Canada: Québec Court Of Appeal Upholds Priority Of Treaty Rights Of Aboriginal Peoples Under James Bay And Northern Québec Agreement

Last Updated: August 28 2014
Article by Jean-Sébastien Clément and Catherine Fagan

Most Read Contributor in Canada, October 2018

On August 4, 2014, the Court of Appeal of Québec issued an important judgement upholding the priority of the treaty rights of the Cree, Inuit and Naskapis of Québec under Section 24 of the James Bay and Northern Québec Agreement (JBNQA). 

The Court of Appeal strongly endorsed the primacy of the treaty rights of the Cree, Inuit and Naskapis under the JBNQA as protected by the Constitution Act, 1982.  Laws or acts of the Crown that violate these treaty rights are generally without effect.  The judgement recognizes the priority of Aboriginal harvesting rights under the JBNQA over sports hunting.  It holds that consultation by the Crown must be meaningful, carried out in good faith and with an open mind.  Failure by the Crown to meet these obligations is a breach of its constitutional obligations and the honour of the Crown and gives rise to reparation for the Aboriginal parties affected.

The Court of Appeal granted the appeal of Makivik Corporation, the Grand Council of the Crees (Eeyou Istchee)/Cree Nation Government, and the Naskapi Nation of Kawawachikamach in the case of Makivik et al v. Québec regarding the violation by Québec of the consultation process set out in Section 24 of the JBNQA in its decisions regarding the 2011-2012 sports hunt of the Leaf River and George River caribou herds. 

Given a dramatic decline in the population of the Leaf River and George River caribou herds, the Hunting Fishing Trapping Coordinating Committee, a body comprising representatives of the Cree, Inuit, Naskapi, Québec and Canada established by Section 24 of the JBNQA, recommended certain restrictions on the sport hunt for the 2011-2012 season. 

The Québec Minister responsible for wildlife disregarded the recommendations of the Committee.  Without consulting the Committee, as provided for in Section 24, the Minister unilaterally changed the start date for the sports hunt for the Leaf River herd recommended by the Committee and allowed the sports hunt of the George River herd, contrary to the total prohibition recommended by the Committee.  The Native Parties took legal proceedings to challenge these acts by the Minister.

At trial, the Superior Court of Québec found that the Minister had failed to comply with the consultation requirements of Section 24 of the JBNQA.  However, it held that this non‑compliance was merely a procedural irregularity and so declined to declare that the Minister had breached his obligations under the JBNQA.

The Court of Appeal set aside the decision of the Superior Court and found that the Minister had breached his constitutional obligations and the honour of the Crown by violating the rights of the Aboriginal parties to be consulted under Section 24 of the JBNQA.

In reasons for judgement written by Mr. Justice Dalphond, the Court of Appeal held that the JBNQA, as a land claim agreement and treaty, creates rights for the Aboriginal peoples that are protected by section 35 of the Constitution Act, 1982.  Any law violating these treaty rights will generally be without effect, unless justified by government.

The Crown's obligation to consult regarding Aboriginal rights is not merely procedural; it demands, as well, the openness of mind necessary to make it meaningful.  This also applies to any consultation prescribed by a treaty in a manner respectful of the honour of the Crown codified by section 35 of the Constitution Act, 1982.  Non-compliance by the Minister with the consultation process set out in Section 24 on the basis that it would not be useful or would not change the final result therefore violated his constitutional obligations. 

This was not a purely procedural defect, but a breach of the honour of the Crown by failing to consult with an open mind in implementing a treaty that provides for a mechanism to reconcile the interests of the Aboriginal peoples.  The Minister was bound to consult in good faith before exercising his regulatory power, and to be receptive to the opinions and recommendations of the Coordinating Committee.

Québec did not demonstrate that these violations were justified within the meaning of the Sparrow judgement of the Supreme Court.  Treaty rights may not be violated lightly; the proof of justification must be clear and convincing. 

This is particularly true when, as in the case of the George River herd, the way of life of the Aboriginal peoples is in opposition to the financial interests of outfitters offering a recreational activity to non-Natives.  The Court of Appeal stated that these interests do not have to be reconciled, as the way of life of the Aboriginal peoples clearly takes precedence over recreational hunting, as provided for in the Agreement. 

The Minister's position that there was a need for urgent conservation measures was therefore contrary to the priority recognized for the Aboriginal peoples by the JBNQA (and the Aboriginal rights in the absence of such a treaty, as held in Tsilhqot'in Nation).  To try to reconcile the conservation of a herd necessary for the survival of Aboriginal peoples and the interests of outfitters was an operation forbidden by the Agreement and contrary to its spirit.

The Court of Appeal reserved the rights of the Native Parties to claim compensation for any harm suffered by the breaches.

Jean-Sébastien Clément and Catherine Fagan of Gowlings represent the Grand Council of the Crees (Eeyou Istchee)/Cree Nation Government in this case.

Click here to see the judgment Corporation Makivik et al v. Québec, 2014 QCCA 1455.

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