Quebec (Attorney General) v. Moses

Quebec (Attorney General) v. Moses
Collection
Supreme Court Judgments
Date
2010-05-14
Neutral citation
2010 SCC 17
Report
[2010] 1 SCR 557
Case number
32693
Judges
McLachlin, Beverley; Binnie, William Ian Corneil; LeBel, Louis; Deschamps, Marie; Fish, Morris J.; Abella, Rosalie Silberman; Charron, Louise; Rothstein, Marshall; Cromwell, Thomas Albert
On appeal from
Quebec
Subjects
Aboriginal law
Constitutional law
Environmental law
Notes
SCC Case Information: 32693
Decision Content
SUPREME COURT OF CANADA
Citation: Quebec (Attorney General) v. Moses, 2010 SCC 17, [2010] 1 S.C.R. 557
Date: 20100514
Docket: 32693
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 contemplat