Copyright 2010, Blake, Cassels & Graydon LLP
Originally published in Blakes Bulletin on Environmental/Aboriginal Law, May 2010
The Supreme Court of Canada recently ruled that a mining project located in territory covered by the James Bay and Northern Quebec Agreement (Agreement) must be reviewed under the Canadian Environmental Assessment Act (CEAA) before Fisheries and Oceans Canada (DFO) can issue an authorization for the destruction of fish habitat under s. 35(2) of the federal Fisheries Act. This is the first Supreme Court decision interpreting the Agreement as a treaty under s. 35 of the Constitution Act and it will have a lasting impact on the interpretation of modern treaties with Aboriginal Peoples in Quebec and elsewhere in Canada.
The subject of the appeal was a proposed vanadium mine in the vicinity of Chibougamau, Quebec (the Project). The Project will involve disruptions to watercourses and lakes in the area, as well as construction of tailings ponds, all of which will result in the harmful alteration of fish habitat. Accordingly, the Project requires a permit under the Fisheries Act before it can proceed. The issue on appeal was whether such a permit would be issued by DFO automatically, following a provincial environmental review process mandated under the Agreement, or whether a separate federal CEAA process would be required. The Court upheld the latter course: the Agreement does not override the CEAA.
The Agreement is a sophisticated, modern aboriginal land claims treaty entered into by James Bay Cree and Inuit communities, the federal government and the government of Quebec in 1975. The Agreement contains provisions for social and environmental impact assessments on treaty lands. The Project is located on lands classified under the Agreement as Category III. Under the Agreement, the Cree have the right to be consulted and to provide input on projects on Category III lands, but do not have a veto right.
The Agreement provides a process for determining whether a proposed project falls under federal or provincial jurisdiction. In this case, all sides agreed that the Project generally falls under provincial jurisdiction. The Agreement sets out a process for a committee to study the project and make a recommendation to a provincial treaty administrator. The administrator makes a recommendation to the Quebec Cabinet, which can accept or overrule the recommendation.
In Moses, both the committee constituted under the Agreement and the provincial and federal authorities felt that the environmental impact statement submitted by the Project proponent fell short on its assessment of impact to fish and fish habitat. Litigation began before the matter was referred to the provincial administrator, after DFO announced it would require a comprehensive assessment of the Project under the CEAA.
THE MOSES DECISION
The Supreme Court of Canada clearly struggled with the outcome of this case, as indicated by the fact that it took the Court nearly a year after the hearing to release its decision (twice the normal period), and five members made up the majority decision while four members supported the minority opinion. Further, the two judgments split sharply on the correct method of analyzing the issue.
The majority held that the terms of the Agreement are lengthy, precise and must be interpreted like a modern contract among parties of equal sophistication. The Agreement contemplated an environmental review process leading up to the decision of the provincial administrator, as well as federal approvals where necessary. Further, the majority held that, under the Agreement, the federal government did not give up its constitutional jurisdiction in respect of fisheries in favour of the provincial process, particularly given the Quebec Cabinet's veto power over that process. As such, the majority saw no inconsistency in having the CEAA review process follow the review process set out in the Agreement. This result was consistent with the fact that the federal government has no input on the assessment process mandated by the Agreement.
The majority acknowledged that co-ordination of the federal and provincial assessments would be preferable, as long as the requirements of each process could be met. Here, the provincial assessment mandated by the Agreement was much less comprehensive (as to fisheries matters) than that which the CEAA requires, supporting the majority's decision. The minority opinion began from a very different perspective.
The minority referred to the interpretive principles developed by the Court in analyzing historic treaties between the Crown and Aboriginal Peoples, and held that those same principles remain applicable to the Agreement. Further, the minority referred extensively to the intentions of the parties to the Agreement, in support of the opposite result to that reached by the majority. As such, the minority would have held that once a project is approved under the provincial environmental and social impact review process mandated by the Agreement, DFO would have no option but to issue an authorization to the project proponent under s. 35(2) of the Fisheries Act. Given the majority decision, however, this opinion will not apply to this Project or future projects in the territory covered by the Agreement.
As a result of the Moses decision, projects within the territory covered by the James Bay and Northern Quebec Agreement will still require approval according to the process set out in the Agreement, but they will also need to follow the CEAA process, where required, to obtain certain federal permits. Going forward, the federal and provincial governments may co-ordinate their processes, but otherwise some projects may be subject to some duplication in environmental assessment.
Beyond answering the particular question at issue before the Court, this decision also provides insight into the interpretation of modern land claims agreements that have been negotiated over the past 40 years, and which continue to be negotiated in British Columbia. The majority in Moses, while fully acknowledging governments' duty to respect treaty rights, saw no need to interpret those rights any differently than the parties had drafted. Thus, according to the majority, the "honour of the Crown" and other general principles derived from previously decided aboriginal and treaty cases are of limited value in interpreting modern treaties. The courts, and those affected by modern treaties, should proceed on the basis that modern treaty parties mean what they say and say what they mean, even if that may result in some federal-provincial procedural overlap.
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