Jurisdiction, Constitutional, Declaratory Relief, Permits, Environmental Impact Assessments, Contract, Land Use, Cooperation, Forests, Licences
This is the first decision of the Supreme Court of Canada to examine a modern land claims agreement; in this case the James Bay and Northern Quebec Land Claim Agreement (JBNQA or the Agreement) between Canada, Quebec and the James Bay Cree and the Northern Quebec Inuit. That case involved the interpretation of the James Bay and Northern Quebec Agreement (“JBNQA”), although it could be said that the underlying issue was one of federal-provincial division of powers, with the treaty as the battleground. The JBNQA, among other things, established environmental assessment processes in which the James Bay Cree had the right to participate. There was one treaty-established process for projects within provincial jurisdiction, and another for projects in federal jurisdiction. The Court found the mine project in question to be in provincial jurisdiction for treaty purposes, despite its impact on fisheries (a matter of federal jurisdiction). The main dispute the Court addressed was whether or not, in addition to the provincial environmental assessment under the JBNQA, the fisheries impacts required a separate assessment under the Canadian Environmental Assessment Act (CEAA). Binnie J., writing for five judges, interpreted the CEAA assessment to be independent of and outside the treaty. It was a new approval process, created by legislation, which would be engaged after whatever procedures the JBNQA required were completed. As such, there was no inconsistency with the JBNQA, and both the provincial JBNQA process and CEAA could apply. In contrast, Lebel and Deschamps JJ. interpreted the JBNQA as an intergovernmental agreement as well as an Aboriginal treaty. They viewed it as establishing a comprehensive regime for management of the territory. Through this lens, they saw CEAA as inconsistent with the JBNQA, and therefore inapplicable. The majority denied the appeal but concluded that the project should be subject to a CEAA assessment rather than a federal assessment on the terms of Section 22 of the Agreement. In reaching this conclusion Justice Binnie relies heavily on two provisions of the Agreement, s.22.7.1 (permits to be granted under laws of general application) and s.22.7.5 (environmental assessment as a law of general application).