. 176 and 178). A reading of the Agreement itself did not
justify triggering the federal assessment process in the case at bar.
[80] Having
found a valid external trigger for the CEAA in the Fisheries Act
but no valid trigger for the federal assessment process in the Agreement, the
court went on to consider whether the external trigger could justify a federal
environmental assessment in the Agreement Territory. Applying s. 22.2.3, the
court concluded that valid external provincial or federal environmental
legislation could, to the extent that it was not incompatible with the
Agreement, trigger an external environmental assessment under the procedure
provided for in the Agreement (para. 193). The combined effect of these
conclusions was that the CEAA assessment was valid owing to the external
trigger, but that because the Agreement was paramount, the CEAA assessment
process was inapplicable. To the extent of the inconsistency, the Agreement’s
federal assessment process prevailed.
IV. Analysis
[81] The
issue remains the same as in the courts below. Which environmental review
process applies to the Project: the provincial or the federal process under the
Agreement, both those processes, or the federal process under the CEAA ?
To resolve this issue, we must first discuss the nature, interpretation and
effect of the Agreement and situate it in its proper legal and constitutional
context.
A. The James Bay Agreement
(1) Nature
[82] The
Agreement is both an intergovernmental agreement and an Aboriginal rights agreement.
It is binding upon, and creates rights and obligations for, the federal and
provincial governments and the First Nations. It may be viewed as a model for
the many modern land treaties that have been signed since the 1982
constitutional amendments, which included the protection of what are now
referred to as “modern” treaty rights under s. 35(3) of the Constitution
Act, 1982 . However, the Agreement does not just settle and determine the
rights and obligations as between the provincial and federal Crowns, on the one
hand, and the Aboriginal peoples living in the Territory, on the other. It also
settles and determines the obligations, in relation to the Territory, of the
federal and provincial governments as between themselves. Both these points warrant
further discussion.
[83] The
full significance and effect of the Agreement as it relates to the government
and Aboriginal signatories will be discussed below. It will suffice for now to
note that all the parties saw the Agreement as a means of settling the rights
of the Cree and Inuit with respect to the Territory (speech to the National
Assembly by John Ciaccia, representative of then Premier Robert Bourassa,
reproduced in the James Bay and Northern Québec Agreement and
Complementary Agreements (1998)). The Aboriginal parties were to be given
the power of “self-administration” — what would today be referred to as
“self-government” — over all Category I lands within the Territory. The
Agreement also protected the right of the Aboriginal signatories to hunt, fish
and trap throughout the Territory. At the time, the Agreement was
groundbreaking in that one of its objectives was to establish and develop
procedures and mechanisms to enable Aboriginal communities to participate in
the management and development of the Territory’s lands and resources.
[84] However,
in addition to being an Aboriginal rights document under which the Cree are
given powers of self-government over large segments of the Territory, the
Agreement is an intergovernmental agreement between the federal government and
the province of Quebec. It is therefore yet another example of what this Court
has repeatedly called “co-operative federalism” (Canadian Western Bank v.
Alberta, 2007 SCC 22, [2007] 2 S.C.R. 3, at para. 24; Husky Oil
Operations Ltd. v. Minister of National Revenue, [1995] 3 S.C.R. 453, at
para. 162; see also Reference re Employment Insurance Act (Can.), ss. 22 and
23, 2005 SCC 56, [2005] 2 S.C.R. 669, at para. 10).
[85] Governance
through intergovernmental agreements has become increasingly commonplace in
Canada and is resorted to frequently by the federal government and the
provinces, and also by the provinces between themselves. As Professor Poirier
has noted, modern states continue to rely on these types of agreements as a
means of coordinating and managing government services:
[translation]
The functioning of federal systems is supported by a wide range of co‑operation
and information‑ and resource-sharing mechanisms. Defining what is to be
done by various levels of government appears to be essential to the effective
management of public business. . . .
.
. .
Intergovernmental agreements between components of
a federal state are one of the most formal and most widely used mechanisms of
federal governance.
(J. Poirier, “Les ententes intergouvernementales et la gouvernance
fédérale: aux confins du droit et du non-droit”, in J.-F. Gaudreault-DesBiens
and F. Gélinas, eds., The States and Moods of Federalism: Governance,
Identity and Methodology (2005), 441, at pp. 442-43)
The scope of
these agreements can be quite broad, covering the vast majority of areas of
public policy, including the protection of minority language rights, the financing
of government programs such as health care, and matters that engage a
federation’s international obligations (see Poirier, at p. 443). Often
essentially administrative in nature, such agreements set out who does what,
and who pays for it, within the Canadian federal structure. They can — directly
or indirectly — affect the constitutional division of legislative powers (see
Poirier, at pp. 446 and 448; see also S. A. Kennett, “Hard Law, Soft Law and
Diplomacy: The Emerging Paradigm for Intergovernmental Cooperation in
Environmental Assessment” (1993), 31 Alta. L. Rev. 644).
[86] Intergovernmental
agreements can range from rather simple declaratory statements to complex
regulatory mechanisms (see Fédération des producteurs de volailles du Québec
v. Pelland, 2005 SCC 20, [2005] 1 S.C.R. 292). However, not all will be
found to have the force and effect of positive law. In this sense, “a spectrum
exists between ‘political’ agreements and those having a ‘legal’ content”
(Kennett, at p. 655). According to the commentators, in the absence of
some form of statutory approval, an intergovernmental agreement will be binding
only on its signatories, and therefore will not create rights and obligations
for third parties (N. Bankes, “Co-operative Federalism: Third Parties and
Intergovernmental Agreements and Arrangements in Canada and Australia” (1991),
29 Alta. L. Rev. 792; Kennett, at p. 658). Nor would it appear that
statutory authorization alone will suffice. Rather, a provision indicating
that an agreement takes effect as if it were a statute will provide the
strongest indication that the agreement ought to be given the force of law
(Bankes, at p. 828). For example, Professor Bankes suggests that, in English,
language such as “as if enacted in this Act” will be required.
[87] The
legal status of the Agreement must be considered with this in mind. There is no
question that the Agreement establishes a comprehensive and elaborate regime
for the administration of the James Bay Territory. Of clear significance is the
provision that the Agreement would come into force only upon the coming into
force of both provincial and federal legislation approving and giving effect to
it and declaring it valid:
2.7 During the Transitional Period of two
(2) years referred to herein, Canada and Québec shall to the extent of their
respective obligations, take the measures necessary to put into force, with
effect from the date of execution of the Agreement, the Transitional Measures
referred to in the Agreement.
Except for such Transitional Measures, the
Agreement shall come into force and shall bind the Parties on the date when
both the federal and provincial laws respectively approving, giving effect to
and declaring valid the Agreement are in force.
Upon the coming into force of the said federal and
provincial legislation the Transitional Measures shall be replaced by all the
other provisions of this Agreement. All acts done by the Parties in virtue of
the said Transitional Measures shall then be deemed to have been ratified by all
the Parties hereto. [Emphasis added.]
It is
important to stress that the Agreement itself was not binding on the parties
until this authorizing legislation was in force.
[88]
In accordance with ss. 2.5 and 2.7 of the Agreement, Parliament enacted
the James Bay and Northern Quebec Native Claims Settlement Act, S.C.
1976‑77, c. 32 . In addition to a preamble in which the government’s
purpose in entering into the Agreement is stated, the Act contains, in s. 3(1) ,
the following statutory authorization: “The Agreement is hereby approved, given
effect and declared valid.” Likewise, the Quebec legislature enacted the Act
approving the Agreement concerning James Bay and Northern Québec, R.S.Q.,
c. C‑67. In approving the Agreement, the National Assembly used language
virtually identical to that of the federal legislation: “The Agreement is
hereby approved, given effect to and declared valid” (s. 2(1)). In further
support of the intention to give the Agreement the force of positive law, the
provincial legislation includes the delegation of a regulation‑making
power to the Quebec government so that it may “create the agencies provided for
in the Agreement necessary for the implementation thereof” (s. 2(6)(a)).
[89]
The Agreement also provides clear direction to the respective
legislative bodies on the content of the legislation contemplated in s. 2.7:
2.5 Canada and Québec shall recommend to the
Parliament of Canada and to the National Assembly of Québec respectively,
forthwith upon the execution of the Agreement, suitable legislation to approve,
to give effect to and to declare valid the Agreement and to protect, safeguard
and maintain the rights and obligations contained in the Agreement. Canada
and Québec undertake that the legislation which will be so recommended will not
impair the substance of the rights, undertakings and obligations provided for
in the Agreement. [Emphasis added.]
The Agreement
is clearly intended to have the force of law.
[90]
The Agreement also clearly indicates that, in the event of a conflict,
it is to be paramount over other federal and provincial laws of general
application:
2.5 . . .
Both the federal and provincial legislation
approving and giving effect to and declaring valid the Agreement, if adopted,
shall provide that, where there is an inconsistency or conflict between such
legislation and the provisions of any other federal or provincial law, as the
case may be, applicable to the Territory, the former legislation shall prevail
to the extent of such inconsistency or conflict. Canada and Québec
acknowledge that the rights and benefits of the Indians and Inuit of the
Territory shall be as set forth in the Agreement and agree to recommend that
the federal and provincial legislation approving, giving effect and declaring
valid the Agreement will provide for the repeal of Sub‑Sections c), d)
and e) of Section 2 of the federal Québec Boundaries Extension Act, 1912, and
of the same Sub‑Sections of Section 2 of the Schedule to the provincial
Québec boundaries extension act, 1912. [Emphasis added.]
[91]
Both pieces of authorizing legislation confirm the Agreement’s
paramountcy over all other general laws. Section 8 of the federal Act reads as
follows:
8. Where there is any inconsistency or
conflict between this Act and the provisions of any other law applying to the
Territory, this Act prevails to the extent of the inconsistency or conflict.
In the same
vein, s. 6 of the provincial legislation reads as follows:
6. In case of conflict or inconsistency, this Act shall prevail
over any other Act applicable to the territory described in the Agreement to
the extent necessary to resolve the conflict or inconsistency.
[92]
These provisions have never been repealed, and they continue to bind
both governments. The Agreement settles the parties’ mutual rights and
obligations, and is clearly binding on the parties in the same way as any
ordinary private law contract would be. However, the Agreement has the added
feature of statutory implementation through legislation enacted by both federal
and provincial legislative bodies, includes a paramountcy clause, and clearly
allows that there was an intention to elevate the Agreement to supra-legislative
status. Having demonstrated that the Agreement is binding law and that it is
paramount over conflicting laws of general application, we will now discuss its
constitutional status.
[93]
While the Agreement itself has been the subject of much litigation, the
courts that have considered it have thus far refrained from expressly
addressing its constitutional status. In Eastmain Band, Décary J.A.
expressed no opinion on this issue:
The appellant, Hydro‑Québec and the
Attorney General of Canada, assuming for the purposes of this case that the
Agreement is a “treaty”, strictly speaking, on which point I shall express no
opinion, argue that while the first element of this rule — liberal
construction — applies in the case of a modern treaty, the second element —
doubtful expressions should be construed in favour of the Indians — does not
apply. The point which they dispute, to borrow the expression used by counsel
for Hydro‑Québec, is that the Aboriginals have a constitutional right to
have any ambiguity resolved in their favour. [Emphasis added; p. 514.]
Rousseau‑Houle
J.A., writing for the majority in Cree School Board, also refrained from
considering the issue:
[translation]
Like Baudouin J.A., I believe that it is inappropriate to rule on whether
the Agreement should benefit from constitutional protection under section 35 of
the Constitution Act, 1982 , given the record as constituted by the
parties and the three actions brought before the Superior Court (Coon‑Come
v. Procureur général du Québec, No. 500‑02‑017984‑960;
Coon‑Come v. Hydro‑Québec, No. 500‑05‑004330‑906;
and Lord v. Procureur général du Québec, No. 500‑05‑043203‑981)
that bear directly on the characterization and validity of the Agreement.
.
. .
Although it is not necessary to examine whether
the rights granted in the Agreement should benefit from constitutional
protection, the Agreement is nonetheless a solemn accord reached with the
Crees and the Inuit, which was ratified and implemented through legislative
channels. [Emphasis added; paras. 91 and 96.]
[94]
Nor was the constitutional status of the Agreement a live issue in the
courts below. In the Superior Court, the parties admitted that the Agreement
was a treaty for the purposes of s. 35(3) :
[translation]
2. Admissions by the parties
This Agreement is a claims agreement within the
meaning of subsection 35(3) of the Constitution Act, 1982 , and the
Crees’ rights are treaty rights recognized and affirmed by section 35 of the
Constitution Act. [para. 22]
Because of
this admission, the constitutionality of the Agreement was not in issue on
appeal (paras. 14 and 126). It therefore falls to this Court to determine
whether the Agreement qualifies as a modern treaty for the purposes of s.
35(3) . In light of the parties’ arguments, we must address this issue squarely.
[95]
The Agreement, which was signed in 1975, of course predates s. 35 of the
Constitution Act, 1982 , as does the federal and provincial legislation
approving it. Quite understandably, in this context, the Agreement is silent
with respect to the constitutional status of the rights it recognizes. The
Agreement must therefore be analysed from the perspective of a constitutional
framework that did not exist at the time it was negotiated and executed.
[96]
Section 35(1) of the Constitution Act, 1982 recognizes and
affirms the existing treaty rights of Aboriginal peoples:
35. (1) The existing aboriginal and treaty
rights of the aboriginal peoples of Canada are hereby recognized and affirmed.
Because the
Agreement is a modern agreement, s. 35(3) is also relevant:
35. . . .
(3) For greater certainty, in subsection (1)
“treaty rights” includes rights that now exist by way of land claims agreements
or may be so acquired.
[97]
In R. v. Sioui, [1990] 1 S.C.R. 1025, Lamer J. (as he then was)
set out the constituent elements of a treaty for the purposes of s. 35 . Relying
on this Court’s earlier decision in Simon v. The Queen, [1985] 2 S.C.R.
387, he concluded that “it is clear that what characterizes a treaty is the
intention to create obligations, the presence of mutually binding obligations
and a certain measure of solemnity” (p. 1044; see also S. Grammond, “Les effets
juridiques de la Convention de la Baie James au regard du droit interne
canadien et québécois” (1991-1992), 37 McGill L.J. 761, at p. 779).
[98]
The most significant feature, for the purposes of our analysis,
is the creation of mutually binding obligations. The Agreement is far more
comprehensive in scope than either the treaties of peace and friendship or the
numbered treaties considered by this Court in a number of cases in which the
analytical framework for interpreting the historical treaties between certain
First Nations, Canada and Great Britain was developed (see e.g. Mikisew Cree
First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69, [2005]
3 S.C.R. 388; Ermineskin Indian Band and Nation v. Canada, 2009 SCC 9,
[2009] 1 S.C.R. 222; Marshall (1999); R. v. Marshall, 2005 SCC
43, [2005] 2 S.C.R. 220; Simon). As
Professor Grammond suggests, modern treaties tend to address far more than just
the ceding of territory:
[translation] Modern treaties therefore
cover a much wider range of subjects than the territorial treaties of the 19th century. In modern treaties, the Crown and
Aboriginal peoples have tried to specifically define their rights and
obligations in many areas, such as land use, hunting and fishing, sharing of
royalties for the use of natural resources, environmental assessment, economic
development, preferential hiring, awarding of contracts, adaptation of public
services, etc. The most recent agreements also include provisions on self‑government,
dispute arbitration and co‑ordination with the claims of neighbouring
Aboriginal peoples.
(S. Grammond, Aménager la coexistence: Les peuples autochtones et le
droit canadien (2003), at p. 255)
The Agreement fits this description well. It
establishes a comprehensive legal framework, setting out the parties’ respective responsibilities where services and
rights to land are concerned and organizing their relationships for the future.
[99]
It is also important to note that the Agreement was the first one
entered into by the federal government and an Aboriginal group following this
Court’s decision in Calder v. Attorney-General of British Columbia,
[1973] S.C.R. 313. That decision is credited with reorienting the federal
government’s policy on Aboriginal land claims and, more specifically, with producing
a “shift toward negotiation as the preferred policy for resolving land claims
in northern Quebec, Yukon, Northwest Territories, and British Columbia” (D.
Sanders, “‘We Intend to Live Here Forever’: A Primer on the Nisga’a Treaty”
(1999-2000), 33 U.B.C. L. Rev. 103, at p. 108; Cree School Board,
at para. 81). In 1973, under the then Minister of Indian Affairs, Jean
Chrétien, the federal Department of Indian Affairs created the Office of Native
Claims to deal with both specific and comprehensive land claims. The Agreement
was the first one entered into under this new policy.
[100]
Furthermore, it is clear from the legislative record that the parties
intended to resolve all outstanding issues between them and settle their
respective rights and obligations. As we mentioned above, effect was given to
the Agreement by enacting legislation at both the federal and the provincial
levels. A review of both those statutes further supports this reading of the
parties’ intentions.
[101]
The wording of a statute’s preamble often provides insight into the
statute’s purpose or goal that can be helpful to a court interpreting it.
According to s. 13 of the federal Interpretation Act, R.S.C. 1985, c.
I-21 , “[t]he preamble of an enactment shall be read as a part of the enactment
intended to assist in explaining its purport and object.” As Professor Sullivan
notes, “[t]he most direct and authoritative evidence of legislative purpose is
found in formal purpose statements appearing in the body of legislation” (Sullivan
on the Construction of Statutes (5th ed. 2008), at p. 270). Legislative
preambles in particular may “contain direct descriptions of purpose or
descriptions of the circumstances giving rise to the enactment — the mischief
the legislature intended to cure, the social problems it wished to address”
(Sullivan, at p. 271). Although a legislative preamble will never be
determinative of the issue of legislative intent since the statute must always
be interpreted holistically, it can nevertheless assist in the interpretation
of the legislature’s intention (P.‑A. Côté with the collaboration of
S. Beaulac and M. Devinat, Interprétation des lois (4th ed.
2009), at pp. 72-75).
[102]
The preamble to the federal legislation further highlights the intention
to create mutually binding obligations between the parties:
Whereas the
Government of Canada and the Government of Quebec have entered into an
Agreement with the Crees and the Inuit inhabiting the Territory within the
purview of the 1898 acts respecting the Northwestern, Northern and Northeastern
Boundaries of the Province of Quebec and the 1912 Quebec Boundaries extension
acts, and with the Inuit of Port Burwell;
And whereas the
Government of Canada and the Government of Quebec have assumed certain
obligations under the Agreement in favour of the said Crees and Inuit;
And whereas the
Agreement provides, inter alia, for the grant to or the setting aside
for Crees and Inuit of certain lands in the Territory, the right of the Crees
and Inuit to hunt, fish and trap in accordance with the regime established
therein, the establishment in the Territory of regional and local governments
to ensure the full and active participation of the Crees and Inuit in the
administration of the Territory, measures to safeguard and protect their
culture and to ensure their involvement in the promotion and development of
their culture, the establishment of laws, regulations and procedures to manage and
protect the environment in the Territory, remedial and other measures
respecting hydro‑electric development in the Territory, the creation and
continuance of institutions and programs to promote the economic and social
development of the Crees and Inuit and to encourage their full participation in
society, an income support program for Cree and Inuit hunters, fishermen and
trappers and the payment to the Crees and Inuit of certain monetary
compensation;
And whereas the
Agreement further provides in consideration of the rights and benefits set
forth therein for the surrender by the said Crees, the Inuit of Quebec and the
Inuit of Port Burwell of all their native claims, rights, titles and interests,
whatever they may be, in and to the land in the Territory and in Quebec;
And whereas Parliament
and the Government of Canada recognize and affirm a special responsibility for
the said Crees and Inuit;
And whereas it
is expedient that Parliament approve, give effect to and declare valid the Agreement;
Now,
therefore, Her Majesty, by and with the advice and consent of the Senate
and House of Commons of Canada, enacts as follows . . . .
[103]
Important concessions were made by the Cree and Inuit parties in
entering into the Agreement. Before the negotiations started, the parties had
been involved in protracted litigation. The Aboriginal signatories therefore,
in addition to agreeing that the document was to be exhaustive with regard to
their rights, agreed that all court actions were to be discontinued during the
transitional period:
2.9.7 The Parties agree to further suspend
during the Transitional Period the legal proceedings relating to the James Bay
project or to the claims, rights, titles and interests in land of the James Bay
Crees and the Inuit of Québec, including the effects of any judgment, rendered
or to be rendered, resulting therefrom, and not to institute any further
proceedings relating to such matters, during the Transitional Period,
including all matters contemplated by the proceedings in the case of Kanatewat
et al. vs. the James Bay Development Corporation et al. pending
before the Supreme Court of Canada and related proceedings pending before the
Superior Court of Québec. The Parties further agree not to institute legal
proceedings relating to Transitional Measures referred to herein during the
Transitional Period. [Emphasis added.]
[104]
The Agreement also extinguished all outstanding and future Aboriginal
claims, which is confirmed by s. 3(3) of the James Bay and Northern Quebec
Native Claims Settlement Act :
3. . . .
(3) All native claims, rights, title and interests,
whatever they may be, in and to the Territory, of all Indians and all Inuit,
wherever they may be, are hereby extinguished, but nothing in this Act
prejudices the rights of such persons as Canadian citizens and they shall
continue to be entitled to all of the rights and benefits of all other citizens
as well as to those resulting from the Indian Act , where applicable, and
from other legislation applicable to them from time to time.
In short, the
Aboriginal signatories agreed to abandon all current and future claims against
the Crown and also agreed that their rights were to be determined exclusively
and comprehensively by reference to the Agreement.
[105]
The amendment procedure provided for in the Agreement attests to its
solemnity. Although the Agreement can be amended, the prior consent of all the
parties is required:
2.15 The Agreement may be, from time to time,
amended or modified in the manner provided in the Agreement, or in the absence
of such provision, with the consent of all the Parties. Whenever for the
purposes of, or pursuant to, the Agreement, unless otherwise expressly
specified, consent is required in order to amend or modify any of the terms and
conditions of the Agreement, such consent may be given on behalf of the Native
people by the interested Native parties.
The Agreement
has in fact been amended several times. In this sense, it is similar to a
binding contract entered into by parties who are all ably represented by counsel.
This is a strong indication of the solemnity of the Agreement. So, too, is the
requirement of statutory authorization, from two separate levels of government,
before the Agreement will have binding effect on the parties themselves.
[106]
We therefore conclude that the Agreement has constitutional status under
s. 35(3) of the Constitution Act, 1982 . It satisfies the criteria
established by this Court for the recognition of a treaty under s. 35(3)
and should therefore be recognized to be one.
(2) Principles of Interpretation
[107]
Since we have determined that the Agreement is a treaty for the purposes
of s. 35(3) of the Constitution Act, 1982 , it follows that special
principles of interpretation will apply to it. This Court has stated many times
that Aboriginal treaties are to be interpreted broadly, flexibly and generously
(R. v. Badger, [1996] 1 S.C.R. 771, at paras. 76‑78; R. v.
Sundown, [1999] 1 S.C.R. 393, at para. 24; Sioui, at p. 1043; Simon,
at p. 404, see also Sullivan, at p. 513). In Marshall (1999),
McLachlin J. (as she then was), dissenting but not on this point, provided what
is now the most frequently cited summary of the relevant interpretive
principles, as they have been developed by this Court (at para. 78):
This Court has set out the principles governing
treaty interpretation on many occasions. They include the following.
1. Aboriginal treaties constitute a unique type
of agreement and attract special principles of interpretation: R. v. Sundown,
[1999] 1 S.C.R. 393, at para. 24; R. v. Badger, [1996] 1 S.C.R. 771, at
para. 78; R. v. Sioui, [1990] 1 S.C.R. 1025, at p. 1043; Simon
v. The Queen, [1985] 2 S.C.R. 387, at p. 404. See also: J. [Sákéj]
Youngblood Henderson, “Interpreting Sui Generis Treaties” (1997), 36 Alta.
L. Rev. 46; L. I. Rotman, “Defining Parameters: Aboriginal Rights, Treaty
Rights, and the Sparrow Justificatory Test” (1997), 36 Alta. L. Rev. 149.
2. Treaties should be liberally construed and
ambiguities or doubtful expressions should be resolved in favour of the
aboriginal signatories: Simon, supra, at p. 402; Sioui, supra,
at p. 1035; Badger, supra, at para. 52.
3. The goal of treaty interpretation is to
choose from among the various possible interpretations of common intention the
one which best reconciles the interests of both parties at the time the treaty
was signed: Sioui, supra, at pp. 1068‑69.
4. In searching for the common intention of the
parties, the integrity and honour of the Crown is presumed: Badger, supra,
at para. 41.
5. In determining the signatories’ respective
understanding and intentions, the court must be sensitive to the unique
cultural and linguistic differences between the parties: Badger, supra,
at paras. 52‑54; R. v. Horseman, [1990] 1 S.C.R. 901, at p.
907.
6. The words of the treaty must be given the
sense which they would naturally have held for the parties at the time: Badger,
supra, at paras. 53 et seq.; Nowegijick v. The Queen,
[1983] 1 S.C.R. 29, at p. 36.
7. A technical or contractual interpretation of
treaty wording should be avoided: Badger, supra; Horseman,
supra; Nowegijick, supra.
8. While construing the language generously,
courts cannot alter the terms of the treaty by exceeding what “is possible on
the language” or realistic: Badger, supra, at para. 76; Sioui,
supra, at p. 1069; Horseman, supra, at p. 908.
9. Treaty rights of aboriginal peoples must not
be interpreted in a static or rigid way. They are not frozen at the date of
signature. The interpreting court must update treaty rights to provide for
their modern exercise. This involves determining what modern practices are
reasonably incidental to the core treaty right in its modern context: Sundown,
supra, at para. 32; Simon, supra, at p. 402.
[108]
The rationale behind this interpretive approach is that the negotiation
of historical treaties was marked by “significant differences” in the
signatories’ languages, concepts, cultures and world views. This meant that the
Crown and the Aboriginal signatories had fundamentally different understandings
of the exact nature of their agreements (L. I. Rotman, “Taking Aim at the
Canons of Treaty Interpretation in Canadian Aboriginal Rights Jurisprudence”
(1997), 46 U.N.B.L.J. 11, at p. 20). Because of these contextual
factors, Aboriginal treaties are to be interpreted in light of the contexts in
which they were signed, and that interpretation must be both liberal and
dynamic so as to avoid the freezing of rights, while any ambiguity is to be
resolved in favour of the Aboriginal signatories.
[109]
Applying these principles, without adaptation, to the interpretation of
modern agreements, as opposed to historical ones, is not uncontroversial.
Appellate courts have held that, because the circumstances that support a
generous interpretation of historical treaties do not always exist in the
context of modern agreements, courts should not automatically take such an
approach without first considering whether it is necessary. Indeed, both the
courts below reviewed the distinct circumstances of the negotiation of modern
treaties in their analyses, and the appellant urges this Court to take the same
approach as them. The Cree respondents and the intervener Assembly of First
Nations strongly object to this, however.
[110]
The trial judge applied the principles set out in Cree School Board to
the instant case. Section 22 was given a large and liberal interpretation,
consistent with the government’s fiduciary obligation towards the Cree. The
parties’ intentions and interests were analysed reasonably, taking into account
the historical and judicial context. It was considered important to remember
that the Agreement had been the result of lengthy negotiations in which all the
parties had been represented by lawyers and that this situation was very
different from the circumstances of the negotiation of historical treaties
(para. 135). Although the Court of Appeal noted that neither it nor the Federal
Court of Appeal had in interpreting the Agreement taken the constitutional
status of the Agreement expressly into account, it nevertheless chose to adopt
the reasons in Cree School Board, with one minor caveat:
[translation]
These various elements lead the Court to conclude that a treaty that on the one
hand confers constitutionally protected rights and on the other enjoys
paramountcy over any inconsistent Canadian and Quebec laws must, according
to the principles stated by Rousseau‑Houle, J.A. in Cree School Board,
be interpreted in conjunction with an additional element drawn from the
submission of counsel for the Aboriginal parties: where two or more
interpretations of the text may reasonably be argued, the interpretation that
is most consistent with the interests of the Aboriginal signatories must
prevail. Emphasis is placed on the reasonableness of the interpretation.
[Emphasis added; para. 135.]
[111]
The courts below found support for their interpretive approach in the
reasons of Rousseau-Houle J.A. in Cree School Board, and Décary J.A. in Eastmain
Band. In the latter case, Décary J.A. noted that, “while the interpretation
of agreements entered into with the Aboriginals in circumstances such as those
which prevailed in 1975 must be generous, it must also be realistic, reflect a
reasonable analysis of the intention and interests of all the parties who
signed it and take into account the historical and legal context out of which
it developed” (p. 518).
[112]
In Cree School Board, Rousseau‑Houle J.A. also refused to
systematically resolve every ambiguity in favour of the Aboriginal signatories,
noting in particular that they had been ably represented by lawyers:
[translation] These considerations lead me to conclude that
paragraphs 16.0.22 and 16.0.23 of the Agreement must be interpreted broadly,
liberally and in compliance with the governments’ fiduciary obligation toward the Crees. This fiduciary relation must,
however, reflect a reasonable analysis of the signatories’ intention and interest, and take into account the
historical and juridical context that produced the Agreement. Given that the
Crees were counselled by attorneys and that the Agreement can be characterized
as “modern”, ambiguity cannot systematically be interpreted in
the Crees’ favour. [para. 98]
[113]
Although this Court has yet to pronounce on this particular issue, it
did note in R. v. Howard, [1994] 2 S.C.R. 299, that the 1923 treaty at
issue in that case did “not raise the same concerns as treaties signed in the
more distant past or in more remote territories where one can legitimately
question the understanding of the Indian parties” (p. 306). On this point,
Gonthier J., writing for the Court, relied on Sioui, at p. 1036,
and Eastmain Band, at pp. 515‑16.
[114]
The intervener Assembly of First Nations and the Cree respondents
strongly urge us to reject the interpretive approach adopted in the courts
below. The Cree respondents argue that the same rules of interpretation apply
to all Aboriginal treaties, whether historical or modern (Respondent’s Factum,
at p. 16). Similarly, the Assembly of First Nations challenges the
decision in Eastmain Band as the starting point for a rigid,
categorical split in interpretive approaches (Intervener’s Factum, at p. 3).
Both the Cree respondents and the intervener rely on the following passage from
Marshall (1999) in support of their submissions:
This raises the issue of whether it is useful to slot treaties into different
categories, each with its own rules of interpretation. The principle that each
treaty must be considered in its unique historical and cultural context
suggests that this practice should be avoided. [para. 80]
However, the
approach to the interpretation of modern treaties adopted in Eastmain Band
and Cree School Board does not necessarily lead to the consequences
suggested in these submissions. First, when she urged against slotting
treaties into different interpretive categories, McLachlin J. was addressing
the hypothetical differences, for interpretation purposes, between “peace”
treaties and “cession” treaties. In other words, the issue related to the
content of the treaty, not the time period when it was signed. A more accurate formulation
of the issue raised in the case at bar, however, is whether the
rationale for the approach taken in interpreting historical treaties — and
specifically the requirement that every ambiguity be resolved in favour of the
Aboriginal signatories — ought to apply automatically or systematically to the
interpretation of modern agreements. In other words, the issue relates to the
context in which an agreement was negotiated and signed, not to the date of its
signature.
[115]
In Eastmain Band and Cree School Board, the courts did not
suggest that the generous and flexible approach to interpretation be rejected
outright when the treaty being interpreted happens to be a modern one. Rather,
they simply recognized that the circumstances at the root of the
principle that ambiguities in historical treaties must be resolved in favour of
the Aboriginal signatories — unequal bargaining skill and vulnerability of the
Aboriginal parties in particular — do not necessarily exist in the context of a
modern agreement (see e.g. Rotman, at p. 23; Sullivan, at p. 525). The
likelihood of ambiguity, though clearly not eliminated, is nevertheless
significantly reduced. Indeed, the parties’ mutual promises are likely to be
set out more clearly and more exhaustively. The court must look first to the
parties’ common intention in light of the context of their specific agreement,
and its analysis must be reasonable.
[116]
Furthermore, this Court has stated that the honour of the Crown infuses
both the making of treaties and, ultimately, the interpretation of treaties by
the courts (Haida Nation v. British Columbia (Minister of Forests), 2004
SCC 73, [2004] 3 S.C.R. 511, at para. 19; Mikisew Cree First Nation, at
para. 51). The honour of the Crown requires it, in the treaty‑making
process, to try to reconcile Aboriginal rights and interests with those of the
public more generally, because the Crown must be mindful of Aboriginal
interests but must also consider the public interest. Modern agreements thus
reflect a mixture of rights, obligations, payments and concessions that have
already been carefully balanced (Sullivan, at p. 525). In negotiations,
therefore, the Crown must, and does, actively consider the Aboriginal party’s
interests.
[117]
There are important policy reasons in favour of this understanding of
the context of modern treaties. This Court has observed, in a case concerning
the duty to consult, that “[a]t all stages, good faith on both sides is
required” (Haida Nation, at para. 42). The principle underlying
this requirement also extends to the treaty negotiation process. Good faith on
the part of all parties should be fostered and encouraged. This goal would be
undermined by an interpretive approach under which all ambiguities are
automatically resolved in favour of the Aboriginal parties, as such an approach
might encourage the parties to use vague language in the hope that later
litigation would produce a result more favourable than what could be obtained
through negotiation (see Eastmain Band, Décary J.A., at p. 518).
[118]
When interpreting a modern treaty, a court should strive for an
interpretation that is reasonable, yet consistent with the parties’ intentions
and the overall context, including the legal context, of the negotiations. Any
interpretation should presume good faith on the part of all parties and be
consistent with the honour of the Crown. Any ambiguity that arises should be
resolved with these factors in mind. In the specific case of the Agreement, we
have the benefit of a legislative preamble which clearly states its purpose and
effect. And as Décary J.A. noted in Eastmain Band, all parties to the
Agreement were represented by counsel, and the result of the negotiations was
set out in detail in a 450-page legal document. The negotiations were part of a
policy initiative whose objective was to settle land claims through negotiation
rather than litigation. There was plenty of “give and take”.
[119]
The Agreement is a modern treaty, and how it is interpreted and applied
will be critical to our decision on the issues raised in this appeal. Because
this interpretive exercise will necessarily be influenced by the jurisdiction
under which the Project falls, it will be helpful to discuss the constitutional
powers relevant to this case.
B. Constitutional Powers Relevant to This
Case
[120]
An inquiry into which level of government has environmental jurisdiction
over the Project must begin with the oft-repeated observation that the
environment is not a matter over which one level of government has exclusive
jurisdiction. As La Forest J. said in Oldman (at p. 63):
I agree that the Constitution Act, 1867 has
not assigned the matter of “environment” sui generis to either the
provinces or Parliament. The environment, as understood in its generic sense,
encompasses the physical, economic and social environment touching several of
the heads of power assigned to the respective levels of government.
[121]
Legislation on environmental matters must therefore be related to at
least one constitutional head of power. The inquiry into whether federal
jurisdiction can be validly invoked turns on whether the activity or, as in
this case, the Project can be viewed as having a federal aspect. Thus, federal
jurisdiction will be validly exercised, and federal environmental legislation
will apply to the extent that the legislation is “truly in relation to an
institution or activity that is otherwise within [federal] legislative
jurisdiction”: Oldman, at p. 72. Federal legislation concerning the
environment has been upheld on the bases, for example, of the national concern
branch of the s. 91 peace, order, and good government power (R. v. Crown
Zellerbach Canada Ltd., [1988] 1 S.C.R. 401) and of the s. 91(27)
criminal law power (R. v. Hydro-Québec, [1997] 3 S.C.R. 213).
[122]
In the case at bar, the Attorney General of Canada relies on the federal
fisheries power (s. 91(12) ) and the dicta in Oldman as a basis
for federal jurisdiction over the Project and, by extension, for the
applicability of the licensing provisions of the Fisheries Act and, in
turn, the environmental assessment provision of the CEAA that they
trigger.
[123]
The AGQ, in arguing in favour of provincial jurisdiction over the
Project and a provincial environmental assessment under the Agreement, relies
on several heads of power under the Constitution Act, 1867 : public lands
(s. 92(5) ), local works and undertakings (s. 92(10) ), property and civil
rights (s. 92(13) ), matters of a merely local or private nature
(s. 92(16) ), and non‑renewable natural resources in the province
(s. 92A).
[124]
The nature of the Project — the development of a vanadium mine — falls
under the province’s jurisdiction over either local works and undertakings,
property and civil rights in the province, or non‑renewable natural
resources in the province. However, the Project’s impact on fish habitat
engages federal jurisdiction. The question, then, is whether the nature of the
Project or its impact is what determines which assessment should be conducted.
[125]
In our view, the answer to this question turns on the interpretation of
the Agreement. The status of the Agreement as both a constitutional document
that protects rights and a supra‑legislative intergovernmental agreement
must remain at the forefront of this Court’s analysis. Consideration must also
be given to the circumstances in which the Agreement was signed to ensure that
the analysis is consistent with the intent and goals of all the parties.
C. Interpretation and Application of the
Agreement
(1) Review of the Agreement’s
Environmental Assessment Process and Context
[126]
Before we turn to the substantive provisions of the Agreement that are
directly in issue in this appeal, it will be helpful to begin with a brief
overview of the environmental assessment scheme contemplated in the Agreement.
The relevant part of the Agreement is a central aspect of the intergovernmental
nature of the James Bay Agreement. Well before the CEAA was adopted, the
federal and provincial governments agreed with the First Nations parties to
establish what all the parties intended at the time to be a comprehensive
scheme for the assessment of land development projects. Section 22 establishes
the environmental and social protection regime applicable in the Territory (s.
22.2.1), which is designed to minimize the negative environmental and social
impact of development on the Territory’s Aboriginal inhabitants and wildlife
while at the same time recognizing Quebec’s right to develop the Territory.
Section 22.2.4 sets out a number of guiding principles to which each government
must give due consideration in exercising its authority under Section 22 .
Those principles focus overwhelmingly on protecting Aboriginal hunting, fishing
and trapping rights, minimizing the environmental and social impact on
Aboriginal inhabitants, and promoting the involvement of the Cree in the
decision-making process. The overarching purpose of Section 22 is to ensure the
participation of and consultation with Aboriginal peoples at all stages of the
environmental assessment process while promoting an efficient process: a single
environmental assessment is the rule, duplication the exception.
[127]
Section 22 also sets out in detail the procedure to be followed in the
environmental impact process itself. The Agreement lists projects that are
automatically subject to an assessment (s. 22.5.1) and projects that are
not subject to one (s. 22.5.2). Section 22.3.1 creates an Advisory Committee
that is responsible for reviewing and overseeing the administration and
management of the environmental and social protection regime; its members
include representatives from all three levels of government.
[128]
The proponent of a development project must submit preliminary
information to the appropriate Administrator (s. 22.5.11), whose identity
depends on which government has jurisdiction over the project (s. 22.1.1). This
information is then transmitted to the appropriate Evaluating Committee (s.
22.5.12). The Evaluating Committee studies the project and makes
recommendations to the Administrator concerning the proper scope of an
environmental assessment (s. 22.5.14). The membership of the Evaluating
Committee is set out in s. 22.5.6, and voting rights depend on which government
has jurisdiction over the project. The Administrator then considers the
Evaluating Committee’s recommendations and decides whether to proceed with a
review and an assessment (ss. 22.5.4 and 22.5.14). When necessary, the
Administrator may give instructions or make recommendations to the proponent
with respect to the environmental assessment (s. 22.5.15).
[129]
The project’s proponent then prepares an impact statement in accordance
with Schedule 3 to Section 22 and must specifically and meaningfully address
the project’s impact on the Cree populations potentially affected by it (s.
22.6.8). The impact statement is submitted to the Administrator, who transmits
it to the appropriate review body (s. 22.6.10). The review body that will have
jurisdiction over the project depends on which government is responsible for
the project (ss. 22.6.1 and 22.6.4). Importantly, there is one review body
only. It transmits the impact statement to the Cree Regional Authority
(s. 22.6.11), which may then make representations to the applicable review
body (s. 22.6.12). The review body has the ultimate authority to recommend
whether the project should proceed and, if so, under what terms and conditions
(s. 22.6.13).
[130]
As is clear from this overview, although an environmental assessment
focuses on the impact of the particular project, which assessment procedure
applies to the project depends on the nature of the project. Which
Administrator is responsible for a project depends on whether the project falls
within federal or provincial jurisdiction (s. 22.1.1). In the cases of the
Advisory Committee, Evaluating Committee and review bodies established by
Section 22, a number of factors relating to their composition and
administration also depend on whether the project falls within “exclusive”
federal or provincial jurisdiction (ss. 22.3.4 and 22.5.7). Most
significantly, when the project is ultimately referred to a review body
pursuant to either s. 22.6.1 or s. 22.6.4, the membership of that body is
limited to representatives of the Cree Regional Authority and of the government
with jurisdiction over the project. In other words, if the project falls under
provincial jurisdiction, the review body will have no representation from the
federal government, and vice versa.
(2) Application
[131]
It is in this context that we must interpret the provision of Section 22
that is central to the disposition of this appeal. At issue is whether this
provision is determinative of the assessment process, as would have been the
case prior to the enactment of the CEAA , or whether the enactment of the
CEAA changed the nature of the constitutional ordering established by
the Agreement. For ease of reference, we will reproduce s. 22.6.7 in its
entirety:
22.6.7 The Federal Government, the Provincial
Government and the Cree Regional Authority may by mutual agreement combine the
two (2) impact review bodies provided for in this Section and in particular
paragraphs 22.6.1 and 22.6.4 provided that such combination shall be without
prejudice to the rights and guarantees in favour of the Crees established by
and in accordance with this Section.
Notwithstanding the above, a project shall not
be submitted to more than one (1) impact assessment and review procedure unless
such project falls within the jurisdictions of both Québec and Canada or unless
such project is located in part in the Territory and in part elsewhere where an
impact review process is required. [Emphasis added.]
Section 22.6.7
thus creates two exceptions to the general rule that a development project will
be subject to only one environmental assessment process: where the project
itself falls within the jurisdictions of both the federal and provincial
governments, and where the project is located partly in the Territory and
partly in an area outside the Territory where an environmental assessment is
required. The question is whether, because the impact of the Project on fish
habitat — a matter of federal jurisdiction — brings it “within the
jurisdictions of both Québec and Canada”, the first exception applies to
override the general rule of only one assessment.
[132]
Those arguing that the answer to this question is yes also rely on s.
22.7.5, which reads as follows:
22.7.5 Nothing in the present Section shall be
construed as imposing an impact assessment review procedure by the Federal
Government unless required by Federal law or regulation. However, this shall
not operate to preclude Federal requirement for an additional Federal impact
review process as a condition of Federal funding of any development project.
There is no
suggestion that the Project has received any federal funding to which an
environmental assessment could be attached as a condition. If it had received
such funding, the federal government would be perfectly entitled to require an
additional environmental assessment. Whether an additional federal assessment
of the Project is required by s. 22.7.5 therefore depends on the interpretation
of that provision’s first sentence. But that sentence says nothing more than
that Section 22 does not impose any obligations on the federal government other
than those ordinarily required by general federal law or regulation. In view of
the parties’ express intention that the Agreement constitute a comprehensive
governance scheme for the entire Territory, that there be no other government
assessment process, that there be no parallel process in the Agreement itself,
that it provide for only one environmental assessment as the general rule, and
that it be paramount over all other laws of general application that are inconsistent
with it, s. 22.7.5 cannot be interpreted as triggering a separate federal
environmental assessment of the Project under the CEAA . To agree that
the CEAA should prevail over the specific provisions of the Agreement
would be to subvert the constitutional ordering established and intended by the
parties to the Agreement.
[133]
Section 22.7.5 must be understood for what it really is: a
transitional provision. Indeed, it is significant that this provision is found
in s. 22.7, which is entitled “Final Provisions”, and more specifically among
the transitional provisions set out in ss. 22.7.5 to 22.7.9. Section 22.7.6 explicitly sets out time
requirements and ss. 22.7.8 and 22.7.9 deal with the effects of the
transitional provisions. The effect of s. 22.7.5 is that there was to be no
federal assessment process until the implementing statute came into force, at
which time the one provided for in the Agreement would be established. If s. 22.7.5 were read as a permanent provision, it would
literally say that the federal assessment process under the Agreement will
never be applicable and that only a process provided for in other federal
legislation will be. As discussed, the Agreement explicitly provides that it is
without force of law until legislation, both federal and provincial, is enacted
to enforce it. A mechanism was needed to address the application of the law
during the period between the signing of the Agreement and its coming into
force. As provincial legislation concerning the environment was in force at
that time, s. 22.7.7 provided that it would apply in the interim. This could
not be the case at the federal level, however, because there was as yet no
federal environmental legislation in force. Section 22.7.5 was therefore
included in order to fill this potential legal vacuum, and it would apply to
environmental matters until the coming into force of the authorizing
legislation. As a result, during the transitional period, the Agreement would
not require the federal government to conduct an evaluation process that was
not otherwise required under existing federal law. However, the parties judged
it necessary to further specify that the federal government was entitled, as a
condition of federal funding for any development project, to require an
environmental assessment on a purely administrative basis.
[134]
The issue, then, is whether the more general exception in s. 22.6.7
applies in this case. More specifically, it must be determined whether the
Project is a project “within the jurisdictions of both Québec and Canada” for
the purpose of triggering a separate assessment process. From this perspective,
it is clear that Section 22, when read as a whole, provides that it is the
constitutional jurisdiction applicable to the nature of a project that
determines which environmental assessment is to be conducted. The Project falls
within exclusive provincial jurisdiction and therefore does not fall within
both federal and provincial jurisdiction, which means that the exception to the
general rule in s. 22.6.7 does not apply. More fundamentally, nothing in
the language of Section 22 supports the conclusion that a project’s impact can
trigger a second environmental review process where the project itself falls
within the jurisdiction of one government and it has effects that fall within
that of the other government.
[135]
If we were to accept the argument that a project’s impact could trigger
a separate environmental review process, the consequence would be to turn the
exception into the rule. Such a conclusion would directly contradict the clear
intention of the parties. The approach taken by our colleague Binnie J. is
inconsistent with the spirit of the Agreement, and perhaps even with its words.
He focuses on the fact that a federal permit is issued only after the
assessment process under the Agreement has been completed. However, because of
the environmental assessment under the CEAA that necessarily accompanies
the permit-issuing process, the Project would then be subject to a second environmental
assessment process, contrary to the express terms of the Agreement.
[136]
The signatories to the Agreement were extremely careful to distinguish
between projects within federal jurisdiction and those within provincial
jurisdiction. The general rule is that there is to be only one environmental
assessment and that which one is to be conducted depends on the jurisdiction
within which the project itself falls; and there are only two narrow exceptions
to this rule. Moreover, in the limited circumstances in which two assessments
are required, the Agreement clearly states that the assessments may be combined
only with the mutual consent of the parties (s. 22.6.7). If this Court were to
find that jurisdiction for environmental assessment purposes depends on both
the nature and the impact of a project, the distinctions the parties were so
careful to draw would become meaningless. The parties drew these distinctions
for a reason, and the Court ought to give effect to them.
[137]
A further, related reason exists for concluding that a project’s impact
cannot trigger a separate environmental assessment process. The Agreement
concerns Aboriginal peoples and their territory as well as the environment. The
first of these matters is within the exclusive jurisdiction of the federal
government, while the second falls within shared provincial and federal
jurisdiction. Therefore, any proposed project falling within provincial
jurisdiction will necessarily have an effect on a federal head of power. If two
environmental assessment processes were required every time a project had an
effect on either of these two matters, the exception of more than one process
would become the rule. Décary J.A. in fact recognized this in Eastmain
Band:
[B]y definition, therefore, any development project has implications in
at least one area of federal jurisdiction, that is, Indians and lands reserved
for the Indians (Constitution Act, 1867, subsection 91(24) ), and almost
certainly in an area of shared jurisdiction, that is, the environment.
Furthermore, it is self-evident that any development project in Quebec will
have an impact on areas of provincial jurisdiction, such as natural resources
(92A) [as enacted by the Constitution Act, 1982 , R.S.C., 1985, Appendix
II, No. 44, s. 50 ], public lands, timber and wood (92(5)), local works and
undertakings (92(10)) and matters of a purely local or private nature in the
province (92(16)). The parties to the Agreement did not take so much care in
distinguishing between the respective roles of each government only to arrive
at a solution which gives each of them equal decision-making power over every
project, and automatically creates an overlap and a total impasse, the moment
one government authorizes a project and the other does not. [pp. 527-28]
[138]
The provisions of Section 22, and the objectives and principles that
underlie the Agreement as a whole, lead to the conclusion that the Project is
subject to a provincial environmental assessment only. The Agreement, which is
of course both a s. 35 treaty and an intergovernmental agreement that was made
binding by way of statutory implementation, involves no inappropriate
delegation of jurisdiction or legislative authority. A plain reading of the
Agreement against the backdrop of the circumstances and context in which it was
negotiated, drafted, signed and given statutory authorization indicates that it
was intended to establish a comprehensive and exhaustive scheme for the
governance and management of the Territory and that it is paramount over all
other federal and provincial laws of general application to the extent of any
inconsistency. It cannot be altered or modified without the consent of all the
signatories.
[139]
It is also important to stress that Section 22 explicitly addresses the
role and participatory rights of the Cree in the environmental assessment
process. They have both a substantive and a procedural role at each and every
stage of that process. All the section’s provisions in combination ensure the
continued participation of the Territory’s Aboriginal inhabitants in the
management, control and regulation of development in the Territory. Finally,
the Agreement must now be unequivocally understood as a constitutional document
that protects rights. Its status is thus not simply supra‑legislative.
[140]
A reading of Section 22 as a whole indicates that it is the nature of
the project that triggers the applicable environmental assessment process and
that the general rule is that there is to be only one assessment process. The
Project falls within provincial jurisdiction, which means that there is no
basis for setting up a joint review body. The federal process under the CEAA ,
which does not provide for either substantive or procedural participation by
the Cree, is inconsistent with the provisions of the Agreement and cannot
apply.
[141]
The CEAA was enacted after the Agreement had been signed and
implemented by statute. It is clear from the Agreement and its authorizing
legislation that neither party can unilaterally modify its terms. In light of
the constitutional normative hierarchy, the CEAA cannot prevail to
impose a parallel process in addition to the ones provided for in the
Agreement. Any other interpretation would mean that the federal government can
unilaterally alter what was intended to be a comprehensive, multilateral
scheme. The federal government is therefore prohibited from effectively and
unilaterally modifying the procedure established by the Agreement, or
derogating from the rights provided for in the Agreement, by purporting to
attach conditions based on external legislation of general application.
[142]
The practical effect of this interpretation is that, if the Minister
determines that a permit must be issued under the Fisheries Act , the
Minister must issue one on the basis of the environmental processes established
by the Agreement and cannot insist that an additional environmental process be
undertaken pursuant to the CEAA . The environmental review process under
the James Bay Agreement is paramount.
V. Conclusion
[143]
For these reasons, we would allow the appeal, restore the judgment of
the Quebec Superior Court and declare that the Project is subject to the
provincial environmental process set out in the Agreement. There will be no
order as to costs.
APPENDIX
Fisheries
Act, R.S.C. 1985, c. F‑14
34. (1) For the purposes of sections 35 to
43 ,
.
. .
“fish habitat” means spawning grounds and nursery,
rearing, food supply and migration areas on which fish depend directly or
indirectly in order to carry out their life processes;
.
. .
35. (1) No person shall carry on any work or
undertaking that results in the harmful alteration, disruption or destruction
of fish habitat.
(2) No person contravenes subsection (1) by
causing the alteration, disruption or destruction of fish habitat by any means
or under any conditions authorized by the Minister or under regulations made by
the Governor in Council under this Act.
Canadian
Environmental Assessment Act, S.C. 1992, c. 37
5. (1) [Projects requiring environmental
assessment] An environmental assessment of a project is required before a
federal authority exercises one of the following powers or performs one of the
following duties or functions in respect of a project, namely, where a federal
authority
.
. .
(d) under a provision prescribed pursuant to paragraph 59(f),
issues a permit or licence, grants an approval or takes any other action for
the purpose of enabling the project to be carried out in whole or in part.
14. [Environmental assessment process] The
environmental assessment process includes, where applicable,
(a) a screening or comprehensive study and the preparation
of a screening report or a comprehensive study report;
(b) a mediation or assessment by a review panel as provided
in section 29 and the preparation of a report; and
(c) the design and implementation of a follow‑up
program.
16. (1) [Factors to be considered] Every
screening or comprehensive study of a project and every mediation or assessment
by a review panel shall include a consideration of the following factors:
(a) the environmental effects of the project, including the
environmental effects of malfunctions or accidents that may occur in connection
with the project and any cumulative environmental effects that are likely to
result from the project in combination with other projects or activities that
have been or will be carried out;
(b) the significance of the effects referred to in paragraph
(a);
(c) comments from the public that are received in accordance
with this Act and the regulations;
(d) measures that are technically and economically feasible
and that would mitigate any significant adverse environmental effects of the
project; and
(e) any other matter relevant to the screening,
comprehensive study, mediation or assessment by a review panel, such as the
need for the project and alternatives to the project, that the responsible
authority or, except in the case of a screening, the Minister after consulting
with the responsible authority, may require to be considered.
(2) In addition to the factors set out in
subsection (1), every comprehensive study of a project and every mediation or
assessment by a review panel shall include a consideration of the following
factors:
(a) the purpose of the project;
(b) alternative means of carrying out the project that are
technically and economically feasible and the environmental effects of any such
alternative means;
(c) the need for, and the requirements of, any follow‑up
program in respect of the project; and
(d) the capacity of renewable resources that are likely to
be significantly affected by the project to meet the needs of the present and
those of the future.
(3) The scope of the factors to be taken into
consideration pursuant to paragraphs (1)(a), (b) and (d)
and (2)(b), (c) and (d) shall be determined
(a) by the responsible authority; or
(b) where a project is referred to a mediator or a review
panel, by the Minister, after consulting the responsible authority, when fixing
the terms of reference of the mediation or review panel.
(4) An environmental assessment of a project is
not required to include a consideration of the environmental effects that could
result from carrying out the project in response to a national emergency for
which special temporary measures are taken under the Emergencies Act .
16.1 [Community knowledge and aboriginal
traditional knowledge] Community knowledge and aboriginal traditional knowledge
may be considered in conducting an environmental assessment.
Joint
Review Panels
40. (1) [Definition of “jurisdiction”] For
the purposes of this section and sections 41 and 42, “jurisdiction” includes
.
. .
(d) any body established pursuant to a land claims agreement
referred to in section 35 of the Constitution Act, 1982 and having
powers, duties or functions in relation to an assessment of the environmental
effects of a project;
.
. .
42. [Deemed substitution] Where the
Minister establishes a review panel jointly with a jurisdiction referred to in
subsection 40(1), the assessment conducted by that panel shall be deemed to
satisfy any requirements of this Act and the regulations respecting assessments
by a review panel.
Public
Hearing by a Federal Authority
43. (1) [Substitute for review panel] Where
the referral of a project to a review panel is required or permitted by this
Act and the Minister is of the opinion that a process for assessing the
environmental effects of projects that is followed by a federal authority under
an Act of Parliament other than this Act or by a body referred to in paragraph
40(1)(d) would be an appropriate substitute, the Minister may approve
the substitution of that process for an environmental assessment by a review
panel under this Act.
.
. .
44. [Conditions] The Minister shall
not approve a substitution pursuant to subsection 43(1) unless the Minister is
satisfied that
(a) the process to be substituted will include a
consideration of the factors required to be considered under subsections 16(1)
and (2) ;
(b) the public will be given an opportunity to participate
in the assessment;
(c) at the end of the assessment, a report will be submitted
to the Minister;
(d) the report will be published; and
(e) any criteria established pursuant to paragraph 58(1)(g)
are met.
Appeal dismissed with costs, LeBel,
Deschamps, Abella and Charron JJ. dissenting.
Solicitors for the appellant: Bernard, Roy &
Associés, Montréal.
Solicitors for the respondents Grand Chief Dr. Ted Moses, the Grand
Council of the Crees (Eeyou Istchee) and the Cree Regional
Authority: Gowling Lafleur Henderson, Montréal.
Solicitor for the respondents the Attorney General of Canada, the
Honourable David Anderson, in his capacity as Minister of Environment, and the
Canadian Environmental Assessment Agency: Department of Justice,
Ottawa.
Solicitors for the respondent Lac Doré Mining
Inc.: Lavery, de Billy, Montréal.
Solicitor for the intervener the Attorney General for
Saskatchewan: Attorney General for Saskatchewan, Regina.
Solicitors for the intervener the Assembly of First
Nations: Pitblado, Winnipeg.
See Erratum [2010] 2
S.C.R. iv