Supreme Court of Canada Interprets James Bay Treaty

Cristin Schmitz for The Lawyers Weekly

June 4, 2010

In its first interpretation of a modern comprehensive aboriginal treaty, the Supreme Court has split 5-4 to rule that the pioneering James Bay Treaty does not exempt a proposed vanadium mine in northern Quebec from an independent federal assessment of harm to fish in nearby lakes and rivers.

The mine proposal must be environmentally assessed twice - under the provisions of the federal Canadian Environmental Assessment Act (CEEA), as well as provincially, in line with the treaty's provisions. This is so unless Canada, Quebec, and the respondent James Bay Cree agree to combine the environmental reviews.

The court's majority, led by Justice Ian Binnie, also varied the 2008 decision of the Quebec Court of Appeal to require that the federal review process be conducted in line with "the Crown's duty to consult with the First Nations in relation to matters that may adversely affect their treaty rights."

Counsel for the Cree hailed the ruling as a win for the environment and their clients.

"From a national perspective, this decision, coupled with the Supreme Court's MiningWatch decision last January, confirms that the CEAA applies to projects, such as mining, that are under provincial jurisdiction that also have impacts in areas of federal jurisdiction, such as fisheries and navigable waters," suggested Jean-Sébastien Clément of Montreal's Gowlings, whose co-counsel were Robert Mainville (since appointed to the Federal Court), and Henry S. Brown of Gowlings' Ottawa office.

Brown told The Lawyers Weekly the decision marks the first time the Supreme Court has explicitly affirmed the widely held view that the James Bay Treaty has constitutional status under s. 35(1) of the Constitution Act, 1982.

Brown said the judgment also "affirms the application of the principles of the honour of the Crown, and the Crown's duty to consult aboriginal peoples in the context of modern treaties, an issue which will also be dealt with in the upcoming Little Salmon decision."

University of Manitoba law professor Bryan Schwartz, counsel for the intervener Assembly of First Nations (AFN), told The Lawyers Weekly the majority and minority opinions divide over how to balance the public's interests in satisfactory environmental reviews with the avoidance of the unnecessary delays, overlap, duplication and expense of multiple reviews. "Those tensions will resolved differently in different cases," Schwartz predicted.

Noting he was not speaking for his client, Schwartz said both the majority and minority give some guidance on how to approach, and interpret, modern land claims agreements. The majority said modern treaties are generally meticulously negotiated, with the assistance of legal counsel, by well-resourced parties. This is a far cry from the situation that prevailed for older treaties.

Justice Binnie emphasized that modern comprehensive treaties are analogous to contracts, and therefore close attention must be paid to a particular treaty's terms and structure.

Schwartz emphasized, however, that not all modern treaties are created in ideal circumstances. He pointed, for example, to the negotiation of the much criticized 1977 Manitoba Northern Flood Agreement which was unclear and sparked years of litigation. "You have to look at all the circumstances," he suggested.

Counsel for the intervener Saskatchewan government, Mitch McAdam of Regina, told The Lawyers Weekly the Supreme Court did not deal with the province's novel and far-reaching argument that the federal government's power over fisheries - which underpins much of its environmental oversight of mines and other matters of provincial jurisdiction - does not extend to provincially owned lakebeds or riverbeds. That would encompass about 99 per cent of Saskatchewan's waters

"I think it's an issue that the court is inevitably going to have to look at," predicted McAdam.

He suggested as well that the majority's determination that the 1975 James Bay Treaty contemplated the future application of the CEAA - even though the latter wasn't created until 1992 - illustrates that lawyers must be truly forward-thinking when engaged in treaty-making.

"If you are a lawyer involved in negotiating these sorts of agreements you really can't just look at the legal situation as it exists at the time. You must anticipate that those laws can change into the future," McAdam advised.

In A.G. Quebec v. Moses the nine judges disagreed over the meaning of a few sentences governing environmental impact assessments contained in the 450-page James Bay and Northern Quebec Agreement. The comprehensive 1975 treaty signed by Canada and Quebec with 12,000 Cree and Inuit was meant to fulfill obligations assumed by Quebec when that province received more than 1 million square kilometres of land and lakes from Canada's northern territories in 1898 and 1912.

The appellant Attorney General of Quebec contended that no federal assessment of the proposed vanadium mine is necessary since the treaty-which is paramount over inconsistent federal or provincial laws - mandates only a provincial environmental assessment if the regulated subject falls into an area of exclusive provincial jurisdiction under the Constitution - in this case natural resources.

That position was accepted by the court's two francophone Quebecers, Justices Louis LeBel and Marie Deschamps, whose joint dissent was backed by Justices Rosalie Abella and Louise Charron.

However Justice Binnie and the rest of the court ruled that the treaty itself contemplates the application of federal fisheries licensing and environmental reviews mandated by federal laws of general application - in this case the Fisheries Act and the CEEA.

Since those federal laws are neither inconsistent with, nor excluded by, the treaty, the mine proposal must be comprehensively assessed under the CEEA because of the significant potential impact on fisheries, an area constitutionally reserved to the federal government, the majority held.

"Nothing in the treaty relieves the [mine] proponent from compliance with the ordinary procedures governing the issuance of the necessary [federal] authorization or permits," Justice Binnie wrote. "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."

The majority pointed to s. 22.7.5, which deals with environmental assessments. It stipulates that nothing in that section "shall be construed as imposing an impact assessment review procedure by the federal government unless required by federal law or regulation."

Reasoned Justice Binnie, "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, now s. 35(2)) 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."

By contrast, Quebec urged that the federal Fisheries Minister was bound to issue a fisheries permit, once the mining project was cleared by the provincial administrator appointed under to the treaty oversee the environmental review, or was approved by the Quebec Cabinet (which the treaty empowers to override the provincial administrator's decision.)

In their dissent, Justices LeBel and Deschamps reasoned that "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 [the agreement was signed] 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."

The minority also downplayed the significance of s. 22.7.5, which they described as a "transitional provision" defining how laws applied between the signing of the treaty and its coming into force.

According to Justice Binnie, that view amounts to rewriting the treaty. "The court ought to do the parties the courtesy of respecting the rights and obligations in the terms they agreed to," he said.

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